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05/20/97 COMMONWEALTH PENNSYLVANIA v. WAYNE A.

May 20, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
WAYNE A. SMITH, APPELLANT



Direct appeal from the judgment of death entered on May 22, 1995, in the Court of Common Pleas of Delaware County at No. 4586-94.

Justice Cappy. Mr. Chief Justice Flaherty files a Dissenting opinion in which Mr. Justice Zappala joins.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY FLAHERTY

DECIDED: May 20, 1997

This is a direct appeal from judgment of sentence of death imposed on Appellant, Wayne A. Smith, by the Court of Common Pleas of Delaware County, Pennsylvania. For the reasons expressed in this opinion, we affirm Appellant's conviction and the judgment of sentence of death imposed on him.

Appellant was charged with murder and related offenses in connection with the killing of Eileen Jones. The jury found Appellant guilty of first degree murder. *fn1 After the penalty phase hearing, the jury concluded that the aggravating circumstance it found (Appellant's prior conviction of voluntary manslaughter) *fn2 outweighed the mitigating circumstances it found (Appellant was suffering from mental or emotional disturbance at the time of the crime; *fn3 Appellant had some remorse; *fn4 and Appellant had an abusive childhood *fn5 ). The jury returned a verdict of death. Judgment of sentence of death was imposed on Appellant on May 22, 1995. Proceeding under new Pa.R.Crim.P. 1410B(1)(c), Appellant elected not to file a post-sentence motion with the trial court. *fn6 His issues on appeal to this court are enumerated in his Statement of Matters Complained of on Appeal, and are addressed in an opinion issued by the trial court pursuant to Pa.R.Crim.P. 1925(a). *fn7

In all cases in which the death penalty is imposed, we must conduct an independent examination of the sufficiency of the evidence supporting the appellant's conviction. 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), reh'g denied, 463 U.S. 1236, 104 S. Ct. 31, 77 L. Ed. 2d 1452 (1983). "In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt." Commonwealth v. Hughes, 536 Pa. 355, 361, 639 A.2d 763, 766 (1994).

In a first degree murder *fn8 case, the Commonwealth must prove that the defendant acted with a specific intent to kill. 18 Pa.C.S. § 2502(d). The Commonwealth must show that: 1) a human being was unlawfully killed; 2) the defendant participated in the killing; and 3) the killing was done in an intentional, deliberate, and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). It is the specific intent to kill which distinguishes murder in the first degree from lesser grades of murder. Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101 (1977).

The record reveals sufficient evidence upon which the jury could have found Appellant guilty of murder in the first degree. The evidence at trial was as follows. Ms. Jones had been at Don's Bar in Eddystone, Delaware County, with her boyfriend, John Murray, from approximately 6:00 p.m. until 8:30 p.m. on November 18, 1994. Upon leaving Don's Bar, the victim and John Murray visited with a friend, Helene Edwards, in the Sun Village area of Chester. Ms. Jones left Ms. Edwards' home, and, when Mr. Murray attempted to accompany her, she told him she was going to a friend's house. Mr. Murray last saw the victim at approximately 9:00 p.m. on November 18, 1994, walking alone up Morton Avenue.

At approximately 10:30 p.m. on that same evening, Ms. Jones was accompanied by an African-American male when she arrived at the home of her friend, Edna Love. The man who accompanied Ms. Jones wore stereo headphones and a baseball cap. Ms. Love did not invite Ms. Jones and her companion inside her home because Ms. Love was putting her baby to bed. Ms. Jones and her male companion left Ms. Love's house after a few minutes.

Appellant approached his nephew, Michael Smith, at approximately 11:00 p.m. on November 18, 1994, asking permission to use Michael Smith's car to take a woman to a motel. Michael Smith observed the woman at the time this request was made and later identified the woman who accompanied the Appellant as Ms. Jones. Appellant did not appear to Michael Smith to be intoxicated or "high" on drugs at the time he lent Appellant his car. Appellant later returned the car keys to Michael Smith at approximately 12:30 a.m. on November 19, 1994. On the afternoon of November 19, 1994, Appellant stated to his brother, Jeffrey Smith, that he had murdered Ms. Jones in Sun Village Park by choking her with his hands and with a belt.

The partially clothed body of Ms. Jones was discovered in Ridley Creek, in an area near the boundary between the City of Chester and the Borough of Eddystone in Delaware County, at approximately 10:00 a.m. on November 22, 1994. The Delaware County Medical Examiner determined that the cause of death was strangulation and that the manner of death was homicide.

