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decided*fn*: March 13, 1989.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, entered October 27, 1983, at Nos. 1688, 1689, 1690 and 1692 January Term, 1980


Nino Tinari, Philadelphia, for appellant.

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

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Mr. Justice McDermott, J., files a concurring opinion in which Larsen and Papadakos, JJ., join.

Author: Stout

[ 521 Pa. Page 429]


This direct appeal*fn1 arises from the conviction and death sentence of Kevin Hughes (Appellant) for murder of the first degree, rape, involuntary deviate sexual intercourse, and arson endangering persons.*fn2 Appellant, who was sixteen years, eleven months, and twenty-four days old at the time of the crimes, was arrested on January 12, 1980, for the March 1, 1979 killing of nine-year-old Rochelle Graham. After pre-trial motions were denied on February 13, 1981, Appellant was tried by a jury before the Honorable Robert Latrone of the Court of Common Pleas of Philadelphia County, who also sat as the Suppression Court. On March 23, 1981, the jury convicted Appellant, and, at the sentencing proceeding,*fn3 determined that Appellant should be sentenced to death on the murder conviction. Counsel argued post-trial motions, which the Trial Court denied on October 27, 1983. The Trial Court sentenced Appellant to death on

[ 521 Pa. Page 430]

    the conviction for murder of the first degree, and to two concurrent sentences of ten to twenty years for rape and involuntary deviate sexual intercourse to run consecutively to the death penalty.*fn4 This direct appeal followed.

Appellant challenges the verdicts below on numerous grounds. An analysis of Appellant's contentions, as well as an independent review of the sufficiency of the evidence in this death sentence case, as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied sub nom., Pennsylvania v. Zettlemoyer, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), compels us to affirm Appellant's murder conviction and to uphold the sentence of death.


The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. See Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

The evidence adduced at trial discloses the following. On March 1, 1979, at about 10:30 a.m., authorities responded to a fire alarm at an abandoned building at 1617 Olive Street in Philadelphia. Detective Boyle of the Philadelphia Police Department testified that upon entering the third floor bedroom, he observed the body of Rochelle Graham laying on the floor. Her body was on its back in a spread-eagle fashion. The body was badly burned, with a partially burned pillow between its legs. There was a strong odor of burnt flesh in the room. N.T. at 99. The letters "PEA" were burned into the ceiling. Id. at 104-05.

[ 521 Pa. Page 431]

The Commonwealth then called Captain William Shirar, Assistant Fire Marshal of the City of Philadelphia. He testified that the fire was of incendiary origin, and that it had been set to the combustibles on top of the victim. Id. at 327, 332.

Dr. Robert L. Catherman, Deputy Medical Examiner for Philadelphia, testified that he conducted an external examination of the body at 4:10 p.m. on March 1, 1979. He discovered bloody and pink fluid and mucus at the nose area and in the mouth, and general thermal burns of the body. Id. at 944-45. The body also showed bruising and superficial surface tearing of the soft tissues in the region of the vaginal opening. In addition, the body had fecal matter protruding from the anus, and there were bruises and tearing of the superficial areas at the anal opening that extended three inches into the anal canal. An internal examination showed soft tissue bruising in the neck with no indication of smoke inhalation. Id. at 945, 948. Dr. Catherman concluded that the injuries were consistent with attempted penetration of the vagina and actual penile penetration of the rectum. He further concluded that Ms. Graham died from manual strangulation, and that the manner of death was homicide. Id. at 952-54.

The Graham homicide went unsolved for approximately ten months.

Marie Oquendo, who was thirteen years old at the time of trial, then testified that around noon on January 5, 1980, Kevin Hughes grabbed her from behind, pushed her into a vacant house, and took her to a second floor bedroom. There, Hughes ordered her to undress and forced her to perform oral sex. He stomped on her face, then grabbed her from behind, and tried to choke her. She passed out and awoke in a closet a few minutes later. N.T. at 1079-89.

Detective John Chidester of the Central Detective Division of the Philadelphia Police Department, testified to the events on January 10-12, 1980. He stated that, accompanied by Homicide Detectives Frank O'Brien and Andrew English, he visited the home of Marie Oquendo. There he

[ 521 Pa. Page 432]

    conducted a photo array, which included a picture of Appellant. Ms. Oquendo identified Appellant as her assailant.

The same day, Detective Chidester obtained an arrest warrant against Appellant for rape, attempted murder, and other charges stemming from the Oquendo incident. The next day, January 11, 1980, at 6:53 a.m., he executed this warrant by taking Appellant into custody from the third floor bedroom of his residence. While there, police personnel observed the name "PEANUT" burned into the ceiling of Appellant's bedroom.

Since Appellant was a juvenile, Detective Chidester requested that Mary Hawthorne, Appellant's grandmother, accompany Appellant and police personnel to police headquarters. She refused to go, but requested that thirty-three-year-old Edward Hawthorne and twenty-year-old Morris Hawthorne, her sons and Appellant's uncles, join Appellant at police headquarters.

