Appeal from Judgments of Sentence of the Court of Common Pleas of Butler County, Criminal Division Pennsylvania, at C.A.A. No. 721 of 1984, Book 79, Page 260, entered June 27, 1985.
Kurt S. Rishor (Court-appointed), Butler, for appellant.
David L. Cook, Dist. Atty., David A. Hepting, Asst. Dist. Atty., Robert F. Hawk, Asst. Dist. Atty., Butler, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., joins this opinion and files a concurring opinion in which McDermott, J., joins. Papadakos, J., concurs in the result. Larsen, J., files a concurring and dissenting opinion.
This is a direct appeal from imposition of judgment of sentence of death, 42 Pa.C.S.A. §§ 722(4), 9711(h). For the reasons that follow, we will not disturb the convictions, but we reverse the judgment of sentence of death and remand for imposition of a life sentence.
Appellant was convicted along with his brother, Ronald Alfred Williams, of murder of the first degree, criminal conspiracy, possession of instruments of crime, prohibited offensive weapons, receiving stolen property, and firearms not to be carried without a license in connection with the shooting death of Archie Bradley in Cranberry Township, Butler County.
On August 5, 1984, at approximately 10:15 p.m., Archie Bradley arrived at his place of employment, a truck stop in Cranberry Township. At that time, a truck driver who had been watching television in the sleeper section of his tractor-trailer rig, which was located in the parking lot of the truck stop, heard some gun shots that sounded as though they had come from a pellet gun or air rifle. The truck driver looked out his window and saw a man standing in the fairly well-illuminated lot. The man was at a distance of approximately thirty feet, and was holding what appeared to be a gun or rifle (a weapon larger than a handgun), and the body of Archie Bradley was lying on the ground. The man then began to run across the parking lot towards Route 19. Based upon this brief but ample opportunity to view the man, the truck driver positively identified appellant, at a police line-up and at trial, as the man he had seen in the truck stop parking lot.
Bradley was pronounced dead on arrival at a hospital following the shooting. He had been shot five times at
close range with a .45 caliber weapon, and the wounds displayed a fanlike trajectory that indicated the shots had been fired from an automatic weapon. Eleven spent .45 caliber shell casings were later found at the crime scene.
Just after the shooting occurred, a police officer was driving on Route 19, at approximately 10:30 p.m., when he saw an Oldsmobile pull out of the truck stop. The Oldsmobile did not have its lights on, and its wheels were throwing gravel, so the officer commenced to follow the vehicle. Another motorist who was traveling on Route 19 at the time noticed that the Oldsmobile was being followed by the police car, and, while stopped at a red light, the motorist looked into the Oldsmobile while it was along side of his car. Later, in court, the motorist positively identified the driver of the Oldsmobile as appellant's brother and co-defendant, Ronald Williams.
After the motorist observed the Oldsmobile at the red light, a high speed police chase ensued in which the pursuing officer saw several objects being thrown from the Oldsmobile. The objects were later recovered by police investigators and were found to consist of a .45 caliber automatic weapon known as a "Mac-10" machine pistol, a Mac-10 ammunition clip, and a noise suppressor/silencer. Ballistics experts established that the Mac-10 machine pistol had inflicted the fatal wounds upon Bradley.
During pursuit of the Oldsmobile, the police officer briefly lost sight of the vehicle as it approached a police roadblock, but, upon backtracking, the officer found the vehicle abandoned and wrecked in a field. A search of the vehicle revealed .45 caliber ammunition, an attache case, .22 caliber weapons and ammunition, driver's licenses belonging to appellant and his brother, and an owner's registration card listing appellant's brother as the owner of the Oldsmobile. In addition, there was found in the vehicle a piece of paper upon which was written the name of the truck stop where the shooting had occurred, and, beside that name was the notation, "10:15."
Police radio bulletins were issued for the apprehension of appellant and his brother, and, early in the morning of the day following the shooting, both were captured by police officers in a neighboring township. At the time of capture, neither appellant nor his brother was carrying any identification. Appellant's brother was captured while walking along a street, and appellant, in a sweaty and exhausted condition, was found lying in a garden.
