Appeal from the Judgments of Sentence entered on March 31, 1986, in the Court of Common Pleas of Allegheny County, Criminal Division at Nos. CC 8501202, 8503373.
Paul R. Gettleman, Zelienople (court-appointed), for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Christopher Conrad, Asst. Dist. Atty., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., filed a concurring and dissenting opinion. Larsen and McDermott, JJ., filed a dissenting opinion.
On January 15, 1985, the bodies of Sara and Boykin Gibson, an elderly couple in their 80's, were discovered in their Pittsburgh home. The Gibsons were found seated in chairs facing together, separated by a distance of approximately seven feet, their arms bound to the chairs with clothesline. Their throats had been slashed, and they had been stabbed. The house was ransacked. The Appellant, Christopher Caldwell, was charged with two counts each of homicide and robbery, and one count of burglary and of conspiracy. After the selection of a jury, the Appellant plead guilty generally to all of the charges. Determination of the degree of the homicides was left to the trial judge, who found the Appellant guilty of first degree murder as to each homicide. A sentence of death was returned by the jury on each of the counts. Consecutive sentences of imprisonment of 10 to 20 years on the burglary and robbery counts and of 5 to 10 years on the conspiracy charge were imposed. This direct appeal was filed, and we now vacate the judgments of the death sentences.
The Commonwealth summarized the following evidence which would have been presented had the Appellant proceeded to trial before the jury. The witnesses who would have testified included three teenagers who were also involved in the murders -- Alton Smith, John Morris, and Eric Anderson --, homicide detectives, and medical witnesses. [N.T., January 11, 1986, pp. 39-47]. The prosecutor noted that the witnesses would testify that the Appellant met with Smith, Morris, and Anderson on the day before the murders were committed, asked them if they wanted to make money, and informed them that he knew of an old couple who had money. The four of them then went to the home of Allan Williams to obtain a syringe which the Appellant had found and given to Williams. In a statement given to the police subsequent to his arrest, the Appellant indicated that the syringe was to be used to inject air into the victims' veins in an attempt to make it appear they had
suffered heart attacks. Williams was not at home, and the four proceeded next to the Gibsons' house. They tried to enter through the front door, but it was locked. The side window was tried, but it was covered with bars. At this point, the teenagers left and split up. There was an agreement between the Appellant and Smith to meet the next day.
Smith returned to the Appellant's house the next day as planned. Joined by Morris and Anderson, they again discussed the possibility of obtaining money from the Gibsons. Anderson produced a crowbar, and the Appellant had a chef-type knife and clothesline, which he concealed in his clothing. Returning to Williams's house for the syringe, they were told it had been lost. Accompanied by Williams, they went to a garage located on an abandoned piece of property near the Gibson residence. It was decided that Morris would go to the victims' house, which he did. Morris was asked to run an errand for Mrs. Gibson. The others went back to Williams's house where they plotted with Morris. As planned, Morris left the Gibsons' door open, and they followed him into the house.
As they entered the living room, they grabbed the Gibsons. Mrs. Gibson was knocked to the floor as she tried to grab a hammer to protect herself. Mr. Gibson also tried vainly to reach a weapon. The Gibsons were then tied to chairs with the clothesline. Morris, Smith, and Anderson searched the second floor rooms while Williams and the Appellant searched the living room. When a safe was discovered, the Appellant asked Mr. Gibson for the combination. Mr. Gibson did not have it. At Williams's urging, Smith made continuous trips up and down the stairs, checking the door to insure that no one was coming. During one of the trips, Smith noticed that the Appellant had pulled out his knife. He saw the Appellant push back Mrs. Gibson's head and cut her neck with a sawing motion. Mr. Gibson cried. The Appellant walked towards Mr. Gibson and cut his throat. Smith called for Morris and Anderson, saying it was time to get out of there. They left, followed by
Williams. The Appellant returned to where Mrs. Gibson was seated and stabbed her once in the chest. He then repeated his act, stabbing Mr. Gibson twice in the heart. The Gibsons died as a result of those wounds.
The five youths returned to Williams's home with various personal possessions of the Gibsons. They agreed to meet at the Appellant's house and went there by two different routes. The Gibsons' property was divided among them, with each receiving approximately $160 -- $170 in cash. The Appellant cleaned his knife and placed it back in its holder.
