Appeal from the Judgment of Sentence entered February 2, 1987 in the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC 8512675 and CC 8512903 wherein the Court imposed the jury's sentence of death.
Shelley Stark, Chief-Appellate Div. and Kim Wm. Riester, Assistant Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal Alexander Mericli, and Edward Marcus Clark, Asst. Dist. Attys., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Zappala, J., concurs in the result.
On July 11, 1985, a jury of the Court of Common Pleas of Allegheny County convicted Ronald G. O'Shea, the appellant, of robbery and of murder of the first degree for the machete killing of Herbert Kleber and the robbery of the
store in which Mr. Kleber was working when the murder took place. The following day, that same jury sentenced appellant to death following a hearing conducted pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711. Post-trial motions were denied on December 5, 1986 by the presiding judge, the Honorable Robert P. Horgas. On February 2, 1987, Judge Horgas denied appellant's supplemental post-trial motions, and formally sentenced appellant to death in accordance with the verdict of the jury. A concurrent sentence of ten to twenty years imprisonment was imposed on the robbery conviction. This direct appeal automatically followed. 42 Pa.C.S.A. §§ 9711(h)(1) and 722(4); Pa.R.A.P. Rule 702(b).
The record evidence, viewed in the light most favorable to the Commonwealth which prevailed on the verdict, discloses the following. In the early morning hours of November 22, 1985, City of Pittsburgh police officers found the body of Herbert Kleber in the rear of the Liberty Avenue News, where the victim was employed as a clerk. His body was in a freight elevator in the rear of the store, lying face down and his hands were handcuffed to the metal grate door of the elevator about six inches off the ground. Forensic evidence established that the cause of death was multiple deep wounds to the shoulders, neck and head that had been inflicted by a heavy and large knife, consistent with wounds that would be inflicted by a machete.
One of the owners of the Liberty Avenue News had just stocked the shelves the preceding day with the victim's assistance, and thus the owner was able to inform the police of numerous items that he knew to be missing from the store. These items included one of two machetes, knives, numerous inexpensive gold chains, about fifty butane lighters, martial arts throwing stars, other jewelry, cigarettes, and cash that had been in the cash register and in an envelope containing proceeds from the sale of lottery tickets. Also missing from the store was a light gray athletic type bag that had been left in the rear of the store.
The store owner provided the investigating police officers with the names of its current and past employees, as well as samples of many of the items that had been stolen. Appellant was on the employee list and had recently been fired for stealing money. The Pittsburgh police officers, including Detective Ronald Freeman, knew appellant from his previous history in the criminal justice system.*fn1 On the afternoon of November 22, 1985, police officers learned that a man matching appellant's general description had been giving away gold chains and money in the downtown, Market Square, area of Pittsburgh.
Detectives Freeman and Terry Hediger decided to question appellant, and they drove out to his residence in Shaler Township, a municipality just outside of the City of Pittsburgh, to do so. Appellant had been living with his brother and sister-in-law, James and Marion O'Shea, and their daughter Eileen in Shaler Township. When these detectives arrived at the O'Shea residence later that day, appellant was not there. After identifying themselves and explaining that they wanted to question appellant, the detectives were given permission to enter the house by the owners, James and Marion O'Shea. The O'Sheas took the detectives to the family gameroom in the basement which is where appellant slept. In this room, the detectives viewed a large hunting knife and a plastic bag containing several gold chains, which were identical to items stolen from Liberty Avenue News. The O'Sheas had never seen these items previously. Additionally, in a laundry room adjacent to the game room, Mrs. O'Shea discovered a gray athletic bag that she had never seen before (which turned out to be
the bag taken from the store) and turned it over to the detectives.
At some point while the detectives were in the basement, appellant returned home. He knew about the homicide/robbery and suspected the detectives were there to question him. Appellant became somewhat agitated and told the detectives that he did not want to involve his family, and he requested that he go downtown with them. Appellant voluntarily accompanied the detectives to the Pittsburgh Public Safety Building.
On the ride downtown, appellant began discussing the homicide, at first denying any involvement in it. The detectives advised him not to discuss it, but he persisted and Detective Freeman then orally advised him of his constitutional Miranda rights. Arriving at the Public Safety Building, appellant was again advised of his Miranda rights, and he executed a written waiver of said rights. After giving two contradictory statements about his activities the previous evening, appellant confessed to the murder of Herbert Kleber and the robbery of the Liberty Avenue News.
Appellant told the detectives: that he had gone to the Liberty Avenue News on November 21, 1985, and asked the victim to repay him a $20.00 debt; that the victim "sucker punched" appellant; that appellant then forced the victim to the rear of the store and handcuffed him to the freight elevator; that the victim then, while handcuffed on the floor of the elevator, kicked him in his groin; that subsequently, appellant went to the front of the store and filled a gray bag with gold chains, cigarettes, knives, butane lighters and other items, and he also took cash from the cash register.
Appellant further stated that he then decided to kill the victim who knew him and could send him to jail; that he took a machete from the store, went back to the elevator, and started hitting the victim with it -- he could not remember how many times he hit the victim; that he left the store, and went to the Good Time Bar in the Borough of Millvale, adjacent to the City of Pittsburgh; that at this bar and elsewhere on the evening of November 21, 1985, appellant
gave lighters, chains, cigarettes and other items from a gray bag to numerous people including the bartender, bar patrons and appellant's girlfriend; and that he had gotten rid of the machete, which was never found.
Appellant was arrested. Further investigation confirmed that appellant had indeed distributed items stolen from Liberty Avenue News to various individuals who testified against appellant at trial. Additionally, appellant was wearing a jacket at the time of his arrest which had blood stains on it. Chemical analysis showed that this blood was consistent with that of the victim (whose blood contained genetic markings shared by only two percent of the population) and inconsistent with appellant's.
Appellant was charged with homicide and robbery and, following disposition of pretrial motions, his trial began on July 9, 1986. On July 11, 1986, the jury returned a verdict of guilty of murder of the first degree and of robbery. The bifurcated sentencing proceeding required by the Sentencing Code, 42 Pa.C.S.A. § 9711, was then conducted. The Commonwealth offered only one aggravating circumstance in support of the death penalty, namely that appellant had committed the killing while in the perpetration of a felony, i.e. the robbery. 42 Pa.C.S.A. § 9711(d)(6). The defense presented psychiatric and other evidence of mitigating circumstances suggesting that appellant was, at the time of the murder, under the influence of extreme mental or emotional disturbance and that he was incapable of appreciating the criminality of his conduct or of conforming his conduct to the law. 42 Pa.C.S.A. § 9711(e)(2) and (3). The defense also presented as other "evidence of mitigation concerning the character" of the accused, that he had been sodomized as a young boy of 6-8 years and that he had been deeply affected by his mother's death when he was 16 years of age. 42 Pa.C.S.A. § 9711(e)(8).
After arguments by the defense and the Commonwealth, the jury was instructed by the court in accordance with the Sentencing Code. The jury unanimously found an aggravating circumstance -- killing committed while in the perpetration
of a felony -- which outweighed any mitigating circumstances. (The mitigating circumstances were not specified by the jury.) The jury therefore sentenced appellant to death. 42 Pa.C.S.A. § 9711(c)(1)(iv).
Our standard of review in cases of murder of the first degree in which a verdict of death has been rendered is established by the Sentencing Code, 42 Pa.C.S.A. § 9711(h), which provides:
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings as provided in paragraph (4).
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and ...