From 7:30 a.m. to 8:00 a.m., before the uncles' arrival at police headquarters, Detective Ligato interviewed Appellant in order to obtain background information pertaining to his age, residence, date of birth, education, and other matters unrelated to the criminal charges resulting from the Oquendo incident for which he had been arrested. Subsequently, Morris and Edward Hawthorne arrived. From 8:50 a.m. to 9:00 a.m., both uncles conferred with Appellant concerning the Oquendo charges. At that time, Appellant and his uncles were advised of Appellant's Miranda rights. From 9:10 a.m. to 9:55 a.m., Appellant gave a confession in the presence of his two uncles wherein he fully admitted the sexual assault and related crimes inflicted on Marie Oquendo. After Detective Ligato had completed a contemporaneous written memorandum of Appellant's oral confession, Edward Hawthorne read it in full to Appellant and Morris Hawthorne.

At about 10:00 a.m., Detectives O'Brien and English, noting the similarities between the Oquendo and Graham incidents, stated that they would like to question Appellant about the Graham homicide. After he and his uncles were

[ 521 Pa. Page 433]

    advised of his Miranda rights, Appellant furnished the detectives with an oral exculpatory statement. At about 11:00 a.m., the detectives requested that Appellant take a lie detector test because they doubted the veracity of the exculpatory statement. Appellant and his uncles agreed to the test. While in the polygraph room, Detective O'Brien again advised Appellant, in the presence of his uncle, Edward Hawthorne, of his Miranda rights. At the conclusion of the test, the polygraphist advised the detective that Appellant had failed. Detective O'Brien then advised Appellant and his uncle of the results.

From 12:25 p.m. to 12:35 p.m., all of the parties in the interview room prodded Appellant to tell the truth. Both uncles told him that "[i]f you did it Kevin, tell them." N.T. Suppression Hearing at 445. Detective O'Brien stated, "[i]f you did it, how many more little kids are you going to hurt?" Id. From 12:35 p.m. to 12:45 p.m., Appellant orally admitted that he had sexually assaulted and killed Rochelle Graham on March 1, 1979. These admissions subsequently were transcribed, and Edward Hawthorne read the transcription aloud to Appellant. This reading was tape recorded. At 1:00 p.m., the police transported Appellant to the Youth Study Center. The actual time at which he arrived at the Center does not appear in the record.

In the late evening of January 11, 1980, Detective English, armed with the confession, obtained an arrest warrant for Appellant for the murder of Rochelle Graham. At or about 9:30 a.m. the next day, January 12, 1980, Detective English visited Appellant's residence for the purpose of informing Morris and Edward Hawthorne that Appellant actually was to be arrested for the Graham homicide. Morris Hawthorne, but not Edward Hawthorne, was present at the residence. Detective English transported Morris Hawthorne to the Police Administration Building. At 2:15 p.m., the police picked up Appellant from the Youth Study Center and transported him to police headquarters, where they arrived at 2:25 p.m. After the police read Appellant and his uncle his Miranda warnings, Appellant and his uncle submitted

[ 521 Pa. Page 434]

    to police interrogation concerning the Graham incident. Between 2:45 p.m. and 5:05 p.m., Appellant again confessed that he had sexually assaulted and killed Rochelle Graham. From 5:05 p.m. to 5:45 p.m., and again from 6:10 p.m. to 6:40 p.m., Morris Hawthorne read the entire contents of Appellant's confession to him. The second reading was interrupted at 6:35 p.m. when Edward Hawthorne arrived at the interview room and questioned the veracity of Appellant's confession and the authority of Morris Hawthorne to have assisted Appellant in making it. At 7:49 p.m. on January 12, 1980, Appellant was arraigned.

We believe that this evidence was sufficient to support the first degree murder conviction. 18 Pa.Cons.Stat.Ann. § 2502(a) (Purdon 1983). Appellant's confession, as well as the similarities between this crime and the Oquendo rape, see infra, sufficiently established his identity as the perpetrator of the crime. Moreover, the nature of the attack, manual strangulation, as well as the attempt to destroy the body by fire, evince an intentional, premeditated killing. Commonwealth v. Dollman, 518 Pa. 86, 541 A.2d 319 (1988).


In challenging his convictions, Appellant first argues that the Trial Court erred in finding him competent to stand trial. The facts pertinent to the competency issue are as follows. On October 21, 1980, a competency hearing was held before the Honorable Berel Caesar. Dr. William Levy testified for the Commonwealth that it was his opinion that Appellant was competent to stand trial. Dr. Levy stated that he and his staff had conducted a joint examination of Appellant a few weeks before the hearing. Based on almost daily contact, extensive psychiatric evaluations, and his behavior, Dr. Levy opined that Appellant had the mental capacity and ability to comprehend the charges against him and to cooperate with counsel in his defense. The doctor further opined that Appellant was able to understand the roles that the judge, the defense attorney, the prosecutor,

[ 521 Pa. Page 435]

    the jury, and the witnesses play in a criminal trial. N.T. Competency Hearing at 9-18. Judge Caesar ruled that Appellant was competent to stand trial.

