Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information Nos. 75, 77 and 79, May Session 1982 on March 8, 1984.
Norris E. Gelman, Philadelphia, for appellant.
Robert B. Lawler, Chief/Appeals Div., Asst. Dist. Atty., Eric B. Henson, Deputy Dist. Atty., Steven J. Cooperstein, Asst. Dist. Atty., Philadelphia, Marion E. MacIntrye, Deputy Atty. Gen., Harrisburg, for appellee.
Nix, C.j.,*fn* and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins in this opinion and files a concurring opinion. Zappala and Papadakos, JJ., concur in the result. Larsen, J., dissents.
This is a direct appeal from a judgment imposing upon Bobby Lee Sims, the appellant herein, the sentence of death for the killing of one Warren Teasley. Sims had been tried before a jury, which, after finding him guilty of first-degree murder, voted to impose the penalty of death. The jury also found him guilty of robbery and criminal conspiracy. After the denial of post-trial motions, the appellant was given consecutive sentences of ten to twenty years' imprisonment for the robbery and five to ten years' imprisonment for the conspiracy.
On December 1, 1980, Warren Teasley was in a certain third-floor room rented to a Barry Hilton. There, on that date, Teasley was killed by being shot in the back of the head with a .45 caliber automatic pistol. His body was then taken from the room and left on the sidewalk outside the apartment building. Hilton, the occupant of the room where the shooting occurred, testified at trial as a Commonwealth witness. From his testimony we have the following account of the murder and its related events.
Hilton used the room as a place for entertaining and the taking of drugs. On the day in question, but prior to the shooting, he was in the room with a girlfriend guarding some drugs for an associate nicknamed "Breeze." About 4:00 p.m. that day the appellant, Sims, arrived accompanied
by one Alfred Dill, also known as "Dirt." The purpose of their visit was to purchase drugs. Sims asked for "Breeze"; upon being told that the person was not there, Sims stated that he and his companion would return later. When the appellant and Dill came back they had with them another man, Warren Teasley.
After Sims, Dill and Teasley had entered the room, a dispute arose between the latter two concerning money. Dill asked Teasley where certain funds were. Teasley responded by saying that he had already given him forty-five dollars. Dill repeated his demand for money, with Teasley answering that he did not have any more. Dill then pulled out a gun, pushed Teasley onto a bed, and hit him on the back of the head with the weapon.
Hilton's girlfriend became alarmed at the eruption of violence, which prompted him to escort her from the room. In the course of doing that he requested the other men to take their dispute elsewhere. When he returned Dill and Teasley were still struggling on the bed. According to Hilton, he sought to intercede in the fight but to no avail. Dill was going through Teasley's pockets, and resumed pistol-whipping him when nothing was found. Teasley again protested that he had no more money and added that they would have to kill him. At that point Sims said, "I'm tired of this; give me the gun." Dill handed the gun to Sims, who then pressed it against the back of Teasley's head and fired. Hilton departed, leaving Dill and the appellant in a discussion about what to do with the body.
Hilton returned to the site of the apartment building later that same day. Upon approaching the building he observed that the police had arrived and were in the process of drawing a chalk outline around Teasley's body, which was then lying face down on the sidewalk. Because Hilton had a criminal record which included a homicide conviction, he avoided the police. However, a trail of blood led from the body back up to Hilton's room. That fact, coupled with statements the police obtained from two residents of the
building, resulted in the issuance of a warrant for Hilton's arrest for the murder of Teasley.
About a week later Hilton surrendered to the police, whereupon he was placed under arrest and charged. He denied having any involvement in the killing. And, although he also denied even having seen the killing, he told the police that the crime was committed by two men whom he identified only as "Dirt" and "Junior." At Hilton's ensuing preliminary hearing no witnesses appeared to testify against him; consequently, the case against him was dismissed.
In the meanwhile, on January 3, 1981, Bobby Lee Sims was arrested on a charge unrelated to the murder of Teasley. However, the police found in Sims' possession at that time the gun which had been used to do the killing. A few months after that discovery, a detective newly assigned to the murder case decided to re-interview Barry Hilton. Although Hilton continued to deny that he saw the shooting, he disclosed to the police that the "Dirt" and "Junior" he had referred to earlier were actually Sims and Dill. In a subsequent police interview, held on October 3, 1981, Hilton admitted to the authorities for the very first time that he was an eye-witness to the shooting in his room. In the wake of that disclosure and other details then provided by Hilton, the police arrested appellant Sims and charged him with the murder of Warren Teasley. Hilton was granted immunity from prosecution, in return for his agreeing to testify at trial for the Commonwealth.
At the time of trial, but before the reception of any evidence, Sims' defense counsel filed a motion for leave to cross-examine witness Hilton as to what communications the latter made about the shooting to the attorney who represented him during the time he was charged with the crime. A companion motion was made requesting permission to call Hilton's former attorney as a witness to inquire of him about the same subject matter. In considering those motions the trial court was advised, outside the presence of the jury, that Hilton wished to assert the "attorney-client
privilege" as codified in section 5916 of the Judicial Code, 42 Pa.C.S. § 5916. The trial court then ruled, also outside of the jury's presence, that the privilege applied and that its assertion by the witness barred the defense from making the requested inquiries either of him or his former attorney. The court further ruled that the defense could not ask Hilton any questions even touching upon his assertion of the privilege. Thus, the trial court's rulings on the above motions not only prevented the jury from knowing what Hilton had previously told his attorney about the killing of Teasley, but also prevented the jury from even knowing that such information was being withheld by the witness.
The substance of Barry Hilton's trial testimony concerning the shooting of Teasley is reflected in this opinion's earlier recounting of the crime and its attendant circumstances. It was entirely within the jury's province to accept that testimony. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). In addition to Hilton's testimony, and the police evidence about the discovery of the murder weapon, the Commonwealth also presented the testimony of two women who stated that the appellant admitted to them that he had killed Teasley.
The appellant took the witness stand and denied having had any participation in the shooting. According to his testimony, he was not in ...