Appeal from the Judgment of Sentence of Death and Imprisonment of the Court of Common Pleas of Philadelphia County at February Term, 1982, Nos. 1620, 1621, 1623, and November Term, 1984, Nos. 2794-2796.
Samuel C. Stretton, West Chester, for appellant.
Ronald Eisenberg, Chief, Appeals Div., Gaele McLaughlin Barthold, Deputy Dist. Atty., Marianne Cox, Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Flaherty, J., files a dissenting opinion in which Zappala, J., joins. McDermott, J., files a dissenting opinion.
Willie Clayton directly appeals as of right*fn1 two death sentences imposed by Philadelphia Common Pleas. Along with his two convictions of first degree murder, appellant was convicted of two counts of robbery and two counts of possession of an instrument of crime. On appeal before this Court, he raises four issues that require full review. First, he contends that the admission of two bullets
and ballistics testimony, without at least a cautionary instruction, was reversible error because the Commonwealth could not show which of the two bullets was fired by appellant. Secondly, he argues that the trial court erred in consolidating the two murder trials. In the third instance, he asserts that his due process rights were violated because the trial court refused to grant a continuance to permit his mother and stepfather to testify at the penalty phase of his trial. Finally, he claims he is entitled to a new trial because the prosecutor made a prejudicial statement to the jury.*fn2
Based on these reasons, appellant concludes that a new trial should be granted.
Upon careful review, we disagree for the reasons set out below. Furthermore, as required by statute, we have made an independent review of the record for sufficiency and proportionality to ensure against arbitrary imposition of the death penalty.*fn3 For that purpose, we have secured and examined the statistical data collected by the Administrative Office of Pennsylvania Courts and determined that the penalty imposed is proportional to that imposed in other cases.*fn4
Because of the nature of the arguments raised by appellant, an initial examination of the facts and procedural history of this case is helpful. The relevant events took place between May 26 and September 14, 1980.
On the evening of May 26, 1980, Earl Grice was found dead in his apartment above the Quill and Scroll Bar he had owned in Center City, Philadelphia. Grice was found lying on the couch. He had died as a result of a hard contact
gunshot wound to the head.*fn5 The bullet had come from a .38 caliber gun. Ballistics tests could not identify the particular gun that fired the distorted bullet removed from Grice's head. Grice's pants pockets had been ripped out and an empty cash box was found open on the bedroom floor with receipts tossed about. A pillow with gunshot residue was also found in the apartment. Apparently, it had been used to muzzle the noise of the shot.
Evidence produced at trial showed that Grice was a known drug dealer. Evidence also showed that appellant went to see Grice at his bar on the evening of May 26, 1980, and at about 7:30 p.m. both went upstairs into Grice's apartment. Grice had been seen flashing around a large roll of money earlier that evening.
On July 30, 1980, Jack Summers was found in his apartment above the Graduate Bar, a few blocks from the Quill and Scroll. Summers had died as a result of a gunshot wound to the head fired at close range. The bullet was from a .38 caliber gun, and could have been from the same gun which killed Grice. Both of Summer's pockets had been pulled inside out.
At trial, it was shown that appellant had frequently visited Summers at his apartment. Summers was a known drug dealer.
On August 26, 1980, the body of Terrance Dougherty was found lying face down on the floor of his bedroom with a pillow over his head. Dougherty had also died from a hard contact shot to the head from the same gun that had killed Summers. This murder was in the same general area as the other two.
An earlier trial had revealed that Dougherty was also a known drug dealer, and that appellant knew him.*fn6
On September 14, 1980, according to the testimony of Thomas Felder, appellant and an unidentified man came to Felder's apartment ostensibly to buy cocaine. Felder stated that he was not selling drugs at that time, but offered to put them in contact with someone who could. They left Felder's apartment to go to a phone booth. After the call was made, appellant accompanied Felder back to his apartment saying that he had left something behind. Appellant came out of Felder's bathroom carrying a .38 caliber gun and forced Felder to lie down on the bed. He took money from Felder's pants pockets and a gold chain from his neck. He and his companion then bound Felder's arms and hands. Appellant placed a pillow over his head. He put the gun to the pillow and fired. It did not go off. He fired again. This time he shot Felder in the back. Felder held his breath, pretended that he was dead, and waited for appellant to leave.
