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COMMONWEALTH PENNSYLVANIA v. ROGER PETER BUEHL (04/30/86)

filed: April 30, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROGER PETER BUEHL, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 3000-82, dated December 14, 1983.

COUNSEL

Richard M. Lovenwirth, Pottstown, for appellant.

Joseph A. Smyth, Jr., Dist. Atty., Larry J. Folmar, Asst. Dist. Atty., Ronald T. Williamson, Chief/Appeals Div., Asst. Dist. Atty., William R. Carpenter, Norristown, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a concurring opinion.

Author: Papadakos

[ 510 Pa. Page 368]

Opinion OF THE COURT

I. INTRODUCTION

This direct appeal arises from the conviction and death sentence of Roger Peter Buehl (Appellant) on three counts of murder of the first degree pursuant to 42 Pa.C.S. § 9711(h).*fn1 Appellant was arrested on September 8, 1982,

[ 510 Pa. Page 369]

    and charged with Murder of the First Degree,*fn2 Burglary,*fn3 Robbery,*fn4 Possession of an Instrument of Crime,*fn5 Violation of the Uniform Firearms Act,*fn6 and various other related offenses. Appellant was tried before a jury with the Honorable Samuel W. Salus, II, of the Court of Common Pleas of Montgomery County, presiding. On January 18, 1983, Appellant was found guilty of murder of the first degree for the killings of Courtland Gross and Alexandra Gross, husband and wife, and their housekeeper, Catherine VanderVeur. Appellant was also found guilty of several related offenses. Immediately thereafter, a separate sentencing proceeding was commenced pursuant to 42 Pa.C.S. § 9711(a)(1),*fn7 following which the jury determined that the Appellant be sentenced to death on each of the three murder of the first degree convictions. Formal sentencing was deferred pending the filing and disposition of post-trial motions. On June 17, 1983, the post-trial motions were

[ 510 Pa. Page 370]

    argued before a court en banc which denied same on October 13, 1983. Appellant was sentenced to three consecutive death sentences on the convictions of murder of the first degree, and concurrent sentences of ten to twenty years each on the burglary and robbery convictions on December 14, 1983. Sentence on each of the remaining convictions either merged or was suspended. This automatic appeal followed.

Appellant challenges the verdicts below on numerous grounds. These challenges pertain to alleged errors at both the guilt and sentencing phases of the trial. For the reasons set forth herein, we affirm Appellant's convictions of murder of the first degree, and uphold the sentences of death.

The evidence produced at trial discloses the following. On July 16, 1982, the bodies of Courtland Gross, aged seventy-nine years, his wife, Alexandra Gross, aged sixty-eight years, and their housekeeper, Catherine VanderVeur, aged sixty-nine years, were found shot to death at the Gross estate in Lower Merion Township, Villanova, Pennsylvania. It was determined that the three had died sometime during the mid-afternoon or evening of July 15, 1982. Courtland Gross's body was found in an area above the cellar steps. He had been shot three times: once above the right heel, once in the abdomen, and once in the left cheek. Mrs. Gross's body was found in the kitchen. She had been shot twice: once in the left elbow and once in the right eye. Mrs. VanderVeur's body was found in a back bedroom tied to a chair by scarves. She had been shot once in the back of the head. Several of the rooms were in disarray. Drawers had been pulled out of cabinets in the bedrooms and bathrooms and their contents strewn about. A dropcloth on a safe in the basement had been pulled aside revealing its handles and the dial. Six bullets and six .380 cartridge casings were recovered from the bodies and the rooms where the bodies were found. There were no eyewitnesses to the killings. However, the prosecution was able to piece

[ 510 Pa. Page 371]

    together a complicated trail of circumstantial evidence which was the basis of Appellant's convictions.

On or about June 1, 1982, Francis Kelly purchased a .380 caliber Walther PPK automatic pistol, which he test fired at a junkyard on or about June 7, 1982. On August 12, 1982, Kelly and the police returned to the junkyard and recovered two .380 shell casings which ballistics experts determined had come from the same gun that had fired the casings found at the Gross estate.

