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decided: July 15, 1986.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Division, dated February 3, 1983, at Nos. 1416-1429, November Term, 1981.


Thomas W. Moore, Philadelphia, for appellant.

Robert B. Lawler, Chief/Appeals Div., William Boland, Arnold H. Gordon, Asst. Dist. Attys., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., joins this Opinion Announcing the Judgment of the Court and files a separate concurring opinion in which Papadakos, J., joins. Papadakos, J., joins this Opinion Announcing the Judgment of the Court and files a separate concurring opinion. Hutchinson, J., files a concurring opinion. Flaherty, J., files a concurring and dissenting Opinion in which Nix, C.j., and Zappala, J., join.

Author: Mcdermott

[ 511 Pa. Page 235]


The appellant, Raymond Whitney, was convicted by a jury of two counts of burglary,*fn1 two counts of robbery,*fn2 two counts of possession of an instrument of crime -- generally,*fn3 terroristic threats,*fn4 indecent assault,*fn5 attempted rape,*fn6 and murder in the first degree.*fn7 These crimes were committed during an episode in which appellant invaded two adjoining homes. He robbed the occupant of the first home at knife point. He attempted to rape the female occupant of the second; he murdered the male occupant by the infliction of twenty-eight stab wounds. Following the jury's rendition of the verdicts of guilt a sentencing hearing was conducted in accordance with Section 9711 of the Sentencing Code,*fn8 42 Pa.C.S. § 9711, resulting in a determination by the jury that the appellant should be sentenced to death. Post-verdict motions were denied and appellant was formally sentenced to death in connection with the first degree murder conviction

[ 511 Pa. Page 236]

    in accordance with the jury's findings.*fn9 Direct appeal from the judgment of sentence was taken to this Court. See 42 Pa.C.S. § 9711(h)(1) and § 722(4).

It is the practice of this Court in death penalty cases to review the sufficiency of the evidence to sustain the conviction of murder in the first degree whether or not the appellant contests the issue. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27, n. 3, 454 A.2d 937, 942, n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). The test to be applied in such review is whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

The evidence adduced at trial disclosed that shortly before 4:00 A.M. on October 10, 1981, a man gained access to the second floor apartment of Juliana Minor through a window. The man, identified later that night by Ms. Minor as appellant, came into her bedroom where she lay in bed. Armed with a knife, he threatened to kill her if she wasn't quiet. He asked if she recognized him; she responded that she didn't. He then announced that he was in the "wrong" apartment. Nonetheless, he stole items from her jewelry box, cut her telephone wire, and soon thereafter left through a window onto a ledge.

Moments later appellant entered the apartment of Jehad Taha and Mahin Murtaza, husband and wife, just two doors away from Ms. Minor's apartment on the same floor. Realizing that someone was in the apartment, Mr. Taha got out of bed and went to the living room to investigate. Mrs.

[ 511 Pa. Page 237]

Murtaza heard someone hit her husband and she attempted to contact the police on the bedroom phone. Before she was able to get through she saw her husband at the bedroom door, blood running from his chest and face, with appellant standing behind him holding a knife to his neck. As Mrs. Murtaza hung up the phone appellant threw Mr. Taha to the bed and approached Mrs. Murtaza, holding his knife to her chest. Appellant demanded money and jewelry. She gave him jewelry from a candle case; appellant forcibly removed what jewelry the victims were wearing. He then announced his desire to rape Mrs. Murtaza and tore off her brassiere. Before carrying these intentions further he repeated his demand for money, and was told by Mrs. Murtaza that their money was in the living room in her purse. Appellant ordered Mr. Taha up from the bed and pushed him toward the living room. Still bleeding Mr. Taha headed for the bathroom, at which point appellant attacked and stabbed him again. Appellant forced Mr. Taha into the living room where Mrs. Murtaza emptied the small amount of change in her purse onto the floor. Appellant expressed his disappointment. In a relaxed and "very cool" manner he opened the refrigerator, took out a glass container and drank some water. Then he advanced on Mrs. Murtaza, hugged her, touched her breast and reiterated his intent to have intercourse with her. He struck her and threw her to the floor next to her husband. Mr. Taha protested, but was struck in the face and ordered to put his neck down. Appellant then stabbed him again and repeatedly stated that he was going to kill Mr. Taha and then would rape her. At this point appellant opened his pants and drew out his penis. Mr. Taha arose and began to scuffle with appellant; Mrs. Murtaza ran out of the apartment and onto the street where she saw two police officers, Sergeant Wagner and Officer Miller. She directed them to the apartment where the police officers observed appellant crouched over Mr. Taha pulling a knife out of Taha's chest. Appellant was immediately arrested. Mr. Taha died subsequently as a result of twenty-eight stab wounds to his body.

