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COMMONWEALTH PENNSYLVANIA v. ROBERT PERRY DEHART (10/03/86)

decided: October 3, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT PERRY DEHART, APPELLANT



Appeals from Judgments of Sentence of Court of Common Pleas of Huntingdon County, Criminal Division entered September 28, 1984 at Nos. 98, 144 C.A. 1983.

COUNSEL

R. Thomas Forr, Jr., Hollidaysburg, for appellant.

Stewart L. Kurtz, Dist. Atty., Huntingdon, LeRoy S. Zimmerman, Atty. Gen., Harrisburg, for appellee.

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

Author: Nix

[ 512 Pa. Page 240]

OPINION

This is an automatic direct appeal*fn1 from a death sentence imposed upon appellant by the Court of Common Pleas of Huntingdon County following his conviction of first degree murder. Appellant also appeals his related convictions for

[ 512 Pa. Page 241]

    robbery, burglary and escape. For the reasons that follow, we affirm those convictions and the judgments of sentence thereon.

I.

On April 3, 1983, appellant was arrested in Pottstown, Pennsylvania on a charge that he had escaped from prison. On April 14, 1983, after a preliminary hearing before a district justice, appellant was held over for trial on that charge. Appellant was subsequently arraigned on May 13, 1983. On June 2, 1983, a criminal complaint was filed charging appellant with criminal homicide, robbery, burglary and theft by unlawful taking. A district justice conducted a preliminary hearing on those charges on June 15, 1983, and appellant was arraigned on July 22, 1983.

Appellant filed numerous pretrial motions requesting, inter alia, a change of venue, a psychiatric examination, investigative funds, suppression of identifications and other evidence, a writ of habeas corpus, severance, sequestration of witnesses and jurors, and the selection of two juries. The Commonwealth's pretrial motions included a motion for consolidation of the escape charge with the homicide and related charges. The Court of Common Pleas of Huntingdon County granted a change of venue on September 21, 1983 and this Court directed that a jury be impanelled in Franklin County. As to appellant's other motions, the trial court granted appellant's requests for psychiatric examination, investigative funds, suppression of certain physical evidence and sequestration of witnesses but denied all other relief. The court granted the Commonwealth's motion for consolidation.

Appellant's trial was conducted from November 14 to 17, 1983. After the conclusion of the Commonwealth's case the defense rested without presenting any evidence. The jury found appellant guilty of first degree murder, robbery, burglary and escape. Defense counsel at that point requested a continuance and additional funds to procure the testimony of expert witnesses. Those requests were denied

[ 512 Pa. Page 242]

    and a sentencing hearing was conducted at which the defense presented the testimony of appellant's grandmother and a local minister. The Commonwealth chose to rely on the evidence presented at trial. After deliberation as to the sentence to be imposed on the murder conviction, the jury returned a verdict of death, finding that the homicide was committed in the perpetration of a felony, and that the aggravating circumstance outweighed the mitigating circumstances proven by appellant. The Court of Common Pleas subsequently denied appellant's post-verdict motions and sentenced him to death, four to ten years' imprisonment on the robbery and burglary convictions, to be served concurrently but consecutive to the death sentence, and three to seven years' imprisonment on the escape charge, to be served consecutive to the other sentences. This direct appeal followed.

II.

In each case in which the death sentence is imposed, this Court will conduct an independent review of the sufficiency of the evidence.*fn2 Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1372 (1983). In accordance with well established law, the evidence presented and all reasonable inferences therefrom must be viewed in the light most favorable to the Commonwealth as verdict-winner. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714, cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984); Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Tomoney, 488 Pa. 324, 412 A.2d 531 (1980); Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979). So considered, the testimony adduced established the following facts.

On March 24, 1983, appellant, a prisoner at the State Correctional Institution at Huntingdon ("SCIH"), working

[ 512 Pa. Page 243]

    as a milker in that prison's dairy detail, escaped from his worksite outside the prison grounds. Prior to the escape another inmate, Earl Bortz, at the request of Donnie Summers, a third inmate and a friend of appellant's, had telephoned Rodney Greenawalt of Pottstown, Pennsylvania, indicating that Greenawalt would be visited by "a friend from California." Some time on March 25, 1983, appellant arrived in Lincoln Township, Huntingdon County, some fifteen miles south of SCIH. The details of the homicide which followed were provided by David Parks, another SCIH inmate, who had discussed the matter with appellant while occupying an adjoining cell. Appellant broke into and ransacked the cabin of the victim, Terry Hatch, while Hatch was out, and found a 16-gauge, single action shotgun on the premises, which he test-fired into a pillow, retrieving the shell casing. When Hatch returned, he was "ambushed" by appellant, who shot him in the back and again, after Hatch fell to the floor, in the neck/shoulder area. Appellant was able to find only one of the two shell casings produced by the shots.