On July 7, 1982, Joseph Dwyer stole a red Buick Skylark from the vicinity of Ninth and Pine Streets, Philadelphia. He slightly damaged the left-front tire and lost the hubcap. On July 8, 1982, Dwyer sold the Skylark to Kelly. On July 10, 1982, Kelly lent the Skylark to Appellant, and the Walther PPK loaded with a full clip of ammunition. Dwyer testified that he saw both items in Appellant's possession on July 10, 1982. He further stated that Appellant asked him to help commit robberies, specifically a "job on Pine Street" and a "place up Montgomery County" where Appellant would force people to "open the safe." Dwyer declined.

On July 13, 1982, Appellant met with Joseph La Motte at La Motte's office in Philadelphia. Appellant told La Motte he was driving a red Skylark which La Motte observed from his office window. Also on July 13, 1982, Appellant purchased fifty cartridges of 9mm Luger ammunition from Michael Bradford, assistant manager of Pearson's Sporting Goods Store. This ammunition did not fit Appellant's gun and Bradford recommended 9mm short (which is .380 caliber) ammunition. Appellant exchanged the ammunition and was issued a credit slip in the amount of $4.45. Appellant signed the required form but his signature was illegible. Bradford asked for Appellant's driver's license and printed Appellant's name under the signature on the federal register.

On July 13, 1982, around 6:00 p.m., Appellant entered the Good Scents Shop on Pine Street in Philadelphia. Antoinette Fucci Quinn and Nathan Cohn attended the store. After requesting several items, Appellant pulled a gun and

[ 510 Pa. Page 372]

    demanded that Ms. Quinn put the items, plus the contents of the cash register, into a paper shopping bag. Before Appellant left the store, he shot Nathan Cohn above the left ankle, saying, "I'm not playing around." He told Ms. Quinn, "If anybody comes out here, I'll blow your eyes out." Appellant was observed by John Lyons leaving the shop with a paper shopping bag and speeding away in a red car. It was determined by ballistics experts that the two cartridge cases recovered from the store were ejected from the same gun that had ejected cartridges at the junkyard and the Gross estate.

On July 15, 1982, around 2:00 p.m., David Mazzocco saw a red car driving slowly down his street, Berks Road in Worcester Township. He noticed that the car was missing its left-front hubcap. On that same afternoon around the same time, Richard Kirkpatrick arrived at his home on Berks Road. He saw a red Skylark in his driveway. Upon entering his home, he was confronted by a man with a pistol, who ordered Kirkpatrick to turn around and then blindfolded him. The gunman said, "I've shot two other people, I'll shoot you also. I'll start with your leg and work up." The gunman did not carry out this threat but he stole some of Mrs. Kirkpatrick's jewelry and left. At the Kirkpatrick home, three cartridge casings were found, which were determined to have been ejected from the same pistol that ejected casings at the junkyard, the Good Scents Shop, and the Gross estate.

On July 15, 1982, Mr. and Mrs. Gross attended a funeral in Bryn Mawr, Pennsylvania, around 11:00 a.m. At approximately 2:30 p.m., an elderly woman wearing a flowered dress and straw hat purchased a box of Domino brown sugar at the Liberty Bell Meat Market in Bryn Mawr. This market is about 1.5 miles from the Gross estate. When her body was discovered on July 16, 1982, Mrs. Gross was wearing a flowered dress and a straw hat was near her head. Also, the brown sugar was found still in its paper bag on the kitchen counter. There was testimony at trial that the Grosses ran their house in a very neat and methodical

[ 510 Pa. Page 373]

    way. Testimony also established that Mrs. Gross carried a gold money clip embossed with the image of St. Christopher. This clip was missing. Joseph La Motte testified that on July 15, 1982, between 3:30 and 4:00 p.m., Appellant came to La Motte's office in a very nervous and excited state. He asked to borrow La Motte's car, a gray 1982 Datsun. When La Motte refused, Appellant said he had "just pulled a job" and he "had to go back and wipe off the fingerprints." When asked why he could not use his own car, Appellant stated that the red Skylark was a stolen car and he did not want to get stopped by the police. When La Motte still refused, Appellant said, "Look, this is my life we're talking about. I just wasted three people and I want your car." La Motte testified that Appellant had a gun in the waistband of his jeans and told La Motte that he would be driving to Conshohocken, which exit from the Schuylkill Expressway is about 1.5 miles from the Gross estate. The Commonwealth produced testimony that it is possible to drive from La Motte's office, at Fourth and Chestnut Streets, to La Motte's house, at Eighth and Catherine Streets, and then to the Gross estate in thirty-six minutes observing the posted speed limits.