[ 511 Pa. Page 238]

We are satisfied that the evidence is sufficient to support the jury's verdict of guilt.

Although he did not contest the sufficiency of the evidence appellant does contend that the weight of the evidence clearly established his diminished capacity due to intoxication, and therefore negated his intent to commit first degree murder.

Voluntary intoxication is not a defense to a criminal charge. However, evidence of alcohol or drug intoxication may be introduced in a murder case to negate the element of specific intent and thereby reduce the crime to a lesser degree of murder. 18 Pa.C.S. § 308;*fn10 Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975).

In support of his position appellant cites the testimony of defense witnesses that he had been drinking and had become intoxicated at a party earlier that evening. In addition, Ms. Minor had stated that appellant's walk was "woozy" and she thought his speech was "funny". The police officer who transported appellant to police headquarters testified that he smelled alcohol on his breath.

On the other hand, there was substantial evidence that appellant had the capacity to possess the specific intent to murder Jehad Taha. First of all, he had sufficient command of his body to allow him to travel along the second floor ledge of the apartment building, to think about stealing valuables from Ms. Minor and cutting the phone wire despite realizing he was in the "wrong" apartment. He demonstrated the capacity of mind to direct Mrs. Murtaza as to how to respond when an operator called during the incident. Furthermore, Sergeant Wagner and Officer Miller

[ 511 Pa. Page 239]

    both testified that while at the scene appellant did not stumble or stagger; and neither detected any odor of alcohol on his breath, nor believed that he was under the influence of alcohol.

Whether appellant lacked the capacity to possess the requisite specific intent was an issue for the jury. Commonwealth v. Colbert, 476 Pa. 531, 383 A.2d 490 (1978). A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. See: Commonwealth v. Datesman, 343 Pa. Super. 176, 494 A.2d 413 (1985); Commonwealth v. Sample, 321 Pa. Super. 457, 468 A.2d 799 (1983). The trial court's decision on such a motion for new trial is committed to its sound discretion and an appellate court will not disturb its decision absent an abuse of that discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). The jury's decision that appellant possessed the specific intent to commit murder, inherent in its verdict, is supported by substantial evidence. See Commonwealth v. Fairell, 476 Pa. 128, 381 A.2d 1258 (1977). The trial court did not abuse its discretion in denying a new trial on these grounds.

Appellant also asserts that he lacked the requisite mental capacity to make an intelligent, informed, knowing and voluntary waiver of his Miranda rights.*fn11 Accordingly, he contends that the court erred in refusing to grant his motion to suppress an incriminating statement given to the police hours after the crime.

In Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), our standard of review of defendant's appeal of an adverse suppression ruling was described as follows:

When we review the ruling of a suppression court we must determine whether the factual findings are supported

[ 511 Pa. Page 240]

    by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Id., 507 Pa. at 532, 491 A.2d at 112.

At the suppression hearing appellant presented testimony from two friends who stated he was drunk at a party earlier that evening. On cross-examination the officer who transported appellant to police headquarters testified that he smelled alcohol on appellant's breath. In addition, the defense called a clinical psychologist, Dr. Gerald Cooke, to testify as to the appellant's mental state. Dr. Cooke testified that when he went over the Miranda warnings with appellant, he did have a basic concrete understanding of the warnings and rights, but because of his borderline intellectual range and lack of social skills, he was incapable of implementing them, particularly if he had been drinking and was under great stress.

The Commonwealth rebutted this evidence with testimony from Sergeant Wagner and Officer Miller, the officer who transported appellant, and the two detectives to whom appellant issued his incriminating statement. All testified that appellant did not exhibit any signs of intoxication. The detectives testified that appellant demonstrated a clear understanding of his Miranda rights, and responded to questioning in a manner that reflected a clear comprehension of the questions posed. They further testified that appellant told them he had been drinking but stated that he was not drunk.

