Appeal from the Judgment of Sentence of the Court of Common Pleas, Washington County, Pennsylvania, Criminal Division entered April 14, 1987, at No. 921 and 944, of 1979.
Thomas O. Vreeland (court-appointed), Washington, for appellant.
John C. Pettit, Dist. Atty., Dennis M. Makel, Asst. Dist. Atty., Washington, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott,*fn* Zappala, Papadakos and Stout, JJ. Zappala, J., files a dissenting opinion in which Nix, C.j., joins. Stout, Former Justice, did not participate in the decision of this case.
A jury found the appellant, William Wallace, Jr., guilty of murder in the first degree,*fn1 murder in the second degree,*fn2 robbery,*fn3 and criminal conspiracy to commit robbery and criminal homicide.*fn4 After further deliberation, that same jury rendered a verdict of death for the first degree murder conviction.*fn5 Post trial motions were denied and the judgment of sentence was entered on April 14, 1987. A consecutive
sentence of life was imposed on the appellant for the second degree murder conviction. A concurrent sentence of five to ten years was entered on the conspiracy conviction. The robbery conviction was merged with the the second degree murder conviction and no sentence was imposed on that conviction. Appellant directly appeals the judgment of sentence.*fn6
The events giving rise to this action began on August 17, 1979, when at approximately 5:20 P.M., two men holding handguns, were observed running from Carl's Cleaners in Cannonsburg, Washington County, Pennsylvania. Moments later, Carl Luisi, Sr., the owner of Carl's Cleaners, and Tina Spalla, a fifteen (15) year old employee of Mr. Luisi, were found lying on the floor of the store. Both had been shot. Carl Luisi, Sr., had been shot twice, once in the stomach and once in the back. Tina Spalla, was shot once, through the heart. Both died, for a sum of $227.05 stolen that day.
An anonymous phone call was received by the Cannonsburg Police Department which provided a licence plate number and description of a vehicle seen leaving the crime. Several other witnesses gave statements confirming the presence of the same vehicle in the area. Based upon that information, the Cannonsburg Police Department issued a bulletin to other police departments to look for the vehicle. On August 20, 1979, members of the Wheeling, West Virginia, Police Department, located the vehicle in question and following a stake out, arrested the appellant. A second individual later identified as Henry Brown, the owner of the vehicle, was observed but eluded the police. Brown was subsequently arrested and eventually plead guilty to charges stemming from the robbery-murder.
This appeal represents appellant's third jury trial on the charges of first and second degree murder, robbery, and criminal conspiracy stemming from the robbery and murders. The first trial resulted in a mistrial due to the jury's inability to reach a verdict. The second trial resulted in the
jury convicting the appellant of murder in the first degree for the death of Tina Spalla, murder in the second degree for the death of Carl Luisi, Sr., robbery and criminal conspiracy. The jury sentenced the appellant to death for the first degree murder conviction. Subsequently we reversed that jury's verdict and ordered a new trial. Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983). In the third trial, as noted above, the jury reached the same verdict reached by the jury in the second trial.
Before addressing the specific issues raised by the appellant, an independent review of the record*fn7 reveals that there is overwhelming evidence which if accepted by the jury, would establish with almost virtual certainty that the appellant not only participated in the robbery and killed Carl Luisi, Sr., but also that he intentionally killed fifteen (15) year old Tina Spalla to cover up his killing of Mr. Luisi and the robbery. At trial, five witnesses testified that they saw an automobile matching Brown's in the Cannonsburg area during the day in question, at the time of the robbery. Four of them later identified Brown's car as the one they saw that day, from a number of cars parked at the Washington State Police Barracks. Also, three gave descriptions of the two occupants of the car they saw which matched the general characteristics of the appellant and Brown. Two other witnesses testified that they had observed two individuals having the same general characteristics as the appellant and Brown, running from Carl's Cleaners right before the killings were discovered. Further, these witnesses testified that the individual matching the appellant, was wearing a tan knee-length trench coat, similar to the one owned
by the appellant.*fn8 One of these witnesses also testified the individuals he saw running from the cleaners were carrying handguns.
Anita Johnson, the girlfriend of Brown, testified that Brown owned a .38 caliber handgun and the appellant owned a .32 caliber handgun. Further she testified that she was with both Brown and the appellant on the morning of August 17, 1979, and that at that time, they had their guns with them and that the appellant was wearing his trenchcoat. She also testified that the two left together that day in Brown's car and that she did not see either until Brown returned on the evening of August 20, 1979.
Ms. Johnson's testimony was significant because it was established through earlier testimony that both victims died as a result of being shot with a .32 caliber gun and the description of dress of the appellant on the day of the murders. Dr. Ernst L. Abernathy, the pathologist who performed the autopsies of the victims, testified that on August 18, 1979, he removed two bullet slugs from the body of Mr. Luisi and one from the body of Ms. Spalla and that he turned them over to Trooper Bivens, of the Pennsylvania State Police. Trooper Bivens testified he was present when the autopsies were performed and that when the bullet slugs were removed, they were turned over to him and that he took them to the Greensburg State Police (Crime) Laboratory.*fn9 Trooper Daryl Mayfield of the Greensburg State Police (Crime) Laboratory, who was admitted as an expert in ballistics, testified that he received three bullet slugs from Trooper Bivens and after examining each, determined all three to be .32 caliber bullet slugs and further that all three were fired from the same gun. Furthermore a .38 caliber handgun was introduced into evidence, and identified by Ms. Johnson as Brown's.
