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decided: March 6, 1989.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County entered on November 18, 1987 at Nos. 3631, 3632 and 3635, January Term, 1987


Donald Michael Padova, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy District Atty., Ronald Eisenberg, Chief, Appeals Div., Catherine Marshall, Philadelphia, Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Zappala, J., concurred in the result.

Author: Larsen

[ 521 Pa. Page 171]


On June 11, 1987, a jury of the Court of Common Pleas of Philadelphia County convicted Louis Billa, the appellant, of murder of the first degree, escape and possession of an instrument of crime. The following day, that same jury sentenced appellant to death. Post-verdict motions were denied by the presiding judge who formally sentenced appellant to death on November 18, 1987. This direct appeal followed. We now reverse appellant's convictions, and remand to the Court of Common Pleas for a new trial.

The evidence presented at trial, viewed in the light most favorable to the Commonwealth as verdict winner, discloses the following.

On January 8, 1987, the body of sixteen year old Maria Rodriquez was found in the basement of her house in Philadelphia. In addition to defensive wounds on her hands

[ 521 Pa. Page 172]

    and arms, the victim had been stabbed eight times including once in the chest which penetrated her lung, and once in the neck. The knife had broken off and was protruding from her neck. Additionally, the victim had sustained a blunt force injury to her head which was of sufficient force to fracture and expose her skull. A bloody aluminum baseball bat was found in the victim's kitchen.

The victim's shirt was raised up, exposing her breasts, and her pants pockets were pulled inside out. Medical examination discovered the presence of semen in the victim's vagina from a "Type A secretor," but no other indication of sexual assault. It was established that, on the morning of her murder, the victim had been wearing several items of jewelry, namely: a necklace with a heart-shaped pendant with the inscription "Sweet 16," which she had received for her birthday the day before; a necklace imprinted with the name "Maria"; two other gold chains and a ring with the word "love" on it. The jewelry was missing when the victim's body was discovered.

The investigating detective learned from the victim's friends and neighbors that appellant had been trying to establish a relationship with the victim. Appellant, twenty-one years old at the time, had spoken with the victim from the window of his room at the nearby Kensington Pre-release Center, a converted YMCA building, where he was serving part of a jail sentence for a previous conviction. The victim had recently given appellant a Christmas card with a photograph of herself. Appellant had given the victim the "love" ring.

Appellant had left the Kensington Center without authorization on the day of the murder (January 8, 1987). He returned to the Center later that day, and a detective interviewed him at the Center that evening. On January 10, 1987, appellant again left the Kensington Center without authorization, taking with him his clothes and personal belongings. Earlier that day, appellant had given two gold chains with pendants to his cellmate, Andre Rodriquez (no relation to the victim), one with the name "Maria" on the

[ 521 Pa. Page 173]

    pendant and the other with the inscription "Sweet 16." Mr. Rodriquez turned these items over to the police, and informed them that appellant also had a couple of other gold chains in his possession. Appellant's mother (Mrs. Lottie Billa) returned appellant to the Kensington Center on January 11, 1987 at about 1:00 a.m. A search warrant executed at Mrs. Billa's home on January 17, 1987 produced a pillowcase containing appellant's clothing which, upon analysis, revealed type "O" blood stains which matched the victim's blood type.

On January 17, 1987, appellant was transported from the Kensington Center to Homicide Division where he was given Miranda warnings which he waived, whereupon he rendered an inculpatory statement to the interrogating detectives. Appellant stated the following: He left the center at about 10:00 -- 10:30 a.m. on January 8, 1987, and went to the victim's house. In the kitchen, they discussed their "relationship," and the victim told appellant she could not have a relationship with him because she had another boyfriend. They argued and, according to appellant, the victim grabbed a knife on the kitchen table and ordered him out of her house. Appellant's statement reads as follows:

So, I grabbed the knife. The cellar door was open. We struggled down the cellar steps. By me grabbing hold of her hand, that is how she got stabbed, by us tussling that is how it was going. I don't know how many times that was. Then we tumbled on the floor. That is when I got a hold of the knife. She grabbed a hold of my hand when I stabbed her in the neck. I left the knife in her neck. The only time that I wanted to stab her was when I stabbed her in the neck. I ran up the steps and went out the front door. I went back to the "Y." I got into the YMCA by the same way I left. That was through the metal fire escape door which is in the back of the YMCA.

