No. 30 E.D. Appeal Docket 1984. Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, Imposed on Information Nos. 2942 and 2943, August Session, 1981.
Marlene S. Cooperman, Philadelphia, for appellant.
Robert B. Lawler (Chief/Appeals), Gaele M. Barthold (Chief/Pros.), Alan Sacks (Asst. Dist. Atty.) Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins in the majority opinion and files a concurring opinion. Larsen, J., files a concurring and dissenting opinion. Papadakos, J., files a concurring and dissenting opinion. McDermott, J., did not participate in the consideration or decision of this case.
This appeal from the first degree murder conviction of the Appellant George B. Goins comes to this Court directly from the Court of Common Pleas of Philadelphia County, the jury having decided upon, and the court having imposed, the sentence of death, 42 Pa.C.S. § 9711(h); Pa.R.A.P. 1941. Jurisdiction is vested with this Court pursuant to 42 Pa.C.S. § 722(4).
Although the Appellant has not in this appeal challenged the sufficiency of the evidence, this Court has an independent obligation in all capital cases to determine that the evidence is sufficient to prove murder of the first degree. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982) (reargument denied); cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Viewing the evidence in light most favorable to the Commonwealth, it was established that on the night of June 22, 1981, the Appellant's wife, Susan Goins, visited with some friends at the house of Cheryl Landers. Around midnight she telephoned her husband to tell him she would be on her way home soon, although she did not mention to him where she was. At around 1:45 a.m., June 23, Susan Goins left Landers's house. Before she left, Landers wrote down for her the new telephone number Landers had recently been given. Between 3:00 and 4:00 a.m., Landers received a telephone call from the Appellant, inquiring whether his wife was with her. Also at about 3:00 or 4:00 a.m. on June 23, 1981, Gertrude Watson, who lived in the row house neighboring the Appellant and his wife, heard arguing, screaming, and the sound of something falling, coming from the Goins residence.
Around 5:00 a.m., although he was not scheduled for work until 7:00, the Appellant was seen at his place of
employment, a home for retarded children, wearing blood covered clothing. It was later discovered that a medicine cabinet at the home had been broken into that morning. The Appellant was discovered semi-conscious by his mother in her home late in the afternoon, having ingested various drugs. He was taken to the hospital by the police, who had been called by the Appellant's mother.
The following day, June 24, Susan Goins's body was found, a claw hammer embedded in her skull, by her brother-in-law, the Appellant's brother, who had a key to the house. The police investigation of the house revealed no sign of forcible entry or theft. Medical examination determined that Susan Goins had been struck in the head with the hammer about twenty-five times; in addition numerous other bruises and scratches to the shoulders and arms were found.
The Appellant's defense rested largely upon his own testimony that his wife had not yet arrived home when he phoned Cheryl Landers; that he went to the subway station to meet his wife and accompany her home; and that when he returned he found his wife's body and was so distraught that he went to his work place where he attempted suicide by ingesting drugs. He explained the blood on his clothing as resulting from his actions in hugging his wife's body and trying to remove the hammer.
The jury clearly disbelieved the Appellant's version of the events and, as was its province, credited the testimony of the Commonwealth's witnesses. There can be no doubt that this evidence is sufficient to prove that the Appellant acted with premeditation and specific intent in killing his wife.
The Appellant's allegations of trial error are limited to two instances of what is characterized as misconduct by the prosecutor. The first of these instances occurred during defense counsel's closing argument to the jury. The prosecutor interrupted counsel's argument that the Commonwealth had failed to produce witnesses to rebut certain
of the defendant's testimony, stating to the court and the jury that defense counsel was "making misstatements." In addition to being patently frivolous, this argument is waived. Defense counsel objected to the interruption by the prosecutor and the court admonished the Commonwealth's attorney against further interruptions. No motion for mistrial was made. Defense counsel received the only relief he requested and the only relief to which he was entitled.