On March 26, 1983, appellant, who had taken the victim's 1980 green and white Dodge Diplomat, shotgun and Master-Card, visited a mall in the Lancaster area, where, according to the testimony of two salesclerks who had waited on appellant and subsequently picked appellant's picture from a photo array and identified him at trial, he used the victim's credit card to purchase a pair of blue jeans and some athletic socks. That evening appellant approached Laurie Gamber, a woman who had dated Donnie Summers, in a bar in Columbia, Lancaster County. Appellant told Gamber, who subsequently identified him at trial, he had escaped from SCIH and asked her to write to Summers. Appellant arrived at Rodney Greenawalt's home in Pottstown the following day and remained there for about a week. During that time Greenawalt arranged, at appellant's request, for the sale of the victim's car and shotgun. At trial both Greenawalt and his wife, Sherry Ann, confirmed

[ 512 Pa. Page 244]

    that they had received phone calls from Earl Bortz and identified appellant as their visitor.

On the same day, March 27, 1983, the victim's body was discovered by a neighbor. The State Police were summoned and an autopsy and investigation followed. The police observed a trail of blood leading from the front porch of the victim's cabin, around to the back steps, up the steps and into the bedroom where the body was found. The police retrieved the spent shell appellant had been unable to locate and the pillow into which appellant had initially fired the victim's shotgun. It was determined after an autopsy that the victim died as a result of a massive hemorrhage caused by two large gunshot wounds.

Edward Otter, who had purchased the car from Greenawalt, drove to Huntingdon County to visit his girlfriend on April 1, 1983. While there he read in the Huntingdon Daily News that the State Police were searching for a car, which matched the description of the one he had purchased, in connection with a murder. On April 3, 1983, after returning to the Pottstown area, Otter contacted the police and turned over the vehicle, providing the police information that led to appellant's arrest on escape charges at a bar in Pottstown that same day. It was later established that the vehicle in question has been registered in the victim's name. Appellant was taken to the State Correctional Institution at Graterford, where the police seized the blue jeans and athletic socks appellant had been wearing. A maroon jacket identified as belonging to the victim, which appellant had left at the bar where he was arrested, was subsequently turned over to the police. The shotgun sold by Greenwalt at appellant's request was also recovered and determined by ballistics experts to be the murder weapon.

Based upon the foregoing recitation, it is clear that the Commonwealth established beyond a reasonable doubt that appellant committed first degree murder, as well as the other crimes charged.*fn3

[ 512 Pa. Page 245]

III.

Appellant raises numerous claims of error with respect to his convictions and the imposition of the death penalty which we shall address seriatim.

A. Consolidation of Charges

Appellant first argues that the trial court erred in consolidating for trial the escape charge with the homicide and other charges, which prejudiced him by placing before the jury the existence of his prior criminal record. Crucial to our consideration of this claim is Rule 1127 of the Pennsylvania Rules of Criminal Procedure, which provides in pertinent part:

A. Standards

(1) Offenses charged in separate indictments or informations may be tried together if:

(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or

(b) the offenses charged are based on the same act or transaction.

Given the facts of this case, the requirements of Rule 1127(A)(1)(b) are clearly satisfied. The escape and subsequent crimes were part of the same transaction. Appellant's escape was planned in advance, with arrangements made for him to seek refuge in Pottstown. The homicide, robbery and burglary were perpetrated to provide him the transportation he needed to reach his destination and street clothing to replace his prison garb. See Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964); Commonwealth v. Ferrigan, 44 Pa. 386 (1863).

Appellant does not attempt to refute the Commonwealth's theory that the homicide was committed in furtherance of the escape, i.e., that the crimes charged were part of the same criminal episode, but contends instead that the requirements

[ 512 Pa. Page 246]

    of subsection 1127(A)(1)(a) were not met. In view of the foregoing discussion this argument is irrelevant. Moreover, it ignores the Rule's plain use of the disjunctive "or" between subsections (A)(1)(a) and (A)(1)(b). This initial assignment of error is therefore without merit.

B. Voir Dire

Appellant next challenges several aspects of the jury selection process in his case. First, he alleges that the trial court violated Pa.R.Crim.P. 1106(e) by asking the prospective jurors questions as a group before proceeding to an individual voir ...


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