Appeal from the Judgment of Sentence of Death imposed by the Court of Common Pleas, Criminal Division, of Lackawanna County on May 17, 1984, at No. 1386 A. thru I. of 1981.
Joseph L. Vullo, for appellant.
Ernest D. Preate, Dist. Atty., Marion E. MacIntyre, Deputy Atty. Gen., appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Hutchinson, J., join this opinion and file concurring opinions. Larsen, J., files a dissenting opinion in which McDermott, J., joins. Papadakos, J., files a dissenting opinion.
On May 27, 1982, in a trial by jury in the Court of Common Pleas of Lackawanna County, the appellant, Joseph G. Aulisio, was found guilty of two counts of murder of the first degree and two counts of kidnapping. A separate sentencing hearing was held, as required by 42 Pa.C.S.A. § 9711, and appellant was sentenced to death in connection with the two murder convictions. With respect to each of the two kidnapping convictions, a sentence of seven and one-half years to fifteen years imprisonment was imposed, such sentences to be served consecutively. The instant direct appeal ensued.
The incident from which the convictions arose was one in which appellant, who was fifteen years of age at the time, fatally shot two younger children, ages four and eight, after having taken them to a vacant house. The facts
regarding this incident were developed through the evidence at trial as follows.
On July 28, 1981, searchers discovered the bodies of Christopher Ziemba, age four, and Cheryl Ziemba, age eight, in a secluded and abandoned strip mining area near the town of Old Forge in Lackawanna County. Autopsies were performed, and it was determined that the children had been killed by two blasts from a .12 gauge shotgun, fired from close range, wounding the chest and head areas of the children, respectively. The mother of the victims, Mrs. Diane Ziemba, last saw her children at approximately 4:00 p.m. on July 26, 1981, at which time she watched from her apartment window as her two children, accompanied by appellant, entered an unfinished house on nearby property owned by appellant's family. Although the autopsies did not establish the exact time of death of the children, the autopsies did establish that the deaths likely occurred in the late afternoon of the day on which appellant was seen entering the house with the children. Physical evidence found in the house, to wit, blood stains, hair fibers, tissue residues, and other traces of shotgun usage including the presence of a shotgun pellet, established that the children had been shot in an upstairs bedroom and closet area.
It was also shown that, during the week preceding the murders, appellant had a .12 gauge shotgun, and ammunition, in his bedroom in a residential trailer near the unfinished house. After the murders, the shotgun was never again found, but spent .12 gauge shotgun shells were discovered under appellant's bed in the trailer. A crime laboratory determined that one of the shells had traces of blood upon it, though the traces were too small to permit confirmation that the blood was of human origin.
Two individuals, who had been unloading brush from a truck in a nearby strip mine area on the day the children were murdered, positively identified appellant as the person they had seen, around 4:45 p.m. that day, driving a small white car through the desolate and rough terrain where the children's bodies were later found. The car was
subsequently identified as belonging to appellant's family, and physical damage to the underside of the car, consistent with its having been driven over rough terrain, was shown to have occurred on the day in question. Appellant made a number of grossly inconsistent statements as to the manner in which the underside of the car had been damaged.
It was established that the children's bodies had been transported to the strip mining area in certain pieces of blood-stained blue and white carpeting that were found near the bodies. The carpet pieces were identified as having been in the possession of appellant prior to the crime. Fibers from the carpeting were found in the trunk of the car that appellant had been seen driving in the strip mining area where the bodies were dumped. Traces of human blood were found on a can in the trunk of appellant's car. In addition, pieces of a broken glass ornament were found on the body of one of the children, as well as in the trunk of appellant's car and in the bedroom closet area where the murders took place.
On July 29, 1981, three days after the murders occurred, appellant issued a tearful statement to police in which, although he did not confess to the killings, he admitted being at the crime scene at 6:00 p.m. on the day of the murders. He stated that, at 6:00 p.m. that day, the bodies of the children were no longer present in the house. That statement was consistent with other evidence indicating that appellant had disposed of the bodies around 4:45 p.m. that day. Appellant's statement also indicated that a .12 gauge shotgun was present at the crime scene. The significance of that statement lies in the fact that the shotgun has never been located in the course of the murder investigation, and, further, in that appellant implicated the exact murder weapon, without relying upon the autopsy's determination that a .12 gauge shotgun had in fact been used to commit the crime. Finally, and most significantly, appellant admitted in his statement that he had cleaned up the gruesome murder scene, including the blood, etc., because he believed he would "get in trouble" if he failed to do so.