Any doubts the jury may have had as to the guilt of the appellant were, if believed, removed by the testimony of the last two Commonwealth witnesses, Brown and Olen Clay Gorby. Brown testified that around 1:00 P.M. on August 17, 1979, he and the appellant left Wheeling, West Virginia, in his car and headed towards Pittsburgh. He testified that on the way they spotted an exit for Cannonsburg and took it so they could "make a couple extra dollars." He testified he had a .38 caliber handgun and the appellant had a .32 caliber handgun and that the appellant was wearing a beige trenchcoat. He then testified that once inside Cannonsburg, they spotted a cleaners and after circling it and seeing only one girl working, they decided to park and go in. He testified that upon entering they asked for a price list and when the girl bent down they pulled out their guns. He stated further that the appellant went into the back to make sure no one else was there. He testified that while he was emptying the cash register he heard a gun shot and when he looked back, he saw an old man holding his stomach and then saw the appellant shoot him in the back, "before he could hit the ground." N.T., Third Trial, p. 613. He said that the appellant then came back, asked him to shot the girl and that he refused. He then testified, referring to the appellant, "at that point he didn't hesitate, he just shot . . . ." N.T., Third Trial, p. 614. He testified they then left the cleaners, Brown first and the appellant following, and that they still had their guns out about half way down the street before they put them away.
Olen Clay Gorby testified that he was incarcerated with the appellant in the Washington County Jail during the summer of 1980 and that at that time, he had known the appellant for approximately seven years. He stated that during a conversation he had with the appellant while both were incarcerated, the appellant admitted that he robbed Carl's Cleaners and that he shot Mr. Luisi.*fn10 Further,
Gorby testified that the appellant said he told Brown to shoot Ms. Spalla and when Brown refused, he did.
The evidence presented if believed, sufficiently established the appellant's guilt and in fact, left no room for doubt, with the credibilities accepted by the jury, the evidence is overwhelming. With this in mind we address the appellant's specific claims of error.
The first claim of error is the trial court erred in denying his motion for a mistrial based upon a commonwealth witness' testimony which raised an inference of the appellant's past criminal record. At trial the prosecution asked Olen Gorby, "where did you meet the defendant Wallace" and Gorby replied, "I met him in the West Virginia Penitentiary, 1973." N.T., Third Trial, p. 722-23. The defense objected and moved for a mistrial.*fn11 The appellant's motion was denied and appellant refused an offer by the trial judge to give a cautionary instruction claiming that an instruction would only serve to further prejudice him. N.T., Third Trial, p. 738-749.*fn12
Appellant claims that the testimony was highly prejudicial because it created an inference of unrelated past criminal acts and because it was highlighted by an overnight recess directly after introduction. The prosecution argues that it was merely attempting to demonstrate that there was a relationship between the witness and the appellant, to establish that the appellant would confide in the witness. Further the prosecution argues that the statement did not relate to a specific past criminal act and that at the time of the statement, approximately 90% of the commonwealth's evidence had been presented. The trial judge ruled that the creation of the inference was unintentional
on the part of the prosecution and that it did not exploit the statement. N.T., Third Trial, p. 736.
In Commonwealth v. Morris, 513 Pa. 169, 519 A.2d 374 (1986), we addressed a similar situation where there was an improper reference to prior criminal activity at trial. In Morris we held:
As a general rule, evidence of crimes unrelated to the charge for which the defendant is being tried, is inadmissible. . . . . There is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity. . . . . "We have never ascribed to the view that all improper reference to prior criminal activities necessarily require the award of a new trial as the only effective remedy." . . . . Further the reference to the prior criminal activity must be prejudicial to the defendant, with prejudice resulting "where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense."
However it is possible to eradicate any possible prejudice resulting from reference to prior criminal activity by the defendant . . . . An immediate curative instruction to the jury may alleviate any harm to the defendant that results from reference to prior criminal conduct.
Id., 513 Pa. at 175-76, 519 A.2d at 376-77. (Citations omitted).
This is not a situation involving an exception to the general rule nor is there any doubt that the testimony created an inference to the jury that the appellant had been involved in prior criminal activity. However we do not believe that a new trial is warranted under the circumstances present here. As we said in Morris, there is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity. In this case, the testimony did not relate to any specific past criminal act and while the testimony might have inferentially exposed a prior conviction, the jury had no direct knowledge of the basis of that conviction. In light of the overwhelming and uncontroverted evidence presented establishing appellant's
guilt, the improper reference to the appellant's prior incarceration was harmless at most.*fn13
The appellant asserts in the alternative, that the trial judge erred in not giving a cautionary instruction. The record reveals that the trial court offered to give a cautionary instruction and that counsel for the appellant failed to take a stand on whether or not one should be given. Further the record reveals that no objection was made when a cautionary instruction was not forthcoming. This argument has been waived. See Commonwealth v. Pierce, 515 Pa. ...