Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Dated May 23, 1983, as of Information Nos. 2990, 2992, 2993, June Term, 1981
Bruce A. Franzel, Philadelphia, for appellant.
Robert B. Lawler, Chief/Appeals Div., Gaele M. Barthold, Chief/Prosecution Appeals, Alan Sacks, Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
Appellant, Lawrence Baker, was found guilty by a jury of murder of the first degree for the killing of Robert Limerick. A sentencing hearing was held as required by 42 Pa.C.S. § 9711*fn1 and the jury determined that Appellant be sentenced to death.
This case is now before us on automatic appeal pursuant to 42 Pa.C.S. § 9711(h).*fn2
The facts of the case are as follows: On the evening of December 25, (Christmas Day) 1979, the victim went to 731 No. 44th Street in Philadelphia, apparently to make an illegal purchase of drugs. The victim was an habitual drug user and he was well known to the occupants of this location. The Commonwealth's sole eyewitness, Janet Fleming, testified at trial that the victim visited this location on Christmas night, 1979, and informed the co-defendant in this case, Bobbie L. Sims, that he (the victim) wanted to purchase "speed." After the victim claimed that he only
had $11.00 or $12.00 with him, Bobbie Sims indicated that he thought the victim had more money than that. Sims noticed that the victim was carrying a gun and ordered Janet Fleming to disarm him, and she testified that she did so. After Janet Fleming turned the gun over to Sims, she stated that Appellant came downstairs with a gun and was directed by Sims to "hold his gun" on the victim while Sims conducted a search. Sims removed the victim's wallet, along with checks and other personal papers.
Janet Fleming admitted that she and another woman, identified only as Vanessa, wrapped the victim's wallet, checks and personal papers in his own coat and took them upstairs. While upstairs in the company of Cookie Brown (also known as Juanita Peck) and her teenage son, Walter Brown (neither of whom were called as witnesses at the trial by either side),*fn3 they heard a shot. Walter Brown went downstairs and a second shot was heard. The second shot hit Walter Brown in the arm. Janet Fleming (along with at least one other person) followed Walter Brown downstairs and saw the victim tied up at this point and lying on his stomach, with his hands behind his back and blood about his head and face. Appellant and co-defendant Sims then led the victim into the living room, both threatening that if he didn't "shut up" they would shoot him. When the victim refused to be quiet (he kept screaming), Appellant said, "I'm asking one more time to be quiet and if you don't, I'm going to blow your brains out"; he then shot the
victim once, and the victim then jumped through a window in an effort to escape. A police officer found the victim on a porch outside of the house near a broken window, surrounded by broken glass. The victim died of a single gunshot wound and head injuries.
There is substantial corroborating testimony in the record that links co-defendant, Bobbie Sims, with this killing. Marcelle Hannibal, who lived nearby with one Carl Davis, testified for the Commonwealth that Bobbie Sims came to her home on the Christmas night in question and admitted "that he [Sims] had shot somebody . . . ." "He said that he had shot some guy and he had jumped through the window." She testified that Sims returned to the scene of the crime with Mr. Davis to demonstrate that his boast or brag was not an idle one.
Marie Hilyard testified for the Commonwealth that within a week of the killing, Bobbie Sims admitted to her that the victim had come to the house in question looking for drugs, and that "they" (Sims and another person) tied him up, took his checks, identification and a gun, and then shot him. During direct examination by the Assistant District Attorney, in response to the question, "Who stuck him up and who tied him up?" (which was asked in connection with what Sims had admitted to the witness), Ms. Hilyard responded: "Bobbie and Lonnie" [Appellant Baker's nickname]. This hearsay statement was objected to by Appellant's trial counsel, and the court sustained the objection and gave a cautionary instruction to the jury to disregard the reference to Appellant. The fact that the jury heard this response prompted Appellant's trial counsel to move for a mistrial, which was denied. The point has been preserved on this appeal and is discussed below.
On January 7, 1980, co-defendant, Bobbie Sims, attempted to pay for a used car with a $1,000.00 check payable to the victim. On the evening of January 7, 1980, someone, whom Bobbie Sims identified as his sister, gave a $400.00 check, payable to the victim, to an oil company delivery man as payment for a $130.00 bill. The delivery man could not
change the check but took it with him, and the next day Sims himself went to the offices of the fuel oil company to get change for the check where he was apprehended by the police and taken in for questioning. When apprehended, Sims was in possession of a wallet that contained thirty items of identification belonging to the victim. He was, nevertheless, not charged with murder at that time because of insufficient evidence. At trial, Sims admitted to the incidents of January 7 and 8, 1980, but claimed that he received the items in question from Janet Fleming and denied any involvement in the killing.*fn4
The only competent evidence introduced at trial connecting Appellant with the killing was the testimony of Janet Fleming.
