Appeal from the Judgment of Sentence dated January 24, 1983, by the Honorable Robert F. Kelly, in the Court of Common Pleas of Delaware County at No. 690 or 1982.
Joseph W. Bullen, III, Spiros E. Angelos, Media, for appellant.
John A. Reilly, Dist. Atty., Barry Gross, Dennis C. McAndrews, Asst. Dist. Attys., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.
On July 1, 1982, after a trial by jury in the Court of Common Pleas of Delaware County, the appellant, Nicholas Yarris, was found guilty of kidnapping, rape, robbery, and murder of the first degree. In connection with the murder conviction, a separate sentencing hearing was held, as required by 42 Pa.C.S. § 9711, and appellant was sentenced to death. This direct appeal ensued.
The incident from which the convictions arose was one in which a thirty-three year old woman was abducted, raped, and stabbed to death while on her way home from work. On December 15, 1981, at approximately 4:00 p.m., Mrs. Linda Craig departed from a shopping mall where she was employed as a salesperson. She did not arrive at home on time, and, shortly thereafter, her husband and another family member began to search for her. Police were soon notified of Mrs. Craig's disappearance, and Mrs. Craig's husband began riding with an officer in a patrol car to further the search efforts. The officer and Mr. Craig found Mrs. Craig's automobile, a light-colored Chrysler Cordoba with a brown landau roof, parked alongside a desolate roadway in Chichester, Pennsylvania. The automobile was not locked, and the keys were still inside. Mrs. Craig's pocketbook was on the passenger side, and the console was covered with traces of blood and hair. The next morning, a passerby found Mrs. Craig's severely beaten body, partially covered by fresh snow, lying in a pool of blood in a nearby church parking lot. The body was partially undressed, and was badly beaten and bruised all over. Six deep stab wounds had been inflicted into vital organs of the chest. Examination of the body and its clothing revealed that the victim had also been raped.
The first pretrial issue is whether the Commonwealth impermissibly withheld from the defense materials which should have been disclosed during discovery. Appellant alleges that portions of various police reports were deleted from the photocopies which were turned over to his counsel, and that the deletions contained material which the Commonwealth was obligated to disclose.
We cannot accept this argument due to appellant's failure to refer to anything in the record which supports his claim that he received anything less than the full disclosure to which he was entitled under Pa.R.Crim.P. 305. At the
commencement of trial, defense counsel made no motion for further discovery or for court inspection of materials allegedly withheld, nor was any such claim raised in post-verdict motions. If, as alleged in appellant's brief, the Commonwealth withheld portions of police reports, it would be for the trial court, in the first instance, to entertain the question whether defense counsel was ineffective for failing to pursue access to the excised material. On the record certified to this Court on appeal, however, there is no support for the allegation that appellant did not receive full discovery under Rule 305.
The second pretrial issue is whether the trial court erred in denying appellant's request for a change of venue, or, alternatively, in denying his request for sequestration of the jury during the trial on the basis of the extensive and allegedly inflammatory publicity surrounding the murder and the trial. Appellant cites Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981) and Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), as authority for his assertion that the pervasive publicity denied him a fair trial and denial of a change of venue constitutes reversible error entitling him to a new trial. We perceive no merit in these contentions.
The authorities cited by appellant involved publicity so greatly exceeding the media coverage of this crime and appellant's trial that we see no basis to apply the holdings in those cases here. The record contains no evidence of extensive, pervasive, or inflammatory reporting which would have required a change of venue or sequestration of the jury; there is thus no justification for the conclusion that the trial judge's rulings on these questions constituted an abuse of discretion.
In Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 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), we established that in each death penalty case this Court would determine
whether there was sufficient evidence to sustain the conviction for murder of the first degree. In the present case, the evidence of appellant's guilt is sufficiently strong as to leave no question that guilt has been established beyond a reasonable doubt. Further, we find no merit in appellant's contention that, if certain items of evidence were excluded from consideration as having been improperly admitted, the weight of the evidence would then be insufficient. As discussed infra, none of the evidence introduced at trial was improperly admitted.
The evidence linking appellant to the crime consisted of, inter alia, the following. Expert testimony established that the rape in question had occurred not more than three hours before the victim's death, and an analysis of body fluids revealed that the perpetrator had type AB or type B secretions. Such individuals constitute thirteen percent of the male population, and appellant was proven to be a type B secretor.
There was also testimony from one of the victim's co-workers, Natalie Barr, that on numerous occasions during the week prior to the crime, appellant had been lingering around the victim's sales booth at the shopping mall. Appellant exhibited suspicious behavior in the vicinity of the booth, repeatedly coming to the booth and asking the prices of the same merchandise over and over again. The victim had mentioned to her husband that a man was stalking her and staring at her near the booth. Also, Franklin Kaminski, a worker at an adjoining sales booth, testified that the victim had pointed out a man who had been staring strangely at her and scaring her, and the worker recognized appellant as being that man. Further, the Commonwealth introduced evidence that the victim bore a significant resemblance to appellant's former girlfriend, who had undergone a tumultuous and physically confrontational breakup with appellant during the week before the crime. An inference was created thereby regarding appellant's motive for focusing attention on the victim and for taking violent actions against her.
