Appeal from the Judgment of Sentence of August 11, 1983 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8106424A.
Michael J. Healey, Pittsburgh, for appellant.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cirillo, President Judge, and Popovich and Hester, JJ.
[ 355 Pa. Super. Page 163]
This is an appeal from judgment of sentence entered upon appellant's conviction of third degree murder by a jury. Our review of the numerous issues raised by appellant discloses no error, so we affirm.
This case involves a conspiracy leading to the contract killing of Norman McGregor on December 14, 1978. Eight men were involved in the conspiracy, some of whom were intermediaries who hired Robert Bricker to perform the murder. Bricker enlisted the aid of appellant and another man, Charles Rossi. Three conspirators, including Rossi, were granted immunity and testified for the Commonwealth at appellant's trial, which was severed from those of the other participants.
Bricker was given a physical description of the victim which he shared with Rossi and appellant, since none of them had ever seen the victim, together with a list of locations frequented by the victim. One of these locations was the Down Under Lounge in Homestead, Pa. On September
[ 355 Pa. Super. Page 1643]
, 1978, appellant shot and injured James Smith at the Down Under Lounge, mistakenly believing him to be McGregor. Two months later, after many nights of lying in wait, appellant shot and killed McGregor in his front yard when he returned home at 3:00 A.M. Later in the day, Bricker told Rossi that appellant had killed McGregor. Following the killing, the final installment of the $10,000 contract price was paid to the murderers.
Appellant has raised seven issues. He claims the trial court erred in: (1) allowing hearsay statements by co-defendant Bricker to witness Rossi into evidence, for (a) such statements were not made during the course of or in furtherance of the conspiracy, and (b) such statements were inadmissible because they violated appellant's rights under the confrontation clause; (2) denying appellant the opportunity to place co-defendant Bricker on the witness stand in the presence of the jury; (3) denying appellant's request that co-defendant Bricker be given use immunity for the purpose of securing his testimony at trial; (4) allowing evidence of appellant's incarceration on other charges and evidence of his shooting of Smith at the Down Under Lounge; (5) allowing the Commonwealth to question prospective jurors regarding their attitude towards the death penalty and in allowing the Commonwealth to challenge for cause any person irrevocably committed to vote against the death penalty; (6) denying appellant's demurrer to the charge of criminal homicide, for there was insufficient evidence to support a verdict of murder in the third degree; and (7) refusing appellant's motion for disclosure of exculpatory information and refusing to review the homicide investigative file in the possession of the Commonwealth in camera to determine if, in fact, it contained exculpatory material.
The first three issues center on trial court rulings pertaining to co-conspirator Bricker. Appellant first objects to admission of Rossi's testimony that "sometime in the middle of December Mr. Bricker give me a call and he said, ...