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decided: March 29, 1988.


Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of July Term, 1983, Nos. 1789, 1791 and 1792.


Robert M. Lipshutz, Philadelphia, for appellant.

Ronald Eisenberg, Chief, Appeals Div., Gaele McLaughlin Barthold, Deputy Dist. Atty., Robert Myers, Asst. Dist. Atty., Suzan Willcox, Philadelphia, Robert A. Graci, Chief Deputy Atty. Gen., Harrisburg, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., filed a concurring opinion. Stout, J., did not participate in the consideration or decision of this matter.

Author: Larsen

[ 518 Pa. Page 19]


On February 6, 1985, a jury in the Court of Common Pleas of Philadelphia County found appellant, James Melvin (a.k.a. "Mailbox") Smith, guilty of murder of the first degree, criminal conspiracy and possession of an instrument of crime. These charges stemmed from the shooting death of Davis Kelly on North Twenty-first Street in Philadelphia on June 23, 1979. The following day, February 7, 1985, the

[ 518 Pa. Page 20]

    same jury sentenced appellant to death in a separate sentencing proceeding conducted pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711. Post-verdict motions were denied by the Honorable Eugene Gelfand and, on May 6, 1986, Judge Gelfand formally sentenced appellant to death and to consecutive terms of imprisonment of five to ten years and two and one-half to five years, respectively, for the conspiracy and possession of an instrument of crime convictions (the terms of imprisonment to run concurrently to the death sentence). This direct appeal automatically followed. 42 Pa.C.S.A. § 9711(h)(1); 42 Pa.C.S.A. § 722(4); Pa.R.A.P. Rule 702(b).

The evidence adduced at trial, viewed in the light most favorable to the Commonwealth as the verdict winner, discloses the following. On the evening of June 22, 1979, appellant and Levi Rucker met at Kimberleigh Green's residence in the 6400 block of North Twenty-first Street to plan the killing of Davis Kelly. Davis Kelly was suspected by these conspirators of having killed Michael Green, Ms. Green's brother, several months earlier. The plan was for Ms. Green to lure the victim from 6410 North Twenty-first Street, where he was visiting his young daughter, on the pretext of purchasing a quart of beer for Ms. Green. (Ms. Green was not of legal age to purchase alcoholic beverages at this time.) The victim would purchase the beer at the Tropical Lounge which was just down the street. When the victim left the lounge, Levi Rucker was to lock the door of the lounge behind him, and appellant was to emerge from an adjacent alley and shoot the victim with his gun.

The plan, and the victim, were successfully executed later that night, shortly before midnight. Ms. Green gave the victim two dollars to purchase the beer. He walked to the nearby Tropical Lounge and purchased a quart of beer. He then left the lounge and walked back toward 6410 North Twenty-first Street where Ms. Green waited outside. As the victim approached Ms. Green, appellant emerged from the adjacent alley and shot the victim from behind. The victim fell to the ground and, as he attempted to get to his

[ 518 Pa. Page 21]

    feet, appellant came closer to him and, from about three feet away, pumped three more rounds into him. The three conspirators then fled.

Davis Kelly died shortly thereafter as a result of his wounds which severely damaged most of his internal organs. He had been shot four times, one of the bullets exiting his body (the spent bullet was never recovered) and the other three lodging in and recovered from his body. One of the bullets had been severely distorted by an impact with a hard object which, the Commonwealth's firearms expert testified, demonstrated that the bullet had richocheted, probably off of the sidewalk. The forensic medical evidence corroborated that one of the victim's wounds was caused by a richochet. The remaining two bullets were identified as .32 caliber ammunition.

Betty Harris was present at her mother's house at 6410 North Twenty-first Street when Kimberleigh Green asked the victim to purchase some beer on the night of the shooting. Betty Harris and two friends were on the porch when he returned, and she witnessed the shooting which took place on the sidewalk in front of the house. Ms. Harris had known appellant from the neighborhood for "about ten years." However, because she was fearful of appellant, she did not identify appellant as the shooter until January, 1985 on the eve of trial. Prior to that time, she had consistently told police investigators that she was unable to identify the shooter.