Resolution of any conflict between the testimony of the parties was for the factfinder to resolve, and we are bound by that determination if there is adequate support on the record. Clearly the suppression court's decision was ultimately based on a finding that the Commonwealth witnesses

[ 511 Pa. Page 241]

    were more credible. Such a credibility determination is within the judge's province and we cannot reverse where, as here, his findings are supported by the record. Cortez, supra; Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977).

As to appellant's contention that he was not intellectually capable of waiving his rights, we have consistently refused to adhere to a per se rule of incapacity to waive constitutional rights based on mental deficiencies. Commonwealth v. Hicks, 466 Pa. 499, 353 A.2d 803 (1976). The fact that a defendant has a low I.Q. does not in and of itself render his confession involuntary. Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980); Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). The line of distinction between a voluntary and an involuntary confession is that at which governing self-direction is lost and compulsion propels the confession. Commonwealth v. Ritter, 462 Pa. 202, 340 A.2d 433 (1975); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974). However, an internal compulsion to confess resulting from mental disease or deficiency does not make the resulting confession inadmissible. Commonwealth v. Bracey, 501 Pa. 356, 461 A.2d 775 (1983).

We look at all of the circumstances to determine if a knowing and intelligent waiver was effected. Hicks, supra. Appellant demonstrated that he was capable of self-direction at the time he made the statement. During the statement appellant refused to divulge the name of a person he had originally planned to meet in the early morning hours when the incident occurred, stating that he was not going to involve him in something he had nothing to do with. Moreover, appellant refused to sign the statement after it was read to him. There was no indication of coercion, promises or threats. Under these circumstances, the suppression court's finding that appellant made a knowing and intelligent waiver of his Miranda rights is supported by the record and thus, the court did not err in

[ 511 Pa. Page 242]

    denying appellant's motion to suppress the incriminating statement.

Appellant also contends that during argument to the jury at the sentencing hearing the prosecutor made several comments designed to inflame the passions of the jury, causing the jury to return a sentence of death based on arbitrary factors such as anger, fear, hatred and sympathy.

The first comment made to which appellant objects is as follows:

How many people do you know who cannot read or write, yet are honest as the day is long and law-abiding?

In fact, the Supreme Court of the United States ruled a number of years ago that the fact that a person cannot read or write should not bar that person from voting, because the court reasoned there are lots of people who can't read and write who are, nevertheless, intelligent, law-abiding, well-informed citizens. So how much of a part does that play in whether a person should be excused from criminal conduct?

Appellant argues that this comment was irrelevant and intruded upon the jury's objectivity. We do not agree. The comment was made in response to the testimony of Dr. Cooke, appellant's expert in psychology, who testified at the sentencing hearing that appellant's school records indicate that he always achieved no higher than an early first grade reading level, had a low verbal I.Q. and was placed in remedial classes in public school. This testimony was given in the context of Dr. Cooke's description of appellant's personality, his problems in coping with the world, his antisocial behavior and disregard for authority.*fn12 Thus, the prosecutor's comment was a legitimate, unimpassioned response to the evidence appellant presented in support of a mitigating circumstance.

[ 511 Pa. Page 243]

Next, appellant contends that the prosecutor's comment that the jury may seek vengeance on behalf of society to defend itself against heinous crimes was improper and drew upon the jurors' emotion. The prosecutor argued:

Let me ask you something, ladies and gentlemen: Counsel says to you that you are not here for vengeance. Well, I say to you you are.

He stands before you now, that cloak of innocence removed. He stands before you convicted as a deliberate, willful, premeditated killer, who acted with cruelty, hardness of heart and wickedness of disposition. You are here representing society. How much shall you turn the other cheek?

When you're alone in your bedroom some night, if someone comes into your bedroom with a gun or a knife, what shall you do?

Shall you ask him whether he had a deprived childhood?

Shall you ask him how far he went in school?

Shall you ask him if he has problems making friends?

Do you turn the other cheek?

No. If you have a gun, you're going to pull that gun out and you're going to shoot him, because your primary objective there is to save yourself and your family from harm and your primary objective as you sit right there is ...

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