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COMMONWEALTH PENNSYLVANIA v. OTIS PETERKIN (07/25/86)

decided: July 25, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
OTIS PETERKIN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Division, dated November 22, 1982, at Nos. 784-793, February Term, 1982.

COUNSEL

Harold Diamond, Philadelphia, for appellant.

Robert B. Lawler, Chief/Appeals Div., Elizabeth J. Chambers, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion in which Zappala, J., joins.

Author: Mcdermott

[ 511 Pa. Page 305]

OPINION

The appellant, Otis Peterkin, was convicted by a jury of robbery,*fn1 possession of an instrument of crime-generally,*fn2 and two counts of murder in the first degree*fn3 for the

[ 511 Pa. Page 306]

    shooting deaths of two persons. These crimes were committed in the course of a robbery of a service station in Philadelphia. Following the jury's rendition of the verdicts of guilt, a sentencing hearing was conducted in accordance with Section 9711 of the Sentencing Code,*fn4 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 the appellant was formally sentenced to death in accordance with the jury's findings.*fn5 Direct appeal from the judgment of sentence was taken to this Court. See 42 Pa.C.S. § 9711(h)(1) and § 722(4). In this appeal appellant raises a myriad of issues which we shall address below.

I. SUFFICIENCY OF THE EVIDENCE

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).

Appellant contends that in undertaking such review, we should not consider the testimony of various witnesses which, allegedly, was improperly admitted into evidence. This contention, however, lacks merit. In determining the sufficiency of the evidence we look to the entire record and do not exclude for that purpose alleged errors in the admission of that evidence.*fn6 This is true even as to matters of

[ 511 Pa. Page 307]

    constitutional dimension. Commonwealth v. Wallace, 500 Pa. 270, 275, n. 2, 455 A.2d 1187, 1190, n. 2 (1983). This, for the reason that if sufficiency fails upon the whole record the matter is at an end and cannot be retried.

The test to be applied in reviewing the sufficiency of the evidence is whether, viewing all of the evidence admitted at trial in the light most favorable to the verdict winner (here the Commonwealth), 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).

This tragedy began in November, 1981, when two bulletriddled bodies were found dead at a Sunoco service station in Philadelphia. The Commonwealth offered the following evidence inculpating the appellant. Appellant was a former employee of the gas station and last worked there in October of 1981. Known for that reason to all the employees, he appeared at the station on November 29, 1981. While appellant was there, an employee, Ronald Presbery, made a phone call to an off-duty employee, Maurice Rogers. During the course of the conversation Presbery told Rogers that the station manager, John Smith, and the appellant, with whom Rogers was familiar, were in the back office testing a gun. Presbery said he had heard a shot. He told Rogers that appellant was locking the door to the station, and asked Rogers whether appellant was supposed to have a key to the station.

About noon, two men, Stanley Trader, a former employee at the station, and his brother, Clarence Sears, arrived at the station. Presbery came to their car and told them that appellant, who was in the cashier's booth, had a gun and the combination to the safe. They directed their attention to the cashier's booth and saw appellant who they knew from before as an employee. Trader and Sears left the station,

[ 511 Pa. Page 308]

    and went to a movie. However, sometime past 4:15 p.m., they returned to the station, and found appellant in the cashier's booth. Appellant told them that Presbery had left with some people in a car and that if they were to see him tell him "Greg" said hurry back. Mr. Trader was not to see Presbery until later that day when the police found his dead body in the cashier's booth, riddled with fifteen bullet wounds. It was determined that Presbery died a few hours before his body was found.

The next morning, police found the bullet-riddled body of John Smith, on the ground next to the open and empty safe. Smith had been dead for less than a day.

Four days before the murders appellant had spent time with an acquaintance, Sherry Diggins. Appellant told Ms. Diggins that he was going to run into some money on Sunday, the day of the murders. Sunday evening appellant came to Ms. Diggins' house and asked if they could go somewhere private. She and appellant went to her bedroom where appellant asked her to open envelopes containing money. The envelopes were those used to hold money in the safe at the station. She gave him a black velvet bag in which he placed a large sum of cash he had with him and the money from the envelopes Ms. Diggins had opened. The bag was later recovered from appellant's apartment with $500 cash inside. At the time Ms. Diggins saw him appellant had two guns; he took one with him and left the other, a .32 caliber Smith and Wesson revolver, with Ms. Diggins. This latter gun was later determined by a ballistics expert to be the weapon used to murder both Smith and Presbery. Appellant had also given Ms. Diggins bullet shells to throw away. When she inquired about the shells, he replied, "it took that many to do the job." Some of the shells were recovered by police and determined to be of the same manufacture as the bullets found in the victims' bodies.