On June 25, 1979, two days after the murder of Davis Kelly, Philadelphia Police Officer Ann O'Donnell responded to a police radio broadcast of a man with a shotgun who was observed outside a bar in North Philadelphia. When she arrived at the scene, she saw a large number of men outside the bar, one of whom had an object which appeared to be a handgun visibly sticking out of his waistband. That man was appellant. Officer O'Donnell patted appellant down, and confiscated from him a .32 caliber "Llama" semi-automatic pistol and a bag containing approximately 25 rounds of .32 caliber ammunition. Appellant was arrested

[ 518 Pa. Page 22]

    and subsequently charged with receiving stolen property (the gun had been reported stolen), carrying firearms without a license,*fn1 and carrying firearms on public streets or public property in Philadelphia.*fn2 He was subsequently acquitted of those charges. Ballistics examinations and analysis established that the lethal bullets which killed Davis Kelly were fired from the .32 caliber pistol in appellant's possession on June 25, 1979.

Appellant was questioned about the homicide following his June 25th arrest, and he rendered an exculpatory statement. Appellant was then released from custody, as the police investigators did not believe there was sufficient evidence to hold him for murder at that time.

In October, 1982, Kimberleigh Green, in custody on automobile theft charges, admitted her involvement in the murder of Davis Kelly to police, and implicated Levi Rucker and appellant. She was arrested and charged with murder, and on April 28, 1983, she pled guilty to conspiracy and murder of the third degree, and agreed to testify against Rucker and appellant. The two men were then arrested: appellant on May 3, 1983 and Rucker on May 24, 1983.

The two were to be tried together and a joint trial was scheduled before the Honorable Lisa A. Richette. Numerous pretrial motions, including motions to dismiss and to suppress, were presented to and argued before Judge Richette on November 28-29, 1983, most of which were denied. After a jury was selected, but before testimony was taken, Levi Rucker, who had given an inculpatory statement to police implicating himself and appellant, decided to plead guilty to conspiracy and murder of the third degree, and he agreed to testify against appellant. After co-defendant Rucker pled guilty, Judge Richette recused herself from appellant's trial, declared a mistrial, and the case was assigned to Judge Gelfand.

[ 518 Pa. Page 23]

Additional pretrial motions were heard and denied, and voir dire of prospective jurors commenced on January 17, 1985. At trial, the Commonwealth presented, inter alia, the testimony of appellant's co-defendants, Green and Rucker, and of eyewitness Betty Harris, in addition to ballistics, forensic and police investigatory evidence. The defense consisted of attempts to discredit and impeach the testimony of the eyewitnesses and to show the co-defendants to be the sole perpetrators of the conspiracy and murder. Defense witnesses included appellant's sister, Barbara Smith, who testified that appellant was not at Kimberleigh Green's house on the night of the shooting, and one Darnell Holland, who testified that he was at the Tropical Lounge and witnessed the shooting and that appellant was not there and did not participate. Additionally, appellant took the stand and denied shooting Davis Kelly. Appellant explained that he purchased the .32 caliber pistol and ammunition from "two guys" at the bar in North Philadelphia for $55.00 the night of his arrest on June 25, 1979. He did not know who the "two guys" were.

On February 6, 1985, the jury returned a verdict of guilty on all counts, murder of the first degree, criminal conspiracy and possession of an instrument of a crime. The following day, additional evidence and argument were presented at the separate sentencing proceeding. After the jury was charged and deliberated, it returned a sentence of death on the murder conviction. The jury found that the Commonwealth had proven the existence of two aggravating circumstances, namely that in the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense, 42 Pa.C.S.A. § 9711(d)(7), and significant history of felony convictions involving the use of violence, 42 Pa.C.S.A. § 9711(d)(9), and it found no mitigating circumstances. Accordingly, the sentence of death was mandated by statute. 42 Pa.C.S.A. § 9711(c)(1)(iv) ("the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance . . . and no mitigating circumstance . . . .").

