No. 135 E.D. Appeal Dkt. 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, dated November 3, 1983, October Term, 1982 at Nos. 1292-1295.
Alexander Hemphill, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Leslie Sudock, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson and Zappala, JJ., concur in the result. Nix, C.j., filed a dissenting opinion.
On May 18, 1983, a jury in the Court of Common Pleas of Philadelphia County found both appellant, Salvador Morales, and his co-defendant, Carlos E. Tirado, guilty of murder of the first degree, criminal conspiracy and possession of an instrument of crime. The following day, the same jury sentenced appellant to death for the murder of Jorge ("Georgie") Figueroa in a separate penalty proceeding as required by the Sentencing Code, 42 Pa.C.S.A. § 9711.*fn1 Appellant's co-defendant received a sentence of life imprisonment. Post-verdict motions were filed and denied by the Court of Common Pleas, and this automatic appeal followed. 42 Pa.C.S.A. §§ 9711(h)(1) and 722(4) and Pa.R.A.P. Rule 702(b).
The record discloses, largely through the testimony of Elizabeth ("Lisa") Colon and her brother, Heriberto ("Eddie") Colon, the following facts. Appellant and his brother, co-defendant Carlos Tirado (known as "Cobo"), sold heroin in North Philadelphia. Georgie Figueroa, the victim, owed them some money for drug purchases. Although the victim's mother had already given appellant some $600 on behalf of her son, appellant was unsatisfied. Accordingly, he summoned the victim, through a fourteen year old drug dealer in appellant's employ, to a house on North Orianna Street where Cobo lived with Lisa and Eddie Colon. The victim was led to the house at approximately 11:45 p.m. on August 29, 1982, entered, and went into the basement with
appellant, followed a few minutes later by Eddie. Also in the basement was appellant's other brother "Dency" and a young man called "Dice". Lisa Colon was upstairs.
In about five minutes, appellant came upstairs to the kitchen and took a large kitchen knife back down to the basement. After Cobo and Dice beat the victim, accusing him of "snitching" and of owing them money, appellant told Dency to kill the victim. When Dency refused, appellant slapped Dency in the face, and stabbed the victim numerous times with the kitchen knife until appellant announced he was dead. The group then returned upstairs. A short while later, the victim emerged from the basement, covered with blood. When he tried to escape by jumping out the window in the living room, Cobo grabbed him by his hair and stabbed him repeatedly with the same knife, killing him.
Elaborate efforts were made to clean up all of the blood in the basement and living room, including dismantling the living room couch and removing panelling in the basement. The victim's body was tied up, covered with plastic bags, put in a shopping cart and taken to the basement of an abandoned house only five doors away.
Acting on a tip from an anonymous caller, police discovered the victim's body, badly decomposed, in the abandoned house on North Orianna Street on September 9, 1982. An autopsy revealed that the victim had been stabbed at least twenty times and that the weapon had been wielded by two different persons. Investigation of the Colon home discovered a small human blood stain on a bureau in the basement that had apparently been overlooked.
Neither defendant testified at trial. Counsel for both men cross-examined the eyewitnesses at length in an attempt to impeach their credibility. Appellant's counsel elicited Lisa's admission that she and Cobo had been lovers and suggested that she had implicated appellant because she was protecting Cobo and her brother Eddie. Co-defendant's counsel attempted to show, through cross-examination, that Lisa was out to "get" Cobo because Cobo had jilted her for
another woman, and also because she wanted to protect Eddie. Both counsel attacked Eddie Colon's testimony on the grounds that he had cut a deal with the prosecutor to get favorable treatment in another prosecution for a conspiracy/homicide in which he had participated in exchange for his testifying against appellant and co-defendant in the instant case.
The jury believed the testimony of the eyewitnesses, however, and found both defendants guilty of murder of the first degree, conspiracy and possession of an instrument of a crime. Based upon the foregoing record evidence, we have no hesitation in finding that evidence sufficient beyond a reasonable doubt to sustain appellant's conviction for murder of the first degree, as well as the other convictions.*fn2
The following day, the penalty phase of the proceedings were conducted. The Commonwealth did not offer any further evidence against co-defendant Tirado in support of the death penalty. Against appellant, however, the Commonwealth introduced as aggravating circumstances evidence that he had been convicted by a jury in the Court of Common Pleas of Philadelphia County on April 7, 1983 of murder of the first degree for the unrelated killing of Julio Cruz, and had been sentenced to life imprisonment for that murder. Appellant did not testify at the penalty proceeding, nor did he permit his attorney to offer any evidence in his behalf.
Closing arguments were made by counsel for the defendants and for the Commonwealth, and the jury received instructions from the court. In less than three hours, the jury returned with a sentence of life imprisonment for co-defendant Tirado and a sentence of death for appellant. The jury found that the Commonwealth had met its burden of establishing two aggravating circumstances beyond a
reasonable doubt*fn3 and that there were no mitigating circumstances.
Our standard of review in cases of murder of the first degree in which a verdict of death has been rendered is established by the Sentencing Code, 42 Pa.C.S.A. § 9711(h), which provides:
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
Applying that standard, we now affirm appellant's convictions, his sentence of death and his sentences on the non-homicide convictions.
Appellant first asserts several instances of pretrial error. Initially, appellant alleges a speedy trial violation and claims that the court erred in granting the Commonwealth's petition for extension of time filed pursuant to Pa.R.Crim.Pro. Rule 1100(c). The original 180 day "run date" under Rule 1100 was March 28, 1983. The Commonwealth's petition for extension was filed on March 24th and argued on ...