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

[ 511 Pa. Page 309]

II. PRE-TRIAL MATTERS

Appellant contends that the trial court erred in denying him standing to challenge the search of Ms. Diggins' residence and the seizure of physical evidence therefrom. The search was conducted pursuant to a warrant. Seized in the search were the murder weapon, bullet shells, and money taken from the service station. The court denied appellant standing to challenge the search and seizure on the basis that he had no expectation of privacy in Ms. Diggins' residence. See Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983). Appellant, however, asserts that he was entitled to "automatic" standing.

In asserting this claim, appellant relies on Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), wherein a majority of this Court held that automatic standing was a viable doctrine in this Commonwealth. Cf. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) (United States Supreme Court abolished automatic standing under the Fourth Amendment to the Federal Constitution). The doctrine recognizes standing to challenge a search and seizure in a defendant accused of an offense of which an essential element of the prosecution's case is possession of the seized evidence at the time of the contested search and seizure. See: Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976), cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976).

In Treftz, supra, we adopted the standards for standing set forth by the United States Supreme Court in Brown, supra. Under those standards a defendant must allege one of the following "personal" interests in order to establish standing: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged include as an essential element of the prosecution's case, the element of possession at the time of the contested search and seizure; or (4) a proprietary or possessory interest in the

[ 511 Pa. Page 310]

    searched premises. Treftz, 465 Pa. at 621-22, 351 A.2d at 268.

Appellant did not allege any of these personal interests. He was not present at Ms. Diggins' home at the time of the search and seizure; nor did he have any proprietary or possessory interest in those premises. The only possessory offense of which appellant was accused was possession of an instrument of crime. The prosecution's case against him on that charge was not dependent upon his possession of the instrument of crime at the time of the contested search and seizure. Rather, that charge emanated from appellant's criminal employment of the Smith and Wesson revolver in the commission of the murders and robbery. Finally, appellant did not assert a possessory interest in the evidence seized. See Brown, supra 411 U.S. at 228, 93 S.Ct. at 1568. Thus, appellant did not establish the prerequisites necessary to invoke automatic standing to contest the search and seizure of evidence from the residence of Ms. Diggins.

Appellant next contends that the exclusion for cause of two prospective jurors from the panel, based upon their expressed views on capital punishment, violated the mandate of the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968). In that case the Court held that a death sentence will be vacated where prospective jurors have been excluded from the panel simply for voicing general opposition to the death penalty or for expressing conscientious or religious scruples against its infliction.*fn7

This contention lacks merit. First of all, defense counsel affirmatively indicated that he had no objection to the challenges for cause of the two venireman, Scafonas and

[ 511 Pa. Page 311]

Read. Obviously, he was satisfied that these two venireman were properly excluded under the standards of Witherspoon and its progeny. Under these circumstances, the issue of whether the exclusion was proper, even though of constitutional dimension, has been waived. Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984).

Moreover, the record reveals that these veniremen were properly excused. In its recent examination of the Witherspoon standard, the United States Supreme Court chose the test set forth in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), as preferable to the original standards of Witherspoon. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The Adams test is whether the juror's views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Adams, supra 448 U.S. at 45, 100 S.Ct. at 2526.*fn8

Upon examination, venireman Scafonas expressed his view that the death penalty is an academic question since it is not carried out; "it's a term used to give life imprisonment, in that sense, I am for it." However, he stated that if death penalties were carried out in Pennsylvania he would not be in favor of the penalty and if he knew the penalty would be carried out in this case, he might find some reservation with returning a sentence of death. These views, which focused on whether the death penalty would actually be carried out, would have permitted his decision to be influenced by extraneous considerations. His response that he was in favor of the death penalty as a term used to give life imprisonment evinced a misunderstanding of the law which could have led him to misapply the court's instructions, possibly to the defendant's prejudice.

[ 511 Pa. Page 312]

The other venireman, Mr. Read, expressed his view that as regards the judge's instructions on reasonable doubt and the death penalty, he "could not put the two together." This view clearly expressed his inability to follow the instructions of ...


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