Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section June Term, 1984, Nos. 674-676, entered on April 2, 1986.
Charles P. Mirarchi, III, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Unit, Alan Sacks, Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
A jury convicted the appellant, Willie Sneed, of murder in the first degree*fn1 and possession of an instrument of crime*fn2 for the shooting death of Calvin Hawkins. A sentencing hearing was then conducted in accordance with Section 9711 of the Sentencing Code.*fn3 After further deliberation, the jury determined the appellant be sentenced to death. Post-verdict motions were denied and the appellant was formally sentenced to death, plus a concurrent term of two and one-half to five years imprisonment for the weapons offense.
The appellant pursued a direct appeal to this Court from the judgment of sentence. 42 Pa.C.S. §§ 722(4); 9711(h)(1). He raises several issues which we will address after first examining the sufficiency of the evidence.
I. SUFFICIENCY OF THE EVIDENCE
The appellant does not directly challenge the sufficiency of the evidence supporting his murder conviction. Nevertheless, it is the practice of this Court in death penalty cases to review the sufficiency of the evidence regardless of whether the appellant contests the issue. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27, 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). The standard to be applied in reviewing the sufficiency of the evidence is
whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). The evidence presented at trial, together with all reasonable inferences in favor of the Commonwealth, discloses the following.
On October 13, 1980, appellant went to a "shooting gallery" in Philadelphia to obtain and "shoot" drugs. Before the night passed, there was to be a shooting of more than drugs. At the "gallery" there were no drugs at hand. "Boobie" Liverman, a friend of the appellant, told him where drugs were available. "Signman" Henderson overheard and offered to take appellant to the pusher. Appellant and Henderson went to the pusher's house, but he was not at home. Sitting on the front steps of the pusher's house was a stranger, who when told they were in the market for cocaine, offered some. The drugs were, however, a distance away, and the stranger offered a ride in a parked, white Lincoln Continental; the type of a luxury car whose shining chrome so often reflects the grim graffittied streets and haunted faces of its victims.
In the car were two other strangers to appellant and his friend Henderson. They all got in and drove to another section of the city.*fn4 They stopped at a bar and appellant's friend Henderson got out of the car and waited while appellant and the other strangers went for the drugs. They never returned for Henderson, and he took a cab home. After awhile appellant came to Henderson's house and told Henderson, who would later tell the jury, that he had been swindled by the three strangers who sold him aspirin for cocaine and would not return his money. The three strangers who would not return his money drove appellant back to
the "gallery". When they did appellant snatched the keys from the Lincoln, ran into the gallery, and got his gun. Rather than return his money the three men, abandoning the car, ran. Appellant chased one Calvin Hawkins, and shot him three (3) times. Hawkins took cover behind a parked car. Then, as appellant told Henderson, and Henderson told the jury,
I [Appellant] jumped on top of the car and the guy looked up at me [Appellant] and said, "Damn, you shot me twice; ain't that enough?"
I [Appellant] shot him . . . in the head point blank and his head hit the ground.
After furnishing his account of the shooting, the appellant spent the rest of the night at Henderson's home. Henderson buried Sneed's weapon in his backyard for safekeeping.*fn6 The appellant left in the morning after Henderson returned his revolver.
We are satisfied that the evidence is sufficient to sustain the jury's verdict of guilt on the charge of murder in the first degree.
II. UNDUE DELAY BETWEEN THE DATE THE CRIME OCCURRED AND THE DATE OF ARREST.
Calvin Hawkins was killed in the early morning hours of October 14, 1980. An arrest warrant for the appellant was not obtained until January 13, 1984. The appellant asserts this delay in excess of three years denied him due process
of law in that he was prevented from eliciting the testimony of Matthew Barbara and David Gratham*fn7 as to the identity of the actual killer.
When a defendant argues undue delay in the filing of charges, proof of prejudice is a prerequisite to consideration of whether there has been a denial of due process. Commonwealth v. Colson, 507 Pa. 440, 452, 490 A.2d 811, 817 (1985), cert. denied, U.S. , 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). The appellant has failed to cross this threshold since he has not shown that the testimony of Barbara and Gratham would have tended to exculpate him.