Warrants of arrest were issued against Appellant and Bobbie Sims on March 28, 1981. Appellant was arrested on April 7, 1981, and Sims on April 16, 1981. On September 1, 1981, the Honorable Paul Ribner denied a number of pre-trial motions, including a motion to sever the trial of the two defendants, and a motion by Appellant's court-appointed counsel, David Zwanetz, to withdraw from the case. Both of these motions were renewed more than once at later stages of the proceedings and were rejected by the Honorable Albert F. Sabo, who presided at trial.
Judge Sabo held a suppression hearing on September 14 and 15, 1981, and jury selection commenced on September 16, 1981. During the course of the voir dire, three venirepersons were excused for cause because they expressed their inability to impose the death penalty. Appellant argues that their dismissal for cause violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), rehearing denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968). This argument is discussed below.
During the trial court's opening statement to the jury panel, and during the initial selection of jury members (on
September 16, 23 and 24, 1981), during which time five jurors who ultimately sat during the trial were picked, Appellant was present in the courtroom and was dressed in blue-colored clothing that appeared to be ordinary dungarees. Appellant subsequently wore civilian clothes. Motions to disqualify the five jurors already selected were denied. Appellant complained that he had been wearing prison garb in the presence of these five jurors, but Judge Sabo could not find any descriptive feature of these dungarees which could identify them to the jurors as prison garb. The trial court agreed to allow the jurors to be interrogated concerning their observations of Appellant's clothing at the completion of the jury selection; however, the matter was not raised at that time (possibly because to do so would have unduly emphasized the issue). The point has, however, been preserved for review by this Court.
The essential testimony offered at trial has already been summarized. The Commonwealth's case against Appellant rested solely on the testimony of Janet Fleming, an alleged accessory to the crime, who was given immunity to testify by the Commonwealth. The jury was specifically instructed by the Court that if Janet Fleming was found by them to be an accomplice, her testimony should be looked upon with disfavor because it came from a corrupt and polluted source, and that her testimony had to be examined closely, and only accepted with caution and care. Janet Fleming had a past criminal record. She admitted to using drugs illegally three times a day since the age of 17, to having used drugs ("monster") on the night of the killing, and to having had intimate relations with co-defendant Sims on a number of occasions during the five years prior to the killing. A review of the transcript of her testimony shows it to be somewhat confusing in spots, especially on cross-examination. Portions of her prior consistent statement given to the police in June, 1981, were read into the record by the Assistant District Attorney on re-direct examination.
The jury was obviously aware of the critical nature of Janet Fleming's testimony because, during their deliberations
on the guilt or innocence of the defendants, they asked that a written copy of her testimony be given to them. The trial court had most of her testimony, including cross-examination and re-direct, read to the jury (with a small portion played by recording tape because it had not yet been transcribed).
Both defendants testified on their own behalf at trial and each offered an alibi defense. Appellant admitted being in the house in question on the evening of the killing in order to buy "monster" or "speed," but claimed that he left well before seeing the victim come there. He admitted only to using drugs there on that evening and then returning home. Co-defendant Sims denied being there at all on the night in question and his alibi was supported by testimony presented by his sister.
Late in the afternoon of Saturday, October 10, 1981, the jury returned verdicts against both Appellant and co-defendant Sims, finding each one guilty of murder of the first degree, robbery and criminal conspiracy. The sentencing phase of the trial commenced immediately thereafter.
The Commonwealth rested after presenting evidence of Appellant's two prior robbery convictions in 1973 and 1974. Aside from presenting evidence of the co-defendant's birthdate (there was some question as to whether it was March 21, 1954 or 1951),*fn5 counsel for neither defendant presented any evidence or testimony of a mitigating nature whatsoever to the sentencing jury. Failure of Appellant's trial counsel to present evidence of mitigating circumstances is claimed as evidence of ineffective assistance of counsel in Appellant's brief to us.
