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decided: October 19, 1989.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Pennsylvania, Trial Division, Criminal Section, entered June 18, 1987, at No. 1071, 1074 and 1075, of 1982.


John P. Cotter, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., 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. Flaherty, J., concurs in the result.

Author: Mcdermott

[ 523 Pa. Page 78]


The appellant was tried by a jury and found guilty on two counts of murder in the first degree*fn1 and one count of

[ 523 Pa. Page 79]

    possession of an instrument of crime.*fn2 After further deliberations that same jury rendered two separate verdicts of death for the two first degree murder convictions.*fn3 Subsequently, the trial judge ordered a new trial. This order was vacated, the convictions were reinstated and the case was remanded to the Court of Common Pleas of Philadelphia County, for sentencing. See Commonwealth v. Hall, 361 Pa. Super. 634, 517 A.2d 1364 (1986). Judgment of sentence was entered on June 18, 1987.*fn4 In addition to imposing the sentences of death fixed by the jury,*fn5 the sentencing judge ordered that any commutation of the death sentences was to run consecutive to each other and the other unrelated sentences the appellant was then serving. He further imposed a consecutive sentence of two and one-half to five years imprisonment on the conviction for possession of an instrument of crime. Appellant directly appealed the judgments of sentence.*fn6

The pertinent facts are as follows. On Wednesday, the 18th of March, 1981, at approximately 2:00, A.M., members of the Philadelphia Police Department's Mobile Crime Detection Unit were summoned to investigate a disturbance in a building at 2308 West Diamond Street in Philadelphia, Pennsylvania. Upon arrival they discovered the bodies of Richard Mayberry and George Ellerbee. Mayberry's body, with two gun shot wounds to the head, was found on the second floor landing of the north fire tower of this building. From there police followed a trail of blood which lead them to apartment 305 of the building, where they found Ellerbee's body slumped on the sofa in the living room. From the apartment police recovered several fire-arms, live ammunition, spent cartridges, money and a large quantity of illicit drugs. Police learned that the apartment was rented

[ 523 Pa. Page 80]

    to an Evelyn B. Lingham. On March 20, 1981, Ms. Lingham informed the police that she was present on the night of the murders. She named the appellant as the individual who killed Mayberry and Ellerbee. Another individual, a Paul Fisher, also informed the police that he too was in the the apartment on the night in question. He also named the appellant as the killer. On May 20, 1981, two months later, the appellant was apprehended and formally charged in connection with the killings. His trial began on April 28, 1982 and the jury returned a verdict of guilty on May 11, of that year. He raises several claims of trial court error. Before addressing these claims we must first determine whether the evidence was sufficient to sustain his convictions.*fn7

A review of the record reveals that the principle evidence presented at trial were statements by Ms. Lingham and Mr. Fisher. The trial court permitted the Commonwealth to introduce these statements as substantive evidence,*fn8 even though both witnesses recanted prior statements. Two days after the murders, Ms. Lingham made three separate statements. The first two were transcribed by the police and signed by her and the third was tape recorded.

[ 523 Pa. Page 81]

In the first statement Ms. Lingham denied any knowledge of the murders. Subsequently, in her second and third statements, she told them that she was contacted at her sister's house by the appellant and that he asked her to meet with him, which she did. She stated that when she did he asked her to do him a favor, namely to telephone her apartment and to tell Mayberry that she wanted to come up to Mayberry's apartment. Ms. Lingham stated that the appellant told her that he wanted to see Mayberry because Mayberry had cheated him in a drug deal. Further she explained that Mayberry was a drug dealer and that he had been paying her $300.00 a week to use her apartment to sell drugs.

Ms. Lingham also testified that she called, as appellant requested, but that Mayberry told her to wait for a half an hour. She and the appellant then waited together during which time the appellant showed her a .22 caliber revolver which was concealed under his jacket. They went to the apartment together and appellant knocked on the door. When Mayberry answered, the appellant told him that Ms. Lingham wanted to lay down and get some rest. Mayberry then opened the door. As the appellant entered the apartment, he walked next to Ellerbee, who was sitting on the couch and said, "why do people cross people". He then shot Ellerbee in the head, turned to Mayberry and repeated "why do people cross people". At that point she ran and Mayberry followed. She then heard two more shots. After she got to the first floor, she returned to her apartment and found Mayberry lying in the hallway, bleeding from the back of his head. She then saw the appellant, with gun in hand, trying to get Paul Fisher to come out of the bedroom of Mayberry's apartment. Ms. Lingham then ran outside the apartment and attempted to flag down a cab. By the time she had gotten a cab to stop, the appellant arrived. Both got into the cab and later dropped the appellant at a hotel.

Fisher's statement to the police corroborated Ms. Lingham's second and third statements ...

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