Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Information Nos. 2012, 2013, 2015, 2021, 2022, January Session, 1980.
Peter F. Rogers, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Alan Sacks, Robert A. Graci, Philadelphia, Chief Deputy Atty. Gen., Harrisburg, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.
On June 28, 1985, a jury of the Court of Common Pleas of Philadelphia County found appellant, Robert (a/k/a "Sugar Bear") Lark, guilty of murder of the first degree for the shooting death of Mr. Tae Bong Cho, possession of an instrument of crime, terroristic threats and kidnapping.
The following day, that same jury sentenced appellant to death after a hearing conducted pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711. Post trial motions were denied by the Honorable John A. Geisz, the presiding judge at trial, and on April 24, 1986, appellant was formally sentenced to death and to various terms of imprisonment on the other convictions. 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 introduced at trial, viewed in the light most favorable to the Commonwealth as the verdict winner, discloses the following complicated and unique sequence of events.
The three separate criminal incidents for which appellant was tried all shared a common denominator, the robbery of Mr. Tae Bong Cho of over $4,000.00 cash near his home in North Philadelphia on December 28, 1978. The robbery was accomplished by appellant placing a gun (which resembled a .45 caliber pistol but turned out to be a replica pellet gun) against the head of Mr. Cho's baby son and demanding his money. After taking the money, a check and other items, appellant fled in a red Cadillac.
Responding to a police radio broadcast, appellant was apprehended in a red Cadillac within minutes of this robbery in the possession of $4,255.00 in currency, a "BB repeater pistol," a change purse with the names of Mr. Cho and Sue Cho, and other items. Appellant was taken to the Northwest Detectives police station where he encountered Mr. Cho, in the process of rendering a police report, who immediately identified appellant as the man who took his money. Appellant was then charged with the robbery of Tae Bong Cho.
On February 22, 1979, Tae Bong Cho was assassinated while working behind the counter of his take-out food store at 3706 North Broad Street in North Philadelphia by one shot to his head at close range. The assassin wore a ski mask or stocking over his head, but several of the witnesses present in the store described his height, weight and clothing,
and stated that he had placed a gun in the back waistband of his pants as he exited the store. Mr. Cho was scheduled to appear the next day, February 23, 1979, as the principal witness for the Commonwealth at appellant's preliminary hearing on the robbery charges.
Prior to the shooting of Tae Bong Cho, Commonwealth witness James Spencer spoke with appellant who was out on bail, and asked him what he was going to do about the robbery charges; appellant replied "he was going to take care of him . . . he was going to kill him before he went to court so he wouldn't be able to testify against him." Notes of Testimony (N.T.) Trial June 21, 1985 at 110 (testimony of James Spencer on recall, redirect examination.*fn1) Appellant also, on numerous occasions from the day following the shooting until shortly before his arrest in January, 1980, bragged to several persons about killing "the Korean." For example, appellant bragged to Commonwealth witness Benjamin Smith that he killed "the Korean" because he was a witness against him and said "from now on when there's witnesses in a case against him, he's going to kill him." N.T. Trial, June 13, 1985 at 15; see also: N.T. Trial June 17, 1985 at 10 (transcribed statement of Nathaniel Smith, deceased at time of trial); N.T. Trial June 21, 1985 at 110-11 (testimony of James Spencer); N.T. Trial, June 14, 1985 at 100-01 (out-of-court declaration of Michael Johnson that appellant suspected him of stealing jewelry from appellant's girlfriend and told Mr. Johnson he "had better get his stuff
back to him or he would take care of [Johnson] like he had done the Korean on Broad and Erie about six months ago.")
The prosecution against appellant on the robbery charges continued despite the murder of the Commonwealth's principle witness. Assistant District Attorney Charles Cunningham was specially appointed to handle the prosecution, and after several continuances, a preliminary hearing was held on June 13, 1979. In the hallway outside the court room prior to the hearing, appellant approached Mr. Cunningham in a manner described as "shadow boxing" until he was directly across the hallway from Mr. Cunningham where he stood looking at Cunningham, pounding his fist into his other palm about fifteen or twenty times. The preliminary hearing was then held, after which the court held the case for trial. At this point, appellant turned his back to his lawyer, leaned toward Mr. Cunningham and said two or three unintelligible words and "you m___ f___" to Cunningham.