Even were a defendant to show prejudice due to a delay in his arrest, the adverse effect on his defense is excusable if the delay was a derivation of reasonable investigation by the authorities. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
In the instant case, the police did not accumulate sufficient information to arrest the appellant for Hawkins' murder until late 1983; nor had they known where Sneed was. In fact the appellant returned to his native state of Georgia shortly after Hawkins was murdered. Sneed ran afoul of the law there, and was ultimately ensnared for this crime due to information his cellmates provided to Georgia penitentiary authorities concerning the murder in Pennsylvania. Georgia authorities contacted the Philadelphia police who in turn rejuvenated their investigation. Once armed with this fresh lead, the police and district attorney's office were able to persuade those present at the shooting to testify at Sneed's trial. Therefore, the delay in this instance in fact was caused by the defendant, rather than being voluntary on the part of the law enforcement authorities. Consequently, the appellant's argument based upon undue delay in acquiring an arrest warrant would fail even had he proven prejudice.
The appellant's assertion of prejudice arising from the delay in his arrest is meritless.
III. ASSERTIONS OF ERROR RELATED TO THE GUILT PHASE OF THE APPELLANT'S TRIAL.
The appellant propounds several errors during the guilt phase of his trial which he asserts as bases for this Court to grant him a new trial.
A. THE DEATH QUALIFICATION OF JURORS.
The trial court sustained the Commonwealth's challenge for cause of three prospective jurors based upon their assertions that they could not impose the death penalty in a legally proper case. The appellant argues this ruling was an error which deprived him of a fair and impartial jury from a representative cross section of the community, because death qualified juries are conviction prone.
The United States Supreme Court has addressed and rejected this argument as a matter of federal constitutional law. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). This Court, as a matter of state constitutional law, has shown no inclination to extend greater protection to an accused in this context than is required by the federal Constitution. Commonwealth v. Peterkin, 511 Pa. 299, 320, 513 A.2d 373, 384 (1986), cert. denied, U.S. , 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). Appellant presents no argument which persuades us to alter this course and, therefore, we reject his contention.
B. THE OVERRULING OF DEFENSE COUNSEL'S OBJECTIONS TO THE TESTIMONY OF COMMONWEALTH WITNESSES.
The Commonwealth called to the stand a witness accepted as an expert in the field of fingerprint identification. During direct examination of the witness defense counsel interjected an objection which the trial court overruled.*fn8 The appellant contends that the trial court erred in
its ruling because of the form of the question and the response it elicited. Specifically, the appellant asserts that the prosecutor's question was leading and the witness' answer was inadmissible hearsay because he was testifying on the basis of another technician's report.
However, in this instance it is unnecessary for this Court to resort to the law of evidence beyond designating the purported error harmless.*fn9 In fact, it may have actually been beneficial to the appellant. The overall thrust of this expert's testimony was that Willie Sneed's fingerprints were not found on the White Lincoln. The prosecutor was frustrated in his repeated attempts to prove a negative through this witness, to wit: merely because Sneed's prints were not found on the car does not mean he could not have been in it. Defense counsel successfully objected to this line of questioning. Consequently, this expert's testimony better served the appellant than the Commonwealth.
Defense counsel also made a hearsay objection to a police officer's testimony concerning the content of the radio call which prompted his trip to the scene of the crime. N.T. 3/11/85, 43. This objection was erroneously overruled, argues the appellant.
An out of court statement which is not offered for its truth, but to explain the witness' course of conduct is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980). This particular testimony was merely offered to show how the officer came to be at the
crime scene on that night. This Court has specifically held this type of testimony to be admissible for such a purpose. Id.
C. THE PROSECUTOR'S REFERENCE TO A POLYGRAPH EXAMINATION TAKEN BY A COMMONWEALTH WITNESS.
During redirect examination of Commonwealth witness Charles "Black Charlie" Russell the following exchange occurred:
Q. [BY THE PROSECUTOR]: You didn't flunk a polygraph test after you gave them that statement, did you, sir?