Appellant has not challenged the sufficiency of the evidence as to the verdict of guilt as to murder of the first degree. However, in 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 1327 (1983), this Court stated that in each death penalty case a determination would be made by this Court as to whether there was sufficient evidence to sustain the conviction for murder of the first degree. This determination is made even in cases where the death sentence is vacated and the case is remanded for resentencing. Commonwealth v. Frederick, 508 Pa. 527, 532 n. 1, 498 A.2d 1322, 1324 n. 1 (1985). In the instant case, the evidence of appellant's guilt is so strong as to leave no question that appellant's guilt has been established beyond a reasonable doubt. Indeed, the conviction is supported by a trail of physical evidence linking appellant to the murders, testimony linking appellant to the scene of the crime and to the scene where the victims' bodies were dumped, and by appellant's own incriminating statement.
Appellant challenges the validity of his conviction on grounds the trial court allegedly erred in permitting prospective jury members to be "death qualified." During the jury selection process, the prosecution challenged for cause a number of prospective jurors who stated their belief that they could not vote for the death penalty in this case under any circumstances. Exclusion of those jurors from the panel, appellant argues, resulted in the selected jury being conviction prone, in violation of Sixth and Fourteenth Amendment rights to an impartial jury selected from a representative cross-section of the community. We find no merit in this contention, for this Court has repeatedly held that the "death qualification" process is consistent with constitutional trial guarantees. E.g., Commonwealth v. Smith, 511 Pa. 343, 351, 513 A.2d 1371, 1375 (1986). See also Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).
Having concluded that appellant's conviction for murder of the first degree should be sustained, we now turn to the
question of whether the death penalty selected by the jurors can be upheld. At the sentencing hearing conducted in this case, the jurors found to be present two of the statutory aggravating circumstances, which, the jurors concluded, outweighed any mitigating circumstances. Under such circumstances, a sentence of death is required. 42 Pa.C.S.A. § 9711(c)(1)(iv). The aggravating circumstances were that appellant "committed a killing while in the perpetration of a felony," 42 Pa.C.S.A. § 9711(d)(6), and that appellant "has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable . . .," 42 Pa.C.S.A. § 9711(d)(10). The first aggravating circumstance reflected the jury's finding that the instant murders occurred in the course of a kidnapping, while the second aggravating circumstance reflected the fact that appellant was found guilty in the present case of having committed more than one murder. The jury did not specify which mitigating circumstances were considered, but evidence had been presented as to appellant's age, mental capacity, etc. Under the provisions of 42 Pa.C.S.A. § 9711(h)(3)(ii), this Court must affirm a sentence of death unless we find that "the evidence fails to support the finding of an aggravating circumstance specified in subsection (d)."
Appellant contends that the evidence was insufficient to support the verdict of guilt as to kidnapping, and, thus, that one of the statutory aggravating circumstances found by the jury was without proper basis. We agree. The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 303, 489 A.2d 1340, 1342 (1985). Upon a review of the record in the instant case, it is apparent that the elements of the crime of kidnapping are
not established beyond reasonable doubt, and that evidence relevant to the kidnapping charge is, at best, of a speculative nature.
To sustain a conviction for kidnapping, there must be proof that the victim has been confined for a substantial period in a place of isolation or that the victim has been removed a substantial distance from his original location. 18 Pa.C.S.A. § 2901(a). In addition, it must be shown that such confinement or removal was accomplished by force, threat or deception, or, in the case of a victim under the age of fourteen years, without the consent of a parent or guardian. 18 Pa.C.S.A. § 2901(b).
The primary evidence presented by the Commonwealth relative to the kidnapping charge was the testimony of Mrs. Diane Ziemba. Mrs. Ziemba testified that she last saw her two children, on the day of the murders, when she watched from her apartment window as her children, accompanied by appellant, entered a nearby unfinished house owned by appellant's family. The Commonwealth argues that, because there was evidence the children were subsequently murdered in a bedroom closet area of that house, the children might have been confined there while being subjected to terrorizing acts by the appellant. The period of alleged confinement consists of some portion of the time span between 4:00 p.m., when the children were seen entering the house with appellant, and 4:45 p.m., when appellant was seen at the strip mining area where the children's bodies were later found to have been dumped.