At trial, a resident of Detroit, Michigan identified the Mac-10 gun, and the attache case found in the Oldsmobile, as having been stolen from his car in Detroit. He further testified that, at the time of that theft, the Mac-10 gun was not equipped with a noise suppressor/silencer.
That the conviction is fully justified by the evidence is not denied. In fact, counsel for appellant admitted at the sentencing stage of the proceedings that the evidence of guilt was overwhelming. Nevertheless, in keeping with our determination to assess, in every case, the sufficiency of the evidence, Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d. 1237 (1983), reh'g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983), we have done so, and hold the evidence to be sufficient to sustain the convictions.
Appellant argues that the trial court abused its discretion in refusing to grant his request for appointment of new counsel on the eve of trial. Voir dire was scheduled to commence on January 17, 1985. By letter dated January 14, 1985, appellant requested the trial court to relieve his court-appointed counsel of any further duties in his matter for the reason that he felt he would "not get proper representation from Mr. Goldfinger." Counsel joined in the request, stating, "[Appellant] can't apparently enjoy, or we wouldn't be able to enjoy any kind of cooperation, perhaps, between counsel and client which could ultimately cause problems for his defense." Counsel added, without supplying details, that appellant had filed suit against him in federal court. The court refused appellant's request on
grounds appellant failed to state "substantial reasons" why new counsel should be appointed.
Whether a petition for change of court-appointed counsel should be granted is within the sound discretion of the trial court, Commonwealth v. Segers, 460 Pa. 149, 154, 331 A.2d 462, 465 (1975). Pa.R.Crim.P. 316(c) provides for appointment of counsel "whenever the interests of justice require it." That Rule further provides as follows:
(ii) A motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.
In view of appellant's failure to supply any reasons, much less substantial ones, why new counsel should be appointed, the trial court's refusal of that request was not an abuse of discretion.
Appellant makes several arguments regarding voir dire. First, appellant argues that "the trial court erred in forcing him to exhaust his peremptory challenges on veniremen who should have been excused for cause." Appellant challenged for cause four veniremen who stated their beliefs that, in effect, persons charged with crimes were probably guilty and, if innocent, ought to produce some evidence of innocence. Appellant claims these veniremen possessed a bias or prejudice that colored their ability to remain impartial.
It is not expected and the law does not require that jurors be free from all prejudice. Such a standard would be impossible to meet. Rather, "the test of disqualification is the juror's ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence, and this is to be determined by the discretion of the trial judge, based upon the juror's answers and demeanor . . . . Nothing short of a palpable abuse of discretion justifies a reversal in passing on a challenge for cause . . . ." Commonwealth v. Bighum, 452 Pa. 554, 560, 307 A.2d 255, 259 (1973), quoting Commonwealth v. Gelfi, 282 Pa. 434, 437-8, 128 A. 77, 79 (1925) (Citations omitted). See also Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751
(1961). "Even a statement by a juror that some evidence would be required to change an impression already formed by him would not be grounds for challenge for cause if he likewise said that he would be guided by the evidence," Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467, 471 (1953).
Applying these standards and reviewing the entire voir dire examination of the challenged veniremen, we find no error in the court's refusal to excuse these veniremen for cause. In addition to making the statements appellant finds objectionable, in response to questioning by the court, each venireman also expressed understanding that the accused had no burden of proof, was not required to give evidence, and was to be considered innocent until the Commonwealth proved its case beyond a reasonable doubt. "[A]s the examination was in the presence and under the control of the trial judge, he had better opportunity for discovering the nature and strength of the alleged disqualifying opinion than a printed report of the juror's testimony affords." Commonwealth v. Crossmire, 156 Pa. 304, 309, 27 A. 40, 41 (1893). There being no support on this record for a finding of a "palpable abuse of discretion," we will not disturb the trial judge's ruling.
Appellant also argues that two veniremen were improperly excused for cause on a basis broader than that permitted by Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Quoting Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), Wainwright reiterates:
[T]he proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment . . . is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."
469 U.S. at 423-26, 105 S.Ct. at 851-53, 83 L.Ed.2d at 851-852. Appellant argues that, as two veniremen indicated an ability to ...