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filed: September 29, 1986.


Appeal from the Judgment of Sentence of May 20, 1985, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8104235.


Michael J. Healey, Pittsburgh, for appellant.

Sean K. Code, Assistant District Attorney, Pittsburgh, for Com., appellee.

Rowley, McEwen and Hester, JJ.

Author: Hester

[ 357 Pa. Super. Page 311]

In this appeal from judgment of sentence, a mandatory life term, entered upon appellant's conviction of first degree murder by a jury, appellant raises numerous issues alleging trial error and ineffectiveness of trial counsel. We hold that no reversible error occurred, and affirm.

Appellant was one of eight men who participated in a conspiracy which led to the contract killing of Norman McGregor on December 14, 1978. The events surrounding the conspiracy and murder are summarized in Commonwealth v. Watson, 355 Pa. Super. 160, 512 A.2d 1261 (1986). Appellant was one of the intermediaries between Thomas Skelton, who paid for the murder, and James Watson, who shot the victim.

Following the confessions of three conspirators, appellant was brought to trial on February 21, 1984, on a general charge of criminal homicide. The jury returned a verdict of guilty of murder in the first degree and imposed a life sentence. Appellant retained new counsel following his trial who presented post-verdict motions which were denied. Appellant appealed from the judgment of sentence entered on May 20, 1985.

[ 357 Pa. Super. Page 312]

Appellant raises five issues. He argues that: 1) trial counsel was ineffective in failing to object to deliberate references to appellant's past, by Commonwealth witnesses and by the prosecutor, from which the jury could only have inferred that he had engaged in prior criminal activity; 2) the trial court erred in failing to instruct the jury on (a) the statutory exception to accomplice liability, (b) voluntary manslaughter, and (c) criminal solicitation; 3) the trial court erred in permitting the Commonwealth to question prospective jurors regarding their attitude toward the death penalty and in allowing the Commonwealth to challenge for cause any person irrevocably committed to vote against the death penalty; 4) trial counsel was ineffective for failing to produce a necessary witness who could have impeached the credibility of a Commonwealth witness; and 5) the evidence was insufficient as a matter of law to support a jury verdict finding appellant guilty of first degree murder beyond a reasonable doubt. We will address the issues seriatum.

In the first issue, appellant presents a dual argument. He claims, first, that references to his past inevitably implied prior criminal behavior and were so prejudicial they constituted reversible error, and second, that trial counsel was ineffective for failing to object to the references. Appellant objects to three statements, elicited on direct examination of Commonwealth witnesses, which allegedly implied prior criminal behavior by appellant, as well as to a portion of the prosecutor's closing argument.

The first challenged testimony was given by Charles Kellington, who testified that appellant and co-conspirator Gerald Walls recommended that Robert Bricker be solicited to kill the victim. The prosecutor asked Kellington whether appellant and Walls were suggesting Bricker was "qualified to do this sort of thing," and Kellington responded, "Yes. He told me about a murder that he committed, a guy named Mitch." Reproduced record (R.) at 205a. Appellant argues that this testimony implicates him in the murder of Mitch. We do not agree. The clear import of the testimony is that Bricker was qualified to kill the victim because Bricker had

[ 357 Pa. Super. Page 313]

    murdered Mitch, not that appellant or Walls had been involved in the murder of Mitch.

Appellant argues that testimony by Commonwealth witnesses Gerald Walls and Charles Rossi implied that they had met appellant in prison, and further, that appellant must have been in prison due to a prior criminal conviction. Appellant relies on Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), to support his argument. Although the parties in Bricker were the same ones involved in this conspiracy and though the testimony challenged by appellant is indeed similar to that which was condemned in Bricker, we hold that it is sufficiently distinguishable to warrant a different result. We hold that the testimony in appellant's trial did not create the inevitable implication of prior criminal activity which required a new trial in Bricker, supra, 506 Pa. at 584, 487 A.2d at 350-51.

In the Bricker trial, the prosecutor elicited from Charles Rossi a detailed litany of his criminal record and dates of incarceration, followed by a reiteration of the exact years Rossi had spent in prison, followed almost immediately by testimony that Rossi had known Bricker for about twenty years, which reasonably implied that the two had met during one of Rossi's lengthy periods of incarceration. Unlike the testimony in the Bricker case, the testimony of Walls and Rossi at appellant's trial did not so directly imply that the parties met in prison.

In the testimony of both Walls and Rossi at appellant's trial, their statements as to how long they had known appellant were substantially separated from their prior testimony as to terms of imprisonment, so that the jury was not likely to infer that appellant had been incarcerated with them. Nor had the prosecutor reemphasized the dates either Walls or Rossi had been in prison so as to underscore the impermissible implication that appellant had a prison record, as was done in the Bricker case. Our review of the transcript of appellant's trial convinces us that it would have taken an exceedingly astute jury to draw the inference appellant argues.

[ 357 Pa. Super. Page 314]

Appellant's final allegation pertaining to implications of prior criminal activity relates to a portion of the prosecutor's closing argument. We reproduce the challenged statements in full, together with the sidebar conference which followed.

[MR. STEELE, Assistant District Attorney:] But does what they say ring true? This is a contract killing, the clubhouse, an inside circle of people who have a secret among them that they talk about and tell no one else. Who is going to know what those secrets are? Not the Boy Scout Leader in your town, but it is going to take somebody like a Kellington and somebody like a Walls to even be involved in a contract killing to even raise the subject. Kellington says that he walked into Butchie's [bar] that night and Griffin and Walls were there and they started to talk about a contract killing. And no problem. That was their kind of stuff.

And Walls says that he was the best friend. And you remember how he put it, he was with him all of the time, Jimmy Griffin, Jimmy. Snooky was with Jimmy all of the time. Best friends, closest of people, families together. They were the closest and tightest, and yet today Snooky Walls is the merchant of menace, he is the con man, he is the drug dealer, he is the murder[er], he is the thug, he is all of those things. Well, he was all of those things at that time and he was spending everyday with Jimmy Griffin. And when he came back from Florida in trouble and Jimmy told him to hang with him in Pittsburgh, he was all of those things too then. He was a convicted murder[er] then, ...

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