Three days after the crime, appellant demonstrated a suspiciously detailed knowledge of the crime when he visited the sales booth where the victim had been employed, mentioned the victim, and stated, "I heard that she was raped." At that time, details of the crime had not been released to the public, and the fact that the victim had been raped was not public knowledge.
In the following months, while appellant was being held in the maximum security section of a prison, awaiting trial on unrelated charges, he made a number of incriminating statements to prison officials and detectives. First, on January 12, 1982, he told Sergeant Murphy, who served as a corrections officer at the prison, and the prison warden that he knew the person responsible for the murder of the saleswoman at the shopping mall. Appellant said that he had taken the person to the mall, and that the person later told him of having murdered the saleswoman. Appellant made similar statements to detectives who were then summoned by the warden. He told detectives that the individual responsible for the crime was his "friend," James Brisbois, and that Brisbois admitted raping and stabbing the victim and abandoning the victim's car in Chichester, Pennsylvania. Appellant also said that Brisbois described the car as being a light tan Chrysler Cordoba with a brown landau roof. Law enforcement authorities had not previously released to the public any information about a rape or about the victim's car having a brown landau roof.
Detectives investigated appellant's story regarding the culpability of Brisbois, but found that it would have been physically impossible for Brisbois to have been at the crime scene at the relevant time, and, further, Brisbois consented to a blood test which established that he was not the person who had raped the victim. Detectives confronted appellant with this information on January 27, 1982, and, in response, appellant admitted that he had fabricated his earlier statements, and also recanted his earlier story that Brisbois was responsible for the crime. In addition, he told detectives that his relationship with a girlfriend had recently terminated,
that he believed he should have killed her, and that he "wanted to destroy the whole world." A detective then asked several times whether appellant had killed the saleswoman from the shopping mall. After a brief period of silence, followed by an assertion by appellant that he never meant to kill anyone, the following question was posed: "Why did you do it? Why did you kill her?" Appellant replied, "Why do you think?" The detective responded, "I think you just snapped out," but appellant made no further reply and soon declined to continue the discussion, stating, "I've said too much already."
On February 1, 1982, appellant asked to speak to the corrections officer with whom he had previously discussed the case. He told the officer that he had lied to the detectives, and, when asked why he had not told the truth, appellant said, "But I can't. I'll incriminate myself." Nevertheless, appellant proceeded to tell the corrections officer that he and a "buddy" had abducted the woman from the shopping mall, and that, after appellant raped her, the buddy stabbed her to death. Prison officials then summoned detectives to interview appellant again.
Appellant told the detectives that he would like to tell them about the crime but expressed reservations about doing so. A detective said, "You didn't mean to do it, Nick. Things just got out of hand; didn't they?" Appellant replied, "Yeah, they did. They really just got out of hand." Declining to discuss the case further, appellant stated, "Anything that I would tell you would hurt me . . . . I don't want to tell you something that's going to put me in jail." Finally, appellant offered to tell everything he knew, but only if a plea bargain could be arranged.
While in prison, appellant spoke on numerous occasions to a fellow inmate, Charles Cataleno, and made certain highly incriminating statements to him. Aside from asking Cataleno various legal questions about the crime of murder, appellant became very emotional about the murder of the saleswoman from the shopping mall, and said, "If I had the chance again, I never would have killed her." He also
stated, "[T]hey found my blood in her vaginal area." Appellant then asked Cataleno whether such evidence was sufficient to support a conviction. Appellant expressed concern that all of his alibi witnesses would be forced to commit perjury on his behalf at trial, and urged Cataleno to join the ranks of those willing to testify falsely at trial to aid in his defense. He asked Cataleno to lie about conversations between Cataleno and the corrections officer with whom appellant had discussed the case. Finally, appellant told Cataleno that he was engaged in an attempt to blame someone else for the murder, because the individual to be blamed needed to be "paid back" for previous wrongful actions.
In summary, the present conviction was supported by scientific evidence linking appellant to the rape of the victim, testimony regarding appellant's behavior toward the victim in the week preceding the crime, and numerous incriminating statements made by appellant to various individuals. We are satisfied that this evidence was more than sufficient to support the jury's verdict of guilt.
The first allegation of trial error is that an important Commonwealth witness, a detective, should have been sequestered prior to his testimony regarding incriminating statements made to him by appellant. The detective was permitted to hear the testimony of Charles Cataleno, a fellow prisoner of appellant, who testified that appellant had made inculpatory statements to him during his pretrial incarceration. Appellant implies that the detective, upon hearing Cataleno's testimony, was likely to mold his own account to accord with that of the prisoner. This argument is totally without merit.
The record includes the extensive testimony of Detective Martin at appellant's preliminary hearing and suppression hearing regarding the inculpatory statements made by appellant. His trial testimony was consistent with his prior sworn testimony at the preliminary hearing and the suppression hearing. There is no substance to the suggestion that he did, or was likely to, alter his testimony to achieve
consistency with that of Cataleno. Accordingly, we hold that the trial judge was well within his discretion to deny appellant's request that Detective Martin be sequestered in order to prevent the fabrication of false testimony.
The second claim of trial error involves the admission of evidence of appellant's prior criminal convictions of robbery and theft to impeach his credibility. Appellant claims that proof of the convictions was more prejudicial than probative, in violation of this Court's holdings in Commonwealth v. Bighum, 452 Pa. ...