The second instance of misconduct complained of occurred during the prosecutor's closing argument to the jury. The Appellant cites two statements which he argues were direct or indirect statements of the prosecutor's opinion that the Appellant had killed his wife. In the first instance the prosecutor stated, "If you believe Gertrude Watson, this man [the Appellant] is not telling the truth. You decide that. That's your job. I can't give you my opinion. I can't say it." N.T. 5.234. It is difficult to discern in what regard this statement is objectionable, Watson and the Appellant having given contradictory testimony on the facts being addressed. In any event, the issue is waived for failure of trial counsel to object.
Also cited as prejudicial misconduct in the prosecutor's closing is the following statement:
The defendant himself said that one time she took pills. He called the police and he rushed her to the hospital . . . . What is the difference between the first time, when he found her dying, according to him, and the second time, when he found her dying? I tell you what the difference is. The difference is the second time he did it.
N.T. 5.252-53. Defense counsel's objection to this statement was overruled. Accepting the Appellant's argument that this was an improper statement conveying the prosecutor's opinion regarding the accused's guilt, it is not every intemperate remark which will result in the grant of a new trial. Only those remarks whose "unavoidable effect would be to prejudice the jury, forming in their minds fixed bias
and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict" will necessitate the ordering of a new trial. Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). The trial court's determination that the conduct complained of did not reach the level requiring a new trial is more than amply supported and cannot be characterized as an abuse of discretion.
The Appellant also argues that he is entitled to a new trial for the reason that his trial counsel failed to provide him with effective assistance. Two claims of inadequate representation are based on trial counsel's failure to call witnesses. The first of these witnesses, Appellant argues, would have testified that he had been awakened in the early morning of June 23, 1981 by screams coming from the back bedroom of the Goins residence, that at the time he heard the screams the bedroom window was closed, and that later he noticed that the window was open. According to the Appellant's argument, this testimony would have supported the defense theory that an unknown burglar had entered the house, killed Susan Goins, and exited by way of the window. In view of the defendant's testimony that he had left the front door of the house open when he went to meet his wife at the subway station, and the testimony that there were no signs of theft or forcible entry, the implausibility of the argument that an unknown burglar had entered and exited by way of a second floor window is so great that trial counsel's failure to present a witness to support it cannot be deemed ineffective. Moreover the witness's testimony as to the screams and other noises he heard would have corroborated the testimony of other witnesses as to these facts. Counsel could well have decided not to present a witness whose testimony would have done more harm than good.
The other witnesses who should have been presented according to the Appellant would have testified that several months prior to the killing the Appellant had fractured his right thumb. This evidence, it is argued, would have gone toward establishing that the Appellant was unable to use
his right hand on the day of the crime. In addition to the fact that at least two points of the Appellant's own testimony indicated that he was able to use his right hand (the Appellant testified that he tried to remove the hammer from his wife's head with his right hand, yanking with sufficient force to splatter blood on his clothing), trial counsel testified at the evidentiary hearing that he had tried to grip a hammer and found that he did not need his thumb, even for landing blows such as those suffered by Susan Goins. We must agree with counsel's assessment that the argument which might have been developed from these two witnesses' testimony was "incredible and fantastic" and that "we would be laughed out of court with that." Failure to pursue such a line of defense was clearly not ineffective.
The Appellant also challenges the adequacy of trial counsel's representation for failure to introduce evidence argued to be exculpatory. The evidence in question is an eight page F.B.I. report indicating that the latent fingerprints and palm prints lifted from the scene of the crime were not those of the Appellant. This claim must fail because the Commonwealth presented two fingerprint experts, one a Philadelphia police officer, the other an employee of the F.B.I., who testified that some of the fingerprints at the scene were from Mrs. Goins, while others did not match either the victim or the Appellant. The entry of the report on which this testimony was based would merely have been cumulative. Although the absence of the Appellant's prints might have supported the defense theory that the Appellant was not the murderer, that theory would not have been furthered or strengthened by such duplicative evidence. Accordingly, counsel cannot be deemed ineffective for having failed to introduce it.
Counsel is also argued to have provided ineffective assistance for failing to request a continuance in order to obtain an expert witness to rebut the testimony of the forensic scientist presented by the Commonwealth. Professor Herbert MacDonnell testified for the ...