Appellant's statement also admits taking the jewelry from the victim and giving the two chains to his cellmate, and throwing the remaining jewelry away. (Appellant stated that he took the jewelry in the kitchen before the

[ 521 Pa. Page 174]

    stabbing started just because he wanted to wear the chains, and because he wanted the victim to return the ring.) He also stated that, after he stabbed the victim, he gave her "two cracks on her head" with an aluminum bat.

Appellant was charged with murder, robbery, escape, and possession of an instrument of crime.*fn1 Appellant was not charged with rape or any other sexual assault relating to the murder of this victim.

The Commonwealth also introduced evidence concerning a prior offense committed by appellant some two months prior to the murder of Maria Rodriquez. Florence Morales, twenty years old, testified that on November 7, 1986, a few blocks from the Kensington Center, appellant accosted her at about 2:00 p.m. and, when she attempted to evade him, he pushed her onto some steps, bit her face, threatened her with a gun that he said was in his pocket, took gold chains from around her neck, and made her go to a nearby vacant lot with him. At that point, appellant knocked Ms. Morales to the ground, attempted to have her perform oral sex on him, pulled down her pants, and raped her. During the rape, appellant commanded this victim to tell him that she loved him and when she complied, he struck her in the face saying "Bitch, you know you don't love me." The appellant and this victim were not acquainted.

After the rape, appellant told this victim that he could not let her go because she would go to the police, whereupon he strangled her until she lost consciousness in the vacant lot. Fortunately, this victim did not die. She was discovered and taken to a hospital where she received emergency treatment. Medical evidence established that semen in her vagina was from a "Type A secretor." Appellant was shown to be a "Type A secretor." Approximately a week before the instant trial began, appellant was tried and convicted of rape, attempted involuntary deviate sexual intercourse, robbery and aggravated assault for his attack on Ms. Morales. The Superior Court has affirmed these

[ 521 Pa. Page 175]

    convictions. Commonwealth v. Louis Billa, No. 3275, Philadelphia 1987.

The Commonwealth did not present evidence of the fact that appellant had been convicted of these charges stemming from the sexual assault on Ms. Morales, but did present the facts and circumstances of this criminal episode. The trial court admitted said evidence, over vigorous objection of defense counsel, on the Commonwealth's theories that the crimes were similar enough in modus operandi to permit an inference that the perpetrator of one was the perpetrator of the other, to show appellant's intent and motive in murdering Ms. Rodriquez (i.e., to prevent her from reporting him after he had compelled her to have sex with him), and to negate appellant's defense that the killing of his victim was accidental.*fn2

Appellant testified in his own defense, and gave an account of the homicide essentially similar to that contained in his statement to the police, although at trial he stated he could not remember hitting the victim with a bat. He also denied at trial that he ever intended to stab Ms. Rodriquez. His theory of the homicide was that, in the struggle for the knife that Ms. Rodriquez had picked-up, the knife stabbed her accidently. He further claimed that when he went to the victim's house, he was there not to have sex with the victim (on cross-examination he denied having sex with her) but just to establish a closer relationship with her "as a friend."

The jury returned a verdict of guilty of murder of the first degree, escape, and possession of an instrument of crime. Appellant was acquitted, by virtue of a hung jury, on the charge of robbery.

Pursuant to section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711, a sentencing proceeding was immediately conducted before the same jury. The Commonwealth attempted to prove the existence of two aggravating circumstances,

[ 521 Pa. Page 176]

    that the killing was perpetrated during the commission of a felony (the rape of the victim), and that appellant had a significant history of felony convictions involving violence or the threat of violence (namely, the rape/assault etc. involving Ms. Morales, and two separate convictions for robbery/criminal conspiracy). 42 Pa.C.S.A. § 9711(d)(6) and (9), respectively. The appellant's mother testified that appellant had been a hyperactive child with a frustrating learning disability whose father had committed suicide in 1983. Appellant's ...

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