Appeal From the Judgment of Sentence of the Court of Common Pleas of Luzerne County, entered February 28, 1986, at No. 490 Criminal Division 1984
Joseph L. Vullo, Wilkes Barre, for appellant.
Bernard A. Podcasy, Dist. Atty., Joseph C. Giebus, Asst. Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, former Justice, did not participate in the decision of this case. Zappala, J., files a dissenting opinion in which Nix, C.j., joins.
A jury convicted appellant, James Strong, of murder in the first degree,*fn1 kidnapping,*fn2 robbery,*fn3 theft of an automobile,*fn4 and theft of personal property valued at $200.00 or more.*fn5 A separate penalty hearing was held for the first degree murder charge in accordance with Section 9711 of the Sentencing Code.*fn6 The jury unanimously found three aggravating circumstances and no mitigating circumstances, and accordingly sentenced appellant to death. Post-verdict motions were denied and the appellant was formally sentenced to death. He also received the following sentences on the lesser included offenses: kidnapping -- a consecutive sentence of twenty year maximum and ten year minimum; robbery -- a consecutive sentence of twenty years maximum and a ten year minimum; theft of an automobile -- a consecutive sentence of seven years maximum and
three and one-half year minimum; theft in excess of $200.00 -- no sentence imposed.
The appellant pursued a direct appeal to this Court from the judgments of sentence.*fn7 Eleven (11) assignments of error are raised which will be addressed after first examining the sufficiency of the evidence.
I. SUFFICIENCY OF THE EVIDENCE
Although appellant does not directly challenge the sufficiency of the evidence supporting his murder conviction, it is nonetheless the practice of this Court to review the sufficiency of the evidence in death penalty cases regardless of whether the issue is contested. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27, n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).
The applicable standard 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. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). If the evidence offered by the Commonwealth at trial was legally posited, as we hold, and accepted by the jury, as it was, it can lead to no conclusion other than guilty as charged.
According to that evidence, Mr. John Henry Strock, Jr., age fifty (50) risked the danger of kindness to strangers and lost. He picked up two hitchhikers and had his head blown off with a shotgun. The inculpation of the appellant was given by one James R. Alexander, eyewitness and companion in crime. He told how he and appellant were hitchhiking on Rt. 81 in Greencastle, Pennsylvania, and how Mr. Strock pulled over and offered a ride. The two got in, Alexander in the front seat and the appellant in the back.
While proceeding along Rt. 30 the appellant produced a .20 gauge shotgun and put it on Mr. Strock's shoulder. Taking possession of the car, they rode awhile, Alexander driving, and when they stopped to relieve themselves, the appellant took Mr. Strock to the gulley and shot him. When Alexander heard the shot and a scream he saw appellant standing over Mr. Strock who was lying face down. Alexander asked the appellant why he shot Mr. Strock and he replied "I am tired of leaving witnesses behind." Appellant then offered the gun to Alexander and told him to shoot Mr. Strock in the head. Alexander declined, but at appellant's request removed Mr. Strock's wallet. Alexander then heard another shot, that evidence showed, blew Mr. Strock's head off his body. When appellant was captured he had Mr. Strock's license in his possession, and there was testimony that appellant intended to use this license as false identification. Mr. Strock's life was only a ticket for appellant's further passage: as events proved, but a small distance.
We are satisfied that the evidence was sufficient to sustain the jury's verdict of guilty on the charge of murder in the first degree.
Appellant first argues that the trial court erred in denying his motion in limine to exclude or prevent the Commonwealth from impeaching him by use of his prior criminal record.
Appellant's record included a conviction for robbery and auto larceny in 1969, and two additional convictions for robbery, the most recent of which occurred in 1975. The motion was denied in part by the trial court, which allowed the prosecution to impeach the credibility of appellant through the use of his most recent robbery conviction.
We have recently held that "evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of
conviction or the last day of confinement is within ten years of the trial date." Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). As appellant's robbery conviction in 1975 involved an element of dishonesty tending to discredit him as being untruthful, Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979), and as appellant falls squarely within the ten year time frame, we are satisfied that no error was committed by the trial court in allowing the admission of the 1975 conviction.
III. ASSERTED TRIAL ERRORS
Appellant asserts that error was committed by the trial court through the admission of certain photographs into evidence. The first allegation of error pertains to a pre-death photograph of the victim. This particular piece of evidence, which was found on appellant, was offered by the Commonwealth to establish the identity of the victim: it was presented to the victim's father in furtherance of that particular objective.
We have held that pre-death photographs of a victim can be admitted if they are relevant to a determination of guilt or innocence, Commonwealth v. Green, 488 Pa. 611, 615, n. 2, 413 A.2d 651, 656 n. 2 (1980); and that the admission of photographs is largely within the discretion of the trial court, the rulings of which will not be overturned on appeal unless there is an abuse of that discretion. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). In this case the identity of the victim was arguably at issue, in that the rate of decomposition had made fingerprint analysis impossible, causing initial identification to be based on dental x-ray comparisons. However, even if we agreed with appellant's contention that the admission was erroneous, appellant must still demonstrate that the error was prejudicial.
In Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983), we held that an error may be harmless where the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the error is insignificant by comparison,
that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
In this case the Commonwealth's primary evidence consisted of appellant's partner, who not only saw the victim after he had been shot, but removed his wallet at the direction of the appellant. Additionally, when arrested, appellant had in his possession the victim's belongings.*fn8 We also note that the picture which was introduced was that contained on the victim's drivers license, and its introduction was not accompanied by a recitation of the victim's family life, as was the case in Commonwealth v. Story, id. As in our decision in Commonwealth v. Mehmeti, supra, we are satisfied that the introduction of this photograph, even if it was erroneous, was harmless beyond a reasonable doubt.
Appellant next takes issue with the introduction into evidence of several post-mortem photographs of the victim. To determine whether such photographs are admissible, we have utilized a two-tiered analysis. The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors. Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980).
These black and white photographs depicted the shooting scene and the victim's body. In the photographs
the body was covered by vegetation and debris and the pictures were neither very clear or graphic. As they were relevant in establishing the location of the shooting and the condition of the body when it was found, their admission was not error.
Appellant next contends that during his trial several acts of prosecutorial misconduct were committed. The first is said to have occurred during closing arguments when a statement was made with regard to the Commonwealth's key witness, accomplice James Alexander. The district attorney said: "I tell you ladies and gentlemen, there were absolutely no promises made to him." (N.T.1890). Appellant argues that this statement was an attempt to bolster the credibility of their key witness.
Generally, "comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict." Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). As the outcome of this weighing process rests with the trial court our inquiry of necessity must turn to whether an abuse of discretion was committed. Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968).
The remark in question was in response to a direct attack upon the witness' credibility. That attack took the form of the following comments.
Let's look at James Alexander. Here's a guy on the stand, he's charged with murder, robbery, kidnapping and theft. Observe his demeanor on the stand. He's a guy who told you he had no deal, no deal. Do you believe it? Do you believe it by the way he testified. Did he look concerned, did he look worried about being faced with the charge of murder? You decide. That's for you to decide but recall the way he testified from that stand. Did he look concerned about it? Was he worried about it? Did
he look like somebody who said, hey, baby, I'm home free, I don't have a care in the world?
N.T. 1858-1859. The obvious intent of these remarks was to put the idea in the minds of the jurors that some deal had been struck between the Commonwealth and its chief witness. Certainly the prosecution was entitled to respond to these comments, and the retort was both proper and necessary. Accordingly, we are satisfied that there was no abuse of discretion in the trial judge's refusal to grant a mistrial.
We are similarly satisfied that the next challenged statement made by the district attorney was not an example of prosecutorial misconduct. The statement was that "James Alexander told the whole ugly truth." Though petitioner argues this statement prejudiced him in the eyes of the jury we are inclined to agree with the trial court's classification of the statement as "an appropriate comment." A shotgun killing of an innocent man is certainly, among other things, an ugly event, and the prosecutor's description as such was not inaccurate.
Appellant's final assertion of prosecutorial misconduct is directed at the Commonwealth's closing argument during the penalty phase of the trial. During their testimony appellant's parents had attested to the good character of their son. In his closing the following statement was made by the prosecutor.
The Strongs testified that James Strong was a good person, and what did you expect of them? I'm sure his parents are fine people, no doubt in my mind about that. But remember, they're not on trial. James Strong is on trial.
And remember, everyone at one time or another had parents. Atilla the Hun had parents. Adolph Hitler had parents. Every murderer that ever set forth on this earth had parents.
Appellant argues that reference to these notorious figures during the penalty stage of the trial had the effect of inflaming the passions of the jury by likening appellant to
those figures. For authority he relies upon cases wherein new trials were granted when the defendant was characterized as an "Al Capone", Commonwealth v. Valle, 240 Pa. Super. 411, 362 A.2d 1021 (1976), and as a "Pontius Pilate" and "Judas Iscariot," United States v. Steinkoetter, 633 F.2d 719 (6th Cir. 1980).
We note at the outset that discussing such characterizations are not new to this Court. In Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986), the prosecutor also made reference to Adolph Hitler. In determining whether such a reference tended to inflame the passions of the jurors we looked to the context in which the comparison was made. Here the names of these figures were employed to dilute the potentially mitigating testimony of appellant's parents. The logical implication of the prosecutor's remark was that fine parents are capable of producing murderous off-spring, which is not, we are sad to say, a novel proposition. We are satisfied that in the context of this case the statement was an allusion and not a direct comparison. We further decline to adopt the view that a prosecutor's argument during the penalty stage should be a sterile affair. Many cases are sordid, mordant tales and their very description are librettos for threnodies of death and loss. To tell their story is to inevitably touch human emotions, because they are about human things: sad, terrible, alien human things. They cannot be left undescribed because they are terrible or alien to ordinary human standards of conduct. They are the issue in question and unless one ...