The record, however, is devoid of evidence that the children were in fact confined or terrorized before they were murdered. The mere fact that the murders occurred in a bedroom closet area is not, without more, proof that confinement had occurred. It is not beyond the realm of common experience that children frequently play in or explore neighboring houses, including areas such as bedrooms and closets, similar to those involved in the present case. This is particularly so, when, as in this case, they are accompanied in the house by one of the homeowner's children.
Murder and kidnapping are separate offenses, and proof of one does not in itself provide proof of the other. Further, the mere possibility that the children might have been subjected to the alleged treatment is not sufficient to support the conclusion, beyond reasonable doubt, that such treatment in fact occurred.
Similarly, there is a lack of evidence that, in going with the children to his neighboring unfinished house, appellant removed the children a substantial distance from the backyard area behind Mrs. Ziemba's residence where the children had until then been playing. Nor is it established, beyond reasonable doubt, that any such movement of the children was accomplished by force, threat, deception, or without parental consent. The distance between the backyard play area and appellant's house was not great, for Mrs. Ziemba testified that the play area was immediately adjacent to the property owned by appellant's family. Mrs. Ziemba testified that she had never expressly given the children permission to enter the unfinished house, but she recalled that her children did nevertheless previously enter that house for brief periods when they were playing with children from appellant's family. She also testified that her children played around the property owned by appellant's family, and, further, that appellant was not a stranger to the Ziembas, for he had on numerous occasions been a visitor to the Ziemba residence, where he consumed snack foods, watched TV, engaged in card games, and played with the Ziemba children.
The last time Mrs. Ziemba saw her children, her son Christopher was entering the unfinished house in question and her daughter Cheryl was a few feet behind him, and, immediately behind Cheryl was appellant. Appellant had his hand on Cheryl's back in an apparently innocuous manner. Mrs. Ziemba testified as follows regarding the manner in which appellant was using his hand: "There was nothing threatening or pushing in it. Like she didn't stumble or anything. She was just walking. It was just like he was guiding her." Mrs. Ziemba testified that the sight of her
children entering the unfinished house did not cause her any particular concern or anxiety, and that she did not object to appellant's taking the children into the house, for the weather had been rainy that day and it appeared that appellant was merely taking the children in out of the rain. For example, Mrs. Ziemba stated, "There was nothing unusual about it, nothing suspicious or anything. I just thought he was taking them in out of the rain for a little while because it had been drizzling on and off all day."
We believe this testimony provides an inadequate basis to support the jury's finding that the instant murders were committed during the perpetration of a felony, to wit, kidnapping, in that elements such as confinement, removal, force, threat, deception, and lack of parental consent are not established to a degree that is more than speculative, at best. Inasmuch as one of the aggravating circumstances relied upon by the jury in setting the sentence at death is not, therefore, supported by the evidence, we are required under the sentencing statute to vacate the sentence of death and remand to the Court of Common Pleas for appellant to be sentenced to life imprisonment. See, Commonwealth v. Holcomb, 508 Pa. 425, 458-459, 498 A.2d 833, 850 (1985) (plurality opinion). This is not a case where a jury expressly found that no mitigating circumstances were present, such that, upon declaring invalid one of multiple aggravating circumstances found by the jury, this Court could nevertheless affirm the death sentence on grounds that the death penalty is required so long as there remains at least one valid aggravating circumstance. See Commonwealth v. Buehl, 510 Pa. 363, 390, 508 A.2d 1167, 1181 (1986). Further, because the instant convictions upon charges of kidnapping were not adequately supported by the evidence, the sentences imposed with respect thereto must be reversed.
It has been argued that the instant case presents a question as to the propriety, from a constitutional perspective, of imposing the death penalty upon children. Due to our determination, however, that a remand for imposition of
a sentence of life imprisonment is required in this case, we need not address at this time the issue of the constitutionality of the execution of children.
The convictions as to the two counts of murder of the first degree are affirmed, the sentence of death is vacated, and the case is remanded to the Court of Common Pleas of Lackawanna County for appellant to be sentenced to life imprisonment. The convictions as to the two counts of kidnapping are reversed, and the sentences imposed with respect thereto are vacated.
The convictions as to the two counts of murder of the first degree are affirmed, the sentence of death is vacated, and the case is remanded to the Court of Common Pleas of Lackawanna County for appellant to be sentenced to life imprisonment. The convictions as to the two counts of ...