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COMMONWEALTH PENNSYLVANIA v. RODNEY LAWRENCE GRIFFIN (09/26/86)

decided: September 26, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RODNEY LAWRENCE GRIFFIN, APPELLANT



Appeal from the judgment of sentence entered on August 5, 1985, and from the order of December 20, 1985 denying appellant's supplemental post-verdict motions, entered by the Court of Common Pleas, Criminal Division of Delaware County at No. 1655-84.

COUNSEL

Leslie Potter, Media, for appellant.

John A. Reilly, Dist. Atty., Dennis C. McAndrews, Media, for appellee.

Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case.

Author: Larsen

[ 511 Pa. Page 557]

OPINION OF THE COURT

Rodney Lawrence Griffin, appellant, brings this appeal from his convictions for murder of the first degree and criminal conspiracy, his judgments of sentence of death (on the murder conviction) and five to ten years imprisonment (on the conspiracy conviction), and from the lower court's denial of his supplemental post-verdict motions alleging ineffective assistance of counsel following a post-conviction evidentiary hearing on said motions.

During the early morning hours of December 17, 1983, Ellen Lewis was shot once in the head from very close range and died as a result of her wound. Ms. Lewis, a student at Cheyney State University in Delaware County, was attending a party in room 521 of a dormitory building on the Cheyney campus. The room was quite crowded with students who were dancing to loud music and strobe lights. There were no eyewitnesses to the shooting.

Appellant was arrested on April 17, 1984, and charged with the murder of Ellen Lewis, aggravated assault, criminal conspiracy and various weapons charges. The lower court granted appellant's pre-trial motion for a change of venire and, on September 19, 1984, Chief Justice Nix for this Court signed an order directing that a jury be empanelled in Montgomery County to serve as the trial jury in the Court of Common Pleas of Delaware County.

Voir dire began on October 2, 1984, with the Honorable Melvin G. Levy presiding. A jury was selected and trial commenced on October 5th, ending on October 10th with the jury's verdict finding appellant guilty of murder of the first degree and criminal conspiracy.*fn1 A sentencing proceeding was conducted immediately thereafter before the same jury as required under the death penalty sentencing

[ 511 Pa. Page 558]

    procedures of the Sentencing Code, 42 Pa.C.S.A. § 9711. The jury returned the sentence of death on the murder conviction on its findings that the Commonwealth had proven three aggravating circumstances, namely that "a contract was made," "recklessly endangering the lives and welfare of other persons," and "the significant history of prior convictions,"*fn2 which aggravating circumstances outweighed any mitigating circumstances.

Written post-verdict motions were filed and denied by a court en banc, and formal sentencing was scheduled for August 5, 1985. At this formal sentencing proceeding, appellant sought leave to file, nunc pro tunc, a handwritten pro se document captioned "Supplemental post-verdict motions -- effective assistance of counsel." The lower court "determined to treat the motions as a PCHA [Post-Conviction Hearing Act, 42 Pa.C.S.A. §§ 9541-9551] petition alleging ineffective assistance of trial counsel." Findings of Fact No. 6, Opinion and Order of Judge Levy, December 20, 1985 denying appellant's motions.

An evidentiary hearing was held on October 11, 1985 on appellant's supplemental post-verdict motions, at which appellant chose to represent himself, with stand-by counsel appointed and consulted on occasion throughout the proceeding. The witnesses at this evidentiary hearing were appellant, for himself, and Joseph A. Malley, Esquire, defense trial counsel, for the Commonwealth. By opinion and order of December 20, 1985, the Court of Common Pleas of Delaware County, per Judge Levy, denied appellant's supplemental post-verdict motions.

In this appeal, appellant challenges his convictions for murder and conspiracy, his judgments of sentence, and the lower court's denial of his original post-verdict motions and his supplemental (PCHA) post-verdict motions. For the

[ 511 Pa. Page 559]

    reasons that follow, we affirm the lower court's orders and appellant's convictions and judgments of sentence.

In his direct appeal, appellant first challenges the sufficiency of the evidence to sustain his convictions for murder of the first degree and criminal conspiracy. In evaluating this contention, we view the evidence in the light most favorable to the Commonwealth as verdict winner and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984); Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Commonwealth v. Rhodes, 510 Pa. 537, 540, 510 A.2d 1217, 1218 (1986). Viewed in that light, the record disclosed the following.

The Commonwealth presented numerous Cheyney students who were present on the fifth floor of the dormitory building and/or at the party in room 521 on that floor on the evening of December 16 and early morning of December 17, 1983. Three of these witnesses testified that appellant was present in room 521 at the time Ellen Lewis was shot at about 1:30 a.m., December 17th. One of these witnesses observed him near the area from which the fatal shot had been fired approximately one minute before the shooting. Other witnesses saw appellant in the vicinity of room 521 shortly before or after the shooting.

Additionally, three witnesses testified that appellant had brandished a hand gun on the night of the party on at least two occasions prior to the shooting in the vicinity of room 521, and, on other occasions earlier in the evening, had displayed some bullets. Appellant had threatened Charles Faust with the gun, in the presence of another witness. Charles Faust identified a photograph of the murder weapon, found outside the dormitory building shortly after the shooting, as the gun that appellant had earlier threatened him with. Another witness also identified the photograph

[ 511 Pa. Page 560]

    of the murder weapon as appellant's gun, with which he had seen him on eight or nine previous occasions within a month or two of the shooting.

The Commonwealth also presented evidence as to appellant's motive for killing Ellen Lewis. Various state and federal law enforcement officers and officials testified about an investigation of a bank fraud scheme of illegal check cashing transactions involving the victim and one Russell Moss. Testimony of these witnesses disclosed that Ellen Lewis had been arrested for her participation in this scheme and had agreed to cooperate in the investigation and to testify against Russell Moss. Mr. Moss had been confronted with the evidence against him on October 26, 1983 by federal investigators. Mr. Moss was a close friend of appellant and both were members of a fraternal organization known as Groove Phi Groove. Although law enforcement officers made extensive efforts to locate Mr. Moss, he could not be found and had not been seen in the area since shortly after appellant's arrest for the shooting of Ellen Lewis.

Important testimony was provided by Tyrone Trehern, a young man who lived near the Cheney campus and who had participated with appellant in an armed robbery of a beer distributor in February, 1983, along with another accomplice. Trehern testified that approximately one-month before Ellen Lewis was shot, appellant told Trehern that Russell Moss was in trouble and wanted appellant to do him a favor and "eliminate" Ellen Lewis to prevent her from testifying against him (Moss). Trehern testified that appellant made similar statements in early December, 1983 and that appellant stated he was to receive "drugs, maybe cocaine, a gun and money, all adding up to $10,000 for the execution of Ellen Lewis." Notes of Testimony (N.T.), October 5, 1984 at 194. This witness further testified that he visited appellant (at ...


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