Donna Bush testified that on July 15, 1982, at approximately 5:00 p.m., she observed a car that looked like La Motte's, traveling quickly away from the Gross estate.

Appellant arrived in the Datsun at the corner of Fifth and Chestnut on July 15, 1982, between 5:00 and 5:30 p.m., where La Motte and Joseph Lynch were waiting. Appellant had a pistol in the waistband of his pants. At approximately 5:35 p.m., Mary Treat entered the Datsun at the corner of Fourth and Chestnut, at which time she was introduced to Appellant. At trial, Ms. Treat testified that he was nervous and crusty looking. Later that evening, at approximately 7:00 p.m., Appellant sold jewelry to Avrum Kay at Kay's shop at 725 Sansom Street in Philadelphia. Some of the jewelry was later identified as that which was taken in the Kirkpatrick robbery earlier that day.

[ 510 Pa. Page 374]

On July 17, 1982, Appellant called La Motte from Atlantic City, New Jersey, and asked if there had been "any big burglaries or anything on the news." La Motte asked Appellant if he knew anything about the triple homicide at the Gross estate, but Appellant would not answer.

Duon Miller testified that he met Appellant on July 17, 1982, while vacationing in Atlantic City, and spent part of the next six days with him. Appellant, having run out of gambling money, advised Miller that someone on Sansom Street in Philadelphia owed him money. Miller drove Appellant to Philadelphia. Appellant told Miller he had killed people with a PPK and had thrown it into a lake or river. He also asked Miller if he had ever heard of the Gross family. Appellant offered Miller a St. Christopher money clip, which Miller later found in his car and put into his briefcase. Upon their return to Atlantic City, Appellant and Miller had several arguments over money and Appellant threatened to "get his PPK and come back and blow Miller away." Miller traveled to Zurich on August 5, 1982, and while he was in Zurich, Eros Peter Simone observed the St. Christopher money clip in his briefcase.

On July 19, 1982, Peter Anthony Ross met Appellant at the Tropicana Hotel in Atlantic City. Ross saw Appellant at approximately 11:00 p.m., intently watching television, switching from newscast to newscast. Ross also witnessed three arguments between Miller and Appellant, during which Appellant threatened to kill Miller with a PPK. Appellant told Ross that he had Miller's vehicle registration and could track Miller down and kill him. Appellant also admitted to Ross that he had murdered before.

On July 30, 1982, Appellant was arrested for burglary in Delaware County. At the time of his arrest, Appellant had in his possession a credit slip for $4.45 from Pearson's Sporting Goods Store, a paper with Miller's name and address and telephone number on it, and Miller's vehicle registration card.

[ 510 Pa. Page 375]

On August 17, 1982, while Appellant was being transferred to Broadmeadows prison, he asked one of the detectives if the police could match shell casings.

Appellant admitted to the commission of the armed robbery of the Good Scents Shop, and the shooting of Nathan Cohn, but denied any involvement in the Kirkpatrick robbery or the killings at the Gross estate.

The jury found Appellant guilty on each of three counts of murder of the first degree, and the same jury determined that Appellant be sentenced to death on each count. While Appellant does not specifically challenge the sufficiency of the evidence to sustain this verdict, we have, nevertheless, reviewed the record for sufficiency and find compelling evidence to support the jury's verdict beyond a reasonable doubt. Furthermore, the evidence proves beyond a reasonable doubt a willful, premeditated, deliberate, and specific intent to kill on the part of Appellant. Admittedly, there were no eyewitnesses to the murders. However, the Commonwealth need not prove its case directly. Circumstantial evidence can be as reliable and persuasive as eyewitness testimony and may be of sufficient quantity and quality to establish guilt of a crime beyond a reasonable doubt. Commonwealth v. ...


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