Appeal from the Judgment of Sentence of July 1, 1985 in the Court of Common Pleas of Bucks County, Criminal Division #3120/1983 in which the sentence of death was imposed after a conviction of First Degree Murder.
John J. Kerrigan, Newtown, for appellant.
Michael J. Kane, Dist. Atty., Alan M. Rubenstein, Asst. Dist. Atty., Doylestown, Stephen B. Harris, Warrington, 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.
On November 22, 1983, in a trial by jury in the Court of Common Pleas of Bucks County, the appellant, Clifford
Smith, was found guilty of murder of the first degree. A separate sentencing hearing was then held, as required by 42 Pa.C.S.A. § 9711, and appellant was sentenced to death. The instant direct appeal ensued.
The incident from which the conviction arose was one in which appellant committed armed robbery at a pharmacy, and, in the course of doing so, shot and killed the pharmacist. The facts and supporting testimony consisted of the following.
On Friday, June 17, 1983, at approximately 4:15 p.m., two black males, Clifford Smith and Roland Alston, entered the premises of the Parke-Woodburne Apothecary in Levittown, Bucks County, for the purpose of committing an armed robbery. Once inside the store both Smith and Alston separated under the pretense of examining merchandise. After waiting for the customers in the pharmacy to leave, Alston approached a clerk, Doris Forney, displayed a handgun, and ordered her and the proprietor/pharmacist, Richard Sharp, to lie upon the floor. Alston then ordered both Forney and Sharp to close their eyes, whereupon Alston and Smith began removing jewelry from them. Both Forney and Sharp were warned that they would be shot if they offered any resistance. Money was also taken from the store's cash register.
While this robbery was in progress a customer, Casimir Splet, entered the pharmacy. Splet was immediately accosted by the robbers and was ordered to lie upon the floor. Splet's wristwatch and wallet were then forcibly removed from him. Forney and Sharp were lying next to each other with their legs touching as the forcible removal of their money and jewelry was taking place. They were unaware at that time that Splet had entered the premises and become a robbery victim. After the robbery had apparently been completed, and while the victims were still lying on the floor, Forney and Splet heard one loud shot. According to Forney, she could feel the smoke from the gunshot in her face and could smell the powder from the discharge of the weapon. While her eyes were closed, she could feel that
the tremor in Sharp's legs had stopped. Both Forney and Splet then heard footsteps leaving the premises and heard the door open and then close. When Forney opened her eyes she saw Sharp, a pool of blood around his head, and pieces of skull and brain matter in the immediate vicinity of his body. Both Forney and Splet were able to make a positive identification of Alston as one of the robbers.
According to the expert testimony of the Chief Deputy Medical Examiner for the City of Philadelphia, an autopsy upon the person of Sharp revealed that he had been fatally shot with a .38 caliber bullet. Testimony was also produced concerning the path of the bullet and the point of impact, and indicated that Sharp had been shot in the back of his head. Massive damage was done to Sharp's skull from the penetration of the bullet, and the damage was described as having been caused by a "hard contact" discharge with the muzzle of a handgun practically touching Sharp's head.
Eyewitnesses were present in the area of the pharmacy before, during, and immediately after the murder of Sharp. Among these was Thelma Cline, a woman who was seated outside on the sidewalk. Cline identified both Alston and Smith as the persons who entered the store and who, after being inside for a few minutes, left the premises through the same front doorway and ran away from the pharmacy. Also testifying was John McGrory, an employee of a convenience store located in the same shopping center as the pharmacy. McGrory identified both Alston and Smith as the two individuals who had entered the convenience store prior to the murder of Sharp, and who, after remaining in the convenience store for a few minutes, left the store and headed in the direction of the pharmacy. Also testifying was Gerald Gowen. Gowen was driving his car down a road adjacent to the shopping center immediately after the robbery/murder occurred. Gowen as well was able to make a positive identification of both Alston and Smith, inasmuch as both of these individuals had run across the road directly in front of Gowen's car, and Gowen gave a descriptive identification of the vehicle to which they fled. All of these
witnesses, Cline, McGrory, and Gowen also identified the clothing worn by Alston and Smith. This clothing (shorts, sneakers, Phillies baseball cap, a 76'ers painter's cap, etc.) was later recovered at two separate residences in Philadelphia, one being the home of Frances Atkins and the other being the home of Bernadette Cheryl Yancey. At trial both Atkins, a girlfriend of Smith, and Yancey, a girlfriend of Alston, testified that Smith and Alston placed their clothes inside each location just hours after the instant homicide. The clothing worn by Alston during the robbery/murder, a black "Trax" jogging suit ...