Aware that a warrant had been issued for his arrest, the Appellant turned himself in the following day. He confessed to the murders. A taped recording was made of his confession. A subsequent search of his house uncovered miscellaneous items, such as coin and bill holders, tire guages, and coins, which had been taken from the Gibsons.
After conducting a guilty plea colloquy with the Appellant and presentation of the Commonwealth's evidentiary summary, the trial judge accepted the plea and determined that the Appellant was guilty of first degree murder on both counts. A separate sentencing hearing was conducted before the jury. The jury returned the death penalty based upon its finding of four aggravating circumstances which outweighed any mitigating circumstances. The aggravating circumstances found by the jury were: (1) the victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses; (2) the defendant committed a killing while in the perpetration of a felony; (3) the offense was committed by means of torture; and (4) the defendant 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. § 9711(d)(5), (6), (8), (10). The jury did not enumerate the specific mitigating circumstances which were found, but defense counsel had argued against a death sentence because the Appellant was 18 years old at the time the crimes
were committed and had no significant history of felony convictions. Defense counsel had contended also that the Appellant could not appreciate the criminality of his conduct or conform his conduct to the requirements of law and introduced testimony of the Appellant's character, remorsefulness, and religious involvement.
I. SUFFICIENCY OF THE EVIDENCE
Although the Appellant does not challenge the sufficiency of the evidence, we will conduct an independent review of the record to determine the sufficiency of the evidence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh. den., 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). We find that the evidence establishes beyond a reasonable doubt that the killings committed by the Appellant were willful, deliberate and premeditated and that the convictions of murder of the first degree are sustained by sufficient evidence.
The Appellant asserts that the jury's findings of two of the aggravating circumstances were not supported by the evidence. Specifically, the Appellant challenges the jury's determination: (1) that a victim was a prosecution witness to a murder or felony killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving the offense, and (2) that the offense was committed by means of torture. Upon examination of the record, we conclude that there is insufficient evidence to establish these two aggravating circumstances beyond a reasonable doubt.
The Commonwealth argues that the jury properly found that the prosecution witness had been killed to prevent his testimony against a defendant. It does not contend that anyone witnessing a crime is a prosecution witness within the scope of the aggravating circumstance, but argues that the burden of establishing the aggravating circumstance was met by showing that the Appellant stated in
his confession that he had killed the victims because of his concern that they could later identify the five youths.*fn1 We recently rejected this expansive interpretation in Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987). We held therein that in order to sustain a finding of the aggravating circumstance set forth in § 9711(d)(5), evidence must be introduced to establish that the victim was a prosecution witness who was killed to prevent his testimony in a pending grand jury or criminal proceeding. In the instant case, no grand jury or criminal proceeding involving an offense to which either of the victims was a prosecution witness was pending at the time the murders were committed.
We find also that the Commonwealth's evidence failed to support the jury's finding that the offense was committed by means of torture. The Commonwealth argues that the deliberate acts of the Appellant of binding the victims to chairs facing together and slashing Mrs. Gibson's throat in full view of a husband who was unable to aid her, and the fact that death did not result instantaneously, are sufficient to uphold the jury's determination. In order to establish that the offense was committed by means of torture, the Commonwealth must prove that a defendant had a specific intent to inflict unnecessary pain, suffering, or both pain and suffering in addition to the specific intent to kill. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987); Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). Neither the efficacy of the means employed by a defendant to murder his victim nor the immediacy of death is in itself determinative of the question whether the offense was committed by means of torture. Although the evidence relied upon by the Commonwealth amply demonstrates the Appellant's specific intent to kill his victims, it is insufficient to establish that the Appellant specifically intended to cause pain and suffering or was not satisfied with the killings alone.
Having determined that the evidence failed to support the jury's findings of two of the four aggravating circumstances, the question then is the appropriate remedy in this case. Citing 42 Pa.C.S. § 706, the Commonwealth asserts that if the Appellant were to prevail on his challenge to the aggravating circumstances, the matter should be remanded for a new sentencing hearing. Section 706 provides that
An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.
This argument must fail, however, for as we found in Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987), our authority to review death sentences is limited by 42 Pa.C.S. § 9711(h)(2) which states that
In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the ...