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decided: June 27, 1989.


Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, as of Information Nos. 2716-2722, August Term, 1985.


Jeremy C. Gelb, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Phila. Co. Chief, Philadelphia, Appeals Div., Hugh J. Burns, Jr., Asst. Dist. Atty., Catherine Marshall, Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this case.

Author: Papadakos

[ 522 Pa. Page 262]


We are presently required to review the conviction of Brian Thomas (Appellant) of murder of the first degree and the sentence of death pursuant to 42 Pa.C.S. § 9711(h)(1).*fn1 Appellant was arrested and charged with criminal homicide, burglary, involuntary deviate sexual intercourse and rape, arising out of the death of Linda Johnson whose naked,

[ 522 Pa. Page 263]

    battered corpse was found dangling over the edge of her bed on August 9, 1985, at her apartment in the City of Philadelphia.

Appellant was tried in the Court of Common Pleas of Philadelphia County, before a jury with the Honorable Edwin S. Malmed presiding. On February 6, 1986, the jury returned its verdicts of guilty of murder of the first degree, burglary, involuntary deviate sexual intercourse and rape. A separate sentencing hearing followed these verdicts, after 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 followed by concurrent terms of imprisonment of ten to twenty years on the burglary conviction, ten to twenty years on the rape conviction, and five to ten years on the involuntary deviate sexual intercourse conviction. This automatic appeal followed.

As it is our practice in death penalty cases to review the sufficiency of the evidence, we begin our review of this matter with a discussion of whether the record evidence was sufficient to support the jury's verdict of murder of the first degree. Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988); Commonwealth 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).

In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether 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).

Using this standard, the evidence adduced at trial, together with all reasonable inferences in favor of the

[ 522 Pa. Page 264]

Commonwealth, discloses the following. At approximately 7:00 p.m., on August 9, 1985, St. Clair Holman returned to his room in the victim's apartment at 5945 Lansdowne Avenue in the City of Philadelphia. Mr. Holman rented this room from the victim and shared these premises with her and her boyfriend, Irving Furlow. Upon arriving, he noticed that the premises had been ransacked and began a search of each room. In his own bedroom he found that his bed had been moved some two feet from its usual resting place and that his television and a can of change totaling about $29.00 were missing.

When Mr. Holman entered the victim's bedroom he found that this room had also been ransacked and came upon the victim's body hanging facedown on a broken box spring. Her lower torso was left dangling down to the floor and was supported by her lifeless knees. The mattresses had been removed from the bed and were placed upright against a wall and paper and clothing were strewn about the room. Mr. Holman testified that the victim's eyes and face were swollen and her nose and right temple were bleeding. There was a bite mark on her cheek and there were bruises on her arms and thighs.

The victim was found with her upper body clothing pulled up over her shoulders and the body was nude from the waist down. There was blood oozing from the victim's vagina and rectum. Upon discovering the victim in this grizzly state, Mr. Holman called the police. Officer McGrath arrived at the scene by 7:25 p.m. and when he determined that the victim had no pulse, he summoned a rescue squad. Since Mr. Holman indicated to Officer McGrath that the apartment was ransacked and his television and $29.00 had been taken, Officer McGrath also made a report of a burglary over the police radio.

Officer McGrath had seen the victim alive only two hours before at the apartment when he was investigating the victim's complaint of a stolen purse. During that interview, the officer testified that Appellant was with the victim.

[ 522 Pa. Page 265]

Mr. Holman was able to corroborate that Appellant was with the victim at 5:45 p.m.

Appellant's friend, Barney Porter, was able to confirm that he saw Appellant with the victim outside of a bar located across the street from the victim's apartment during the late afternoon hours on the day of the murder. Porter also testified that he saw Appellant at around 8:00 p.m. on the same evening on his porch counting out what turned out to be $29.00 in change.

The missing television was found in Appellant's home shortly after the murder. There was also evidence of sperm found in the victim that was consistent with it having been deposited between 5:00 p.m. and 6:30 p.m. on the day of the murder and evidence that the sperm was deposited by a non-secretor, one who does not secrete traces of his blood in his body fluid emissions. Appellant's blood was analyzed and was typed to be non-secreting. Blood found on his boxer shorts proved to be human blood. An impression of Appellant's teeth was cast, which fit exactly with the bite mark left on the victim's cheek.

Finally, the autopsy conducted on the victim's body revealed, in addition to the injuries already mentioned, three fractured ribs, a massive twenty-three inch tear to the victim's body, reaching from the vagina and diaphragm up into the chest cavity, and that a shirt had been shoved into the victim's rectum, through the intestinal wall and into her abdominal cavity. Both of these injuries were caused by the insertion of a blunt instrument into the victim. A blood encrusted crutch was found near the body which no doubt was used to inflict these injuries on victim. Tragically, the medical evidence also indicated that the victim was alive while all these injuries were committed.

Taking all of these circumstances together, a jury could conclude beyond a reasonable doubt that Linda Johnson's death was a homicide. The Crimes Code defines murder of the first degree as "[a] criminal homicide . . . committed by an intentional," i.e., "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a), (d).

[ 522 Pa. Page 266]

From the nature of the injuries, the jury could infer that the homicide was intentional and malicious. Since the evidence shows that there was a conscious purpose to bring about Linda Johnson's death, the requirements for premeditation were met. Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976). Finally, the jury could determine that Appellant committed the crime since the evidence placed him at the scene of the crime at the time of death, blood was found on his boxer shorts, his bite mark was found on the victim's cheek, and sperm of a non-secretor, like Appellant, was found in the victim. Accordingly, we are satisfied that sufficient evidence exists in this record to support the jury's verdict of murder of the first degree.

Appellant raises various claims concerning the sufficiency of the evidence regarding his convictions of burglary, involuntary deviate sexual intercourse and rape. Related to this challenge is Appellant's argument that evidence of these convictions should not have been submitted to the jury during the penalty phase to support the Commonwealth's argument that Appellant committed the killing during the perpetration of a felony.

In response to these arguments, the Commonwealth points out that these challenges were not raised in post-verdict motions and that they must be considered waived. It is true that the failure to raise an issue at trial and in post-trial motions precludes appellate review of the issue, (see, Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974)), but, in death penalty cases, we relax the waiver rule at times and address the merits of arguments raised for the first time in the direct appeal to this court. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). In anticipation of our policy in reaching waived issues in death penalty cases, the Commonwealth argues that the evidence presented at trial is sufficient to support Appellant's convictions for burglary, involuntary ...

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