When appellant shot him in the back, Felder was already carrying a bullet in the stomach at the hands of a Wendell Lewis. At the hospital he had both bullets removed. Through a mix-up no one identified which of the two bullets had been removed from the back. Ballistics experts were able to show that one of the two bullets was fired from the same gun that had killed Summers and Dougherty and could have killed Grice.
Appellant was originally tried and acquitted for the murder of Terrance Dougherty. Before that trial was completed, appellant was also charged with the Grice murder. At a jury trial for that crime in March 1982, appellant was convicted of first degree murder, robbery, and possession of
an instrument of crime. A sentence of death was imposed along with ten to twenty years for the robbery charge and two and one-half years for the weapons offense. On direct appeal to this Court, we overturned the conviction and remanded for a new trial. Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984).
At the first Grice trial, Roy Young, a cellmate, testified that appellant told him he had killed both Grice and Summers so that people would fear him, and he could so increase his influence over the drug traffic in Center City Philadelphia.
On this and other evidence discovered by police, the Commonwealth had charged appellant with both the Grice and Summers murders. After our remand in Grice, these charges were consolidated for trial. In it, a jury found appellant guilty of two counts of murder in the first degree, two counts of robbery and two counts of possession of an instrument of crime. After a penalty hearing, appellant received two death sentences. Post trial motions were denied, and appellant was formally sentenced on February 25, 1986, for the crimes involving Grice and Summers. In addition to the two death sentences, appellant received two consecutive sentences of ten to twenty years for robbing Grice and Summers. A motion to modify and reconsider sentence was denied and this direct appeal taken to us on March 4, 1986.
Appellant challenges the admissibility of the bullets removed from Thomas Felder, and the testimony of a ballistics expert that one of the bullets removed from Felder was fired from the same gun that killed Summers, and could have been fired from the same gun that killed Grice. In the alternative, appellant argues that even if this evidence was admissible, the trial court erred by not instructing the jury that inferences they find which are equally likely from the evidence must be drawn in favor of the defendant. As a matter of abstract deductive logic, appellant's argument
initially seems correct. Concretely, however, it requires inductive consideration of both the factual circumstances surrounding the removal of the bullets from Felder's body and the other relevant evidence produced at trial. We will so consider it.
Felder testified that he was shot twice. In an unrelated earlier incident, Wendell Lewis had shot him in the stomach. On September 14, 1980, appellant shot him in the back. These two bullets were surgically removed at the same time, but not labeled. Hence, it could not be directly determined which bullet was removed from his back. Appellant argues that the bullets and ballistics testimony should not have been admitted because there was no probability that the bullet taken from Felder's back was fired from the gun which killed Summers, but only a 50-50 possibility, a possibility too speculative to place before a jury. Because the Commonwealth could not directly identify which of the two bullets was removed from Felder's back, appellant goes on to argue that the bullets and ballistics testimony were not relevant. This argument fails. While the inability to conclusively identify which of the bullets came from Felder's back affects the weight of this evidence, it does not affect its admissibility. Independent bits of evidence in a trial are not viewed in splendid isolation, as if the probability factor of each was independent of all others. They are part of a web whose interlocking strands weave a snare for the man who would set upon his fellow in secret and with stealth. The pursuit of truth is inductive more often than deductive and the snare is made out when the strands intertwine on each other warp and woof. Such is the case here. Relevance is not to be confused with deductive certainty, nor considered as if each bit of evidence must independently establish probability. Such treatment confuses the issue of relevancy with the problem of establishing a foundation for admission.
Relevant ballistics testimony and weapons are admissible despite an inability to conclusively determine that the introduced weapon was the actual one used in the crime.
equal reason that either Mr. Lewis or he fired the bullet in question in this case. This reliance is misplaced. In Tribble, we considered all of the evidence and determined that two equally conflicting inferences could be inferred. When all of the evidence is examined in the present case, it is clear that two equally conflicting inferences cannot be inferred.
In Commonwealth v. Tribble, supra, the defendant had worked for the Montgomery County Opportunity Board (Board) just two months before a break-in took place on the Board's property. His job required him to come into contact with certain trucks owned by the Board. These trucks were forcibly entered. An investigation revealed several of the defendant's fingerprints. There was no evidence that these ...