In his closing comments to the sentencing jury, Appellant's trial counsel listed various mitigating factors that the jury might consider, including the fact that the killer might have been under extreme or emotional disturbance; and he pointed out that Appellant had testified that he had been at the house in question prior to the killing and had taken
drugs, that he had acted at another person's directions (i.e., Sims'), and that he was probably in a state of hysteria. He pointed out that the jury could "find almost any basis" on which to mitigate the sentence, and he argued that television, the media, and society were somehow to blame where some people are deprived and yet told that if they don't have various consumer goods, they are "not as good as the next fellow." Appellant's trial counsel also pointed out to the jury, over objection, that if, in three years, a mistake were made, and the Appellant executed, the mistake could not be rectified. Sims' trial counsel argued very briefly, but in reference to the prior argument, in the same vein to the effect that, "Your decision is final. There is no appeal and I would ask you to give him a chance and think about everything that we have said."*fn6
The Assistant District Attorney began his argument to the jury by attempting to minimize their expectations that a verdict of death would ever be actually carried out, and hence minimized their sense of responsibility for a verdict of death -- suggesting that ultimate responsibility rested with this Court. He stated: "You get an appeal after appeal after appeal after appeal, if you think the Supreme Court is going to let anybody get executed until they're absolutely sure that that man has a fair trial, make no mistake about that."*fn7
Appellant contends that the Assistant District Attorney's comments constitute reversible error with respect to the imposition of the death penalty under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The point is fully discussed below.
The jury retired at 5:44 p.m., on October 10, 1981, to consider the appropriate sentences for the defendants after the court instructed them on aggravating and mitigating circumstances, and after they had received three-page verdict
slips for each defendant which listed the statutory aggravating and mitigating circumstances. At 9:40 p.m., that evening, the jury foreman sent a note to Judge Sabo that they were hopelessly deadlocked. Judge Sabo did not discharge the jury, nor did he directly and immediately inform counsel. The jury apparently continued its deliberations on Sunday morning, October 11, 1981, prior to the time that counsel were fully assembled in the court's chambers at 1:30 p.m. At this time, Judge Sabo denied motions to dismiss the jury and fix the sentences at life imprisonment, as well as motions to give the jury additional instructions. He justified his refusal to dismiss on the grounds that the jury had had only one hour to deliberate the previous night (allowing two hours for dinner). Meanwhile, the jury, continuing to deliberate, had sent Judge Sabo a question asking, "Must you consider aggravating and mitigating circumstances to reach the decision of life imprisonment? May we have a yes or no answer?" The Assistant District Attorney, after initial reluctance, apparently concluded that the jury was leaning against his position because he came around to agree with Judge Sabo's view that the question should be answered "yes." Judge Sabo gave the jury the answer "yes."
At 4:38 p.m., on October 11, 1981, the jury returned a verdict of death against Appellant, and a verdict of life imprisonment against Bobbie Sims. The jury found two aggravating circumstances in the case of Appellant; namely, that the killing was committed while in the perpetration of a felony, and that there was a significant history of felony convictions involving the use or threat of violence to the person. No mitigating circumstances were found.
Imposition of formal sentencing was deferred pending post-verdict motions. Pre-sentence and psychiatric examinations were ordered.
On October 19, 1981, timely motions for a new trial and in arrest of judgment were filed by trial counsel for both defendants. Following the submission of briefs and oral argument, Judge Sabo denied the post-verdict motions on
December 23, 1982. On January 18, 1983, after Appellant advised the trial court of his desire to raise various issues alleging ineffective assistance of counsel, present counsel was appointed to represent Appellant. Following a review of the trial record, an amended motion for new trial and/or arrest of judgment was filed on May 3, 1983. On May 23, 1983, counsel for Appellant and the Commonwealth appeared before Judge Sabo ready to proceed with a hearing on the amended post-trial motions. The trial court refused to hold a hearing or consider the amended post-verdict motions unless they were titled and filed pursuant to the Post-Conviction Hearing Act. Over the objection of counsel, the court moved directly to sentencing of the Appellant without holding a hearing or considering the issues raised in the amended motion for new trial and/or arrest of judgment. Appellant was sentenced to death for first degree murder; to ten to twenty years' incarceration for robbery to run consecutively to the sentence of death; and to five to ten years' incarceration for criminal conspiracy to run consecutively to both of the previous sentences.
A timely Notice of Appeal was filed to this Court on June 10, 1983, from the sentence imposed on May 23, 1983. On September 26, 1983, the Commonwealth filed with this Court a Petition to Remand for an Evidentiary Hearing on the amended post-verdict motions which had been filed by defense counsel. This Petition was joined by counsel for Appellant and, on October 17, 1983, this Court entered an Order remanding the record to the trial court "for an evidentiary hearing on post-verdict motions." An evidentiary hearing was held before Judge Sabo on March 13 and March 15, 1984, on the amended post-verdict motions, and oral argument was presented on March 21, 1984.
On April 11, 1984, Judge Sabo entered an order denying Appellant's requested relief and a Supplemental Opinion and Order was issued on February 15, 1985, which rejected, inter alia, five of the six arguments Appellant now presents to this Court. The question ...