About one week later, a jury trial commenced on the robbery charges. At the conclusion of the Commonwealth's case, Mr. Cunningham rested, and a recess was called for lunch break. When proceedings resumed, appellant did not return and could not be located until his arrest on January 9, 1980. Trial continued in appellant's absence, and he was found guilty of robbery. While a fugitive from justice, appellant continued his pattern of threats and intimidation. On November 26, 1979, Mr. Cunningham, who was coordinating the investigation of the Cho murder and the search for appellant, received a telephone call from a man identifying himself as Robert Lark, who said he wanted to congratulate the prosecutor on a job well done, and that "You're a real aggressive guy and so am I and I want you to know that I will not let bygones be bygones." N.T. Trial, June 19, 1985 at 108. He also stated "I'm not going to let them take me." Id. After this telephone call, Mr. Cunningham and his family received around-the-clock police protection.
On November 27, 1979, appellant happened to run into Harry Tomlin, a recently retired City of Philadelphia police
officer who knew appellant. Officer Tomlin stated that he saw appellant at a Wendy's restaurant where appellant told him he had called Mr. Cunningham and he was "going to get him." Appellant then opened up his coat to show Mr. Tomlin a .45 caliber gun in a shoulder holster.
On December 27, 1979, Detective Frank Miller took a telephone call from a caller identifying himself as "Sugar Bear" (which is appellant's nickname). This caller asked for two detectives who were assigned to locate appellant, and he told Detective Miller that the detectives had better "watch their behinds" because he knew their cars and was following them and he had a "big surprise" for them. N.T. Trial, June 21, 1985 at 89.
Finally, on January 9, 1980, at about 2:10 p.m., Officer Barry Wilson spotted appellant in a yellow Cadillac and began to follow him. A highspeed chase ensued, and Officer Wilson lost visual contact with appellant, but he located the Cadillac parked in a parking lot. The officer then saw appellant running away, carrying a shotgun and a blue bag. Appellant broke into the home of Ms. Sheila Morris at 1327 North McFerran Street where he took Ms. Morris and her two children hostage. Appellant was also carrying a handgun in a holster.
Police Inspector William McDonough was in charge of the hostage situation, and communicated with a male in the house who said, inter alia: "This is Lark. . . . I'll kill you all like that chinkee m___ f___ . . . I'll shoot you in the legs. . . ." N.T. Trial, June 20, 1985 at 61-62, and 73. Appellant called his lawyer who spoke with him and, after some consultation, appellant left the house and surrendered after his lawyer arrived. Neither Ms. Morris nor her two children had been harmed during their ordeal which lasted approximately two hours.
In the blue bag in appellant's possession were certain papers, including a telephone and address book with the notation "Cunningham 333-0988, 3201 Magee Avenue". Assistant District Attorney Cunningham's residence telephone number was unlisted; the address, 3201 Magee Avenue,
was Cunningham's parent's address and the number 333-0988 was Cunningham's grandfather's telephone number listed in the directory at that address.
Mr. Cunningham had one more encounter with appellant. At appellant's sentencing hearing on an unrelated robbery conviction in July, 1980, at which Mr. Cunningham was present, appellant formed his hand like a gun, pointed at Cunningham as if firing a gun, and said "point blank" to him.
Following his arrest on January 9, 1980, appellant was charged with numerous offenses stemming from three separate and distinct criminal episodes, including: the murder of Tae Bong Cho on February 22, 1979; terroristic threats against Assistant District Attorney Charles Cunningham on November 27, 1979; and kidnapping of Sheila Morris and her two children who were under fourteen years of age on January 9, 1980.
Appellant's first trial on these charges commenced on February 18, 1981 before the Honorable Theordore B. Smith, Jr., and ended in a mistrial on March 4, 1981. In November, 1981, appellant filed a motion for dismissal of charges on grounds of double jeopardy. This motion was denied by Judge Smith on March 30, 1982, which was affirmed by our Superior Court ...