On the day of the suppression hearing, Appellant again raised the competency issue. Judge Latrone ordered that Dr. Edwin P. Camiel, a psychiatrist employed by the City of Philadelphia, examine Appellant. Dr. Camiel testified that in his opinion Appellant was competent to stand trial. Judge Latrone then ordered a private psychiatrist to examine Appellant. Dr. Robert Blumberg examined him, and concluded that he was incompetent to stand trial.

Due to these conflicting opinions, Judge Latrone ordered another competency examination. Dr. Richard Saul, a psychiatrist employed by the City of Philadelphia, examined Appellant and concluded that he was competent to stand trial. Judge Latrone also questioned Appellant in detail about his name, age, date of birth, recognition of both his lawyer and the assistant district attorney, their adverse positions at trial, and the charges against him. He was satisfied that Appellant "knows where he is, why he is here, and when he is here." N.T. Suppression Hearing at 26. The Judge then ruled that Appellant was competent to stand trial.

This Court, in Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967), articulated the test for determining whether one is competent to stand trial:

[T]he test to be applied in determining the legal sufficiency of [a defendant's] mental capacity to stand trial . . . is . . . his ability to comprehend his position as one accused of murder and to cooperate with his counsel in making a rational defense. See Commonwealth v. Moon, [383 Pa. 18, 117 A.2d 96 (1955)] and Commonwealth ex rel. Hilberry v. Maroney, [417 Pa. 534, 207 A.2d 794 (1965)]. Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding, and have a rational as well as a factual understanding of the proceedings against him. See Dusky v. United States, 362 U.S. 402

[ 521 Pa. Page 436]

[80 S.Ct. 788, 4 L.Ed.2d 824] (1960). Otherwise the proceedings would lack due process: Bishop v. United States, 350 U.S. 961 [76 S.Ct. 440, 100 L.Ed. 835] (1956).

Id., 424 Pa. at 495, 227 A.2d at 160. See 50 Pa.Stat.Ann. § 7402(a) (Purdon Supp. 1988). See also Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied sub nom., Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Davis, 459 Pa. 575, 330 A.2d 847 (1975). The defendant has the burden to establish his lack of competence by clear and convincing evidence. 50 Pa.Stat.Ann. § 7403(a) (Purdon Supp. 1988); Commonwealth v. Banks, supra, 513 Pa. at 341, 521 A.2d at 12. Moreover, the determination of competency rests in the sound discretion of the trial court. Id.

Appellant argues that Judge Caesar abused his discretion by finding him competent. He first argues that Dr. Levy, at the time of his evaluation, did not possess earlier reports that had concluded that Appellant was incompetent. These reports, however, were prepared six months before the competency hearing, and are not dispositive of the competency issue immediately before and during the trial. See Commonwealth v. Garnett, 336 Pa. Super. 313, 485 A.2d 821 (1984); Commonwealth v. Knight, 276 Pa. Super. 348, 419 A.2d 492 (1980); Commonwealth v. Hunt, 259 Pa. Super. 1, 393 A.2d 686 (1978).

Appellant next asserts that this Court should believe the testimony of Dr. Blumberg that he was incompetent. Essentially, Appellant asks us to overstep our role as a reviewing court, which we decline to do. The Trial Court explained its rejection of this testimony, stating, "this court assigned no weight and credibility to Dr. Blumberg's expert opinion as to competence since it was based on contradictory factual conclusions and possibly biased motives." Trial Ct. slip op. at 17. Where the record reveals that the Commonwealth's witnesses were familiar with Appellant's condition, and where they had sufficient information upon

[ 521 Pa. Page 437]

    which to base their opinions, the Trial Court does not err in choosing to accept their opinions rather than those of the defendant's experts. Commonwealth v. Banks, supra (no error where expert testimony conflicts if finding of competency adequately supported by record). See also Commonwealth v. Powell, 293 Pa. Super. 463, 439 A.2d 203 (1981); Commonwealth v. Knight, supra. The testimony of the two medical experts and the testimony of the Appellant constituted sufficient evidence of Appellant's competency.

Appellant next argues that he was incompetent to stand trial because he was taking the medications thorazine and elanil as a treatment for his mental disorder. The record revealed that he was taking a conservative amount of these medications. N.T. Competency Hearing at 23-24. Moreover, the fact that one is taking medication is, by itself, insufficient to establish incompetence. See Commonwealth v. Long, 310 Pa. Super. 339, 456 A.2d 641 (1983) (taking medication did not render defendant incompetent to plead guilty); Commonwealth v. Scott, 271 Pa. Super. 545, 414 A.2d 388 (1979) (same). Although the drugs were prescribed as an anti-depressant, nowhere in the record is there any evidence that his ...

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