[ 518 Pa. Page 24]

Our standard of review in cases of murder of the first degree in which a verdict of death has been rendered is established by the Sentencing Code, 42 Pa.C.S.A. § 9711(h), which provides:

(2) 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 imposition of a life imprisonment sentence.

(3) The Supreme Court shall affirm the sentence of death unless it determines that:

(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;

(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or

(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.

Applying that standard, we now affirm appellant's convictions, his sentence of death and his sentences on the non-homicide convictions.

Initially, we hold that the evidence was clearly sufficient, beyond a reasonable doubt, to sustain the jury's determination that appellant was guilty of murder of the first degree, criminal conspiracy and possession of an instrument of crime.*fn3

Appellant has raised, in a scattergun approach, some thirty-seven allegations of pretrial, trial, sentencing hearing and post-trial proceedings errors which, he asserts, require that we dismiss the convictions and criminal charges

[ 518 Pa. Page 25]

    against him, reverse his convictions and award him a new trial, or vacate his sentence of death. We will address his numerous assignments of error seriatim (in the order chosen by this Court for convenience of discussion).

Allegations of Pretrial Errors

Appellant first argues that the lower court erred in failing to grant his motion to dismiss the charges against him because his previous acquittal on charges of possessing the murder weapon on June 25, 1979 should have, by application of principles of collateral estoppel, precluded the Commonwealth under the circumstances from prosecuting him for the shooting death of Davis Kelly. Relying on this Court's plurality decision in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) and on 18 Pa.C.S.A. § 110, "When prosecution barred by former prosecution for different offense," appellant asserts that the issue of whether he possessed the firearm on June 25, 1979, which was the murder weapon, was also an essential issue in the subsequent prosecution for murder, conspiracy and possession of an instrument of crime, and hence his previous acquittal on the possession charges requires his discharge.

While Hude was a plurality opinion (per Nix, J.), its analysis of collateral estoppel principles in criminal prosecutions has since been accepted by a majority of the members of this Court. See, e.g., Commonwealth v. Brown 503 Pa. 514, 517-19, 469 A.2d 1371 (1983) and Commonwealth v. Lagana, 510 Pa. 477, 480-81, 509 A.2d 863 (1986). Hude interpreted 18 Pa.C.S.A. § 110 in light of federal constitutional double jeopardy protections which were held to encompass principles of collateral estoppel as set forth by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel is "issue preclusion" which does not automatically bar subsequent prosecution but does bar redetermination in a second prosecution of those issues necessarily determined between the parties in a first proceeding which has become a final judgment. Commonwealth v. Hude, supra, 492 Pa. at 612, 617, 425 A.2d at 319, 322. It is a principle to be

[ 518 Pa. Page 26]

    applied with "realism and rationality", not "with the hypertechnical and archaic approach of a 19th century pleading book." Ashe v. Swenson, supra 397 U.S. at 444, 90 S.Ct. at 1194.

We stated in Hude:

The approach set forth by the Ashe Court in determining the applicability of the principle of collateral estoppel where a previous judgment of acquittal was based upon a general verdict, is that we must:

In determining "whether a rational jury could have grounded its verdict upon an issue other than that which" is sought to be foreclosed we are cautioned that "the inquiry 'must be set in a practical frame and viewed with any eye to all the circumstances.'" Id. at 444, 90 S.Ct. at 1194.

492 Pa. at 612, 425 A.2d at 319-20. In making this determination, we are guided by the federal decisions which employ a three-step approach in applying Ashe:

(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was 'litigated' in the first case; and (3) an examination of the record of ...

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