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decided: October 18, 1988.


Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information Nos. 2893, 2896, February Term, 1984, on May 21, 1984.


Janis Smarro, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Alan Sacks, Philadelphia, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion. Zappala, J., files a dissenting opinion.

Author: Papadakos

[ 520 Pa. Page 4]


We are presently required to review the conviction of murder of the first degree and the death sentence of Florencio Rolan pursuant to 42 Pa.C.S. ยง 9711(h)(1).*fn1 Appellant was arrested and charged with criminal homicide, robbery and possession of an instrument of crime, for the death of Paulino Santiago, who was shot to death in an abandoned house in the City of Philadelphia.

Appellant was tried in the Court of Common Pleas of Philadelphia County, before a jury with the Honorable George J. Ivins, Senior Judge, presiding. On May 19, 1984, the jury returned its verdicts of guilty of murder of the first degree and possession of an instrument of crime, and not guilty of robbery. On May 21, 1984, a separate sentencing hearing was conducted, following which the same jury determined that Appellant be sentenced to death. Post-verdict motions were argued and denied, and the trial court sentenced Appellant to death on the murder of the first degree conviction and to a concurrent term of one to two years imprisonment for the weapons offense. This automatic appeal followed.

[ 520 Pa. Page 5]

It being the practice of this court in death penalty cases to review the sufficiency of the evidence, we begin our review of this case by a discussion of whether the record evidence was sufficient to support the verdict of murder of the first degree*fn2 as returned by the jury. See Commonwealth Page 5} 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). The standard we apply in reviewing the sufficiency of the evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).

The evidence presented at trial, together with all reasonable inferences in favor of the Commonwealth, discloses the following. At approximately 8:30 p.m. on May 13, 1983, Appellant and Paulino Santiago, the victim, were arguing with one another at the corner of 17th and Wallace Streets in Philadelphia. The argument was over money and a woman named "Betsy." Betsy was Appellant's former lover who had recently moved out of Appellant's house and had taken up residence in the victim's house (her new lover). The victim's brother, Francisco Santiago, was present at this argument and overheard the exchange between the men.

At the conclusion of this argument, Appellant entered a nearby house and a few minutes later came looking for the victim. Appellant was now carrying a .22 caliber rifle and he found the victim and brother Francisco in an abandoned house on Wallace Street, where the two had entered to use the bathroom. As Appellant entered the abandoned house, he found both brothers and, pointing the loaded rifle at his victim, said, "Give me the money" and immediately fired one shot into Paulino Santiago's chest from a distance of about six feet. Appellant then quickly exited through the house's back door and ran down an alley.

The police were summoned and they arrived at the vacant house about 9:00 p.m. A search of the premises and areas adjacent thereto revealed the loaded .22 caliber rifle lying in the rear alleyway. The autopsy performed the next day

[ 520 Pa. Page 6]

    identified the gun shot wound as the cause of death. A warrant for the arrest of Appellant was issued on May 14, 1983, the day following the shooting, but he was not apprehended until November, 1983, when he was finally located in New York City. Upon being apprehended, Appellant waived extradition and was returned to Philadelphia.

Taking all of these circumstances together, a jury could conclude beyond a reasonable doubt that Paulino Santiago's death was a homicide. From the nature of the injury, a jury could infer that the homicide was intentional and malicious. Since the armed Appellant came looking for his victim, the jury could conclude that the killing was premeditated. Finally, the jury could accept the eyewitness testimony of the victim's brother and conclude beyond a reasonable doubt that Appellant committed the crime. Accordingly, we are satisfied that sufficient evidence exists in this record to support the jury's verdict of murder of the first degree, and dismiss Appellant's sufficiency challenge.*fn3

Appellant argues that the trial court abused its discretion when it denied his request to recuse itself from this case when Appellant brought it to the attention of the trial court that it had presided over another trial on different charges against Appellant. In the previous trial, Appellant was found guilty of murder by a jury with Judge Ivins presiding and, on appeal, this Court reversed the sentence and conviction and remanded the matter for a new trial. Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979). According to Appellant, the fact that the trial judge presided over another trial against him, resulting in a conviction, which was reversed by this Court, may have been a source of embarrassment to the trial court and

[ 520 Pa. Page 7]

    somehow compromised the learned trial court's impartiality towards Appellant. This argument is meritless.

Appellant makes much of the fact that Judge Ivins presided in another murder trial over him and speculatively concludes that what the judge learned about him nine years before somehow biased the court. Such an allegation, devoid of any supporting facts, cannot be sufficient evidence of prejudice, bias, or partiality, and we reject Appellant's contrary argument. Appellant's further conclusion, that the trial court may have been embarrassed by his ruling at the former trial which predicated a reversal, is even more speculative and must similarly be rejected.

The record clearly reveals that on more than one occasion, the trial court assured Appellant that his earlier role would have no effect on his ability to preside over this jury trial (N.T. 4/19/84 p. 7-8; 5/1/84 7, 10). Moreover, this proceeding, like the other murder trial, was conducted before a jury, the ultimate fact-finder of guilt or innocence and determiner of life or death.

We detect nothing from our review of the record to indicate that the trial court's rulings improperly removed factual issues from the jury or unjustly guided their determinations on guilt or the penalty. The mere allegation of the trial judge's former experience with this Appellant, with nothing more, is insufficient to raise any inference of bias and the trial judge did not abuse his discretion in denying the motion to recuse.

Appellant's next argument concerns an allegation of prosecutorial misconduct in reference to a statement made during closing argument which it is argued improperly commented upon Appellant's failure to testify. As we noted in Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987), a prosecutor is not permitted to comment adversely upon a defendant's refusal to testify on the merits of the charge against him. Such comments obviously compromise the privilege against ...

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