Subsequently, in Appellant's bedroom, police recovered headphones, a baseball cap, and several newspapers from which articles regarding the recovery of the victim's body had been removed. While in police custody, Appellant was advised of his Miranda rights, which he waived. Appellant then provided detectives with a tape-recorded statement, which was transcribed and admitted into evidence at trial. In this statement, Appellant stated that he had borrowed his nephew's car so that he could buy drugs, and that the victim had agreed to have sex with him in exchange for drugs. Appellant stated that he and the victim had gone to Sun Village Park. When Appellant attempted to have sex with the victim on the ground, he became concerned that she would accuse him of having raped her. Appellant then choked the victim to death, disposing of her body and her possessions in Ridley Creek.

After reviewing the record in this matter, we find that the evidence was more than sufficient for the jury to conclude that Appellant had the specific intent to kill Ms. Jones and that Appellant committed first degree murder. From the evidence, the jury could have concluded that: Ms. Jones was unlawfully killed; Appellant did the killing; and Appellant killed Ms. Jones in an intentional, deliberate, and premeditated manner.

Appellant's first argument is that the trial Judge erred in refusing to permit Appellant to present the testimony of Dr. George Woody, either in his case-in-chief or on surrebuttal.

At trial, the defense intended to call two expert witnesses, Dr. George Woody and Dr. Perry Berman, who are both licensed psychiatrists, to support Appellant's argument that he was acting under a cocaine-induced toxic psychosis at the time of the killing, and, therefore, he was unable to form the specific intent to kill the victim. Appellant admitted his guilt to third degree murder of the victim, and urged that this cocaine-induced psychosis evidence would allow the jury to mitigate the charge of first degree murder to third degree murder on the basis of section 308 of the Crimes Code, 18 Pa.C.S. § 308. *fn9 When the defense proceeded with its case-in-chief, however, Dr. Woody was not present; thus, the defense called Dr. Berman to the stand.

Dr. Berman testified as to the effects of cocaine ingestion on an individual and as to how the ingestion of cocaine would prevent an individual from forming the specific intent to kill. Dr. Berman testified that toxic psychosis, a condition that occurs due to cocaine intoxication, is a recognized psychiatric disorder in the Diagnostic and Statistical Manual, 4th Edition (DSM-4), which is relied upon by psychiatrists in diagnosing patients. Dr. Berman testified that toxic psychosis from cocaine intoxication can occur in individuals at varying dosage levels and cause hallucinations and delusions. Dr. Berman reviewed the autopsy reports and chemical analyses which were performed on the victim and interviewed Appellant. Dr. Berman opined that Appellant was suffering from a cocaine-induced psychotic disorder at the time that he strangled the victim to death. It was Dr. Berman's expert medical opinion that Appellant was unable to form the specific intent to kill the victim. On cross-examination by the prosecution, Dr. Berman explained that his opinion was based on his review of the autopsy reports performed on the victim, as well as his interview of Appellant, Appellant's statement, and the Affidavit of Probable Cause. Moreover, on cross-examination Dr. Berman testified that although he had no knowledge of the amount of cocaine Appellant ingested, the effect of a cocaine-induced psychotic experience is not determined by the amount of cocaine ingested by an individual but by an individual's usage of the drug over a period of time and the manner in which it is ingested. Additionally, on cross-examination, Dr. Berman explained how, from the psychiatric standpoint, Appellant could have been aware that he was physically strangling the victim yet unable to "turn off" his psychosis. Dr. Berman testified on cross-examination that Appellant's ability to physically carry out his plans at the time of the killing did not affect his psychiatric opinion that Appellant was suffering from toxic psychosis.

Dr. Woody was not present in the courtroom at the completion of Dr. Berman's testimony. The defense informed the trial court that Dr. Woody would be "tied up in Center City Philadelphia" until after 5:00 p.m., and would come directly to the courtroom in Media. The defense requested that Dr. Woody be permitted to testify in the defense's case-in-chief, offering Dr. Woody as the author of the section in the DSM-4 dealing with cocaine and psychotic disorders, and as a psychiatrist and an expert in the effect of controlled substances, i.e., cocaine, on an individual's brain. The prosecution objected that Dr. Woody's proffered testimony would be cumulative of Dr. Berman's testimony concerning the DSM-4 and the effects of cocaine on Appellant. The trial Judge sustained the prosecution's objection, and the defense reluctantly rested its case.

The trial Judge then directed the Commonwealth to proceed with its rebuttal witness, Dr. Richard Cohn, who was qualified as an expert in the areas of forensic toxicology and pharmacology. Dr. Cohn testified that cocaine-induced psychosis is dosage dependent, in that the amount of cocaine ingested by an individual and entering the individual's blood stream is an important consideration as to whether a toxic pyschosis would be produced. Dr. Cohn further testified that with a chronic cocaine user, it would take a higher dosage for him to be able to opine that the level would be consistent with a toxic psychosis. Dr. Cohn testified that, in view of the levels of cocaine and cocaine metabolites found in the victim's blood and urine, and, assuming that Appellant had consumed the same amount of cocaine as had the victim, it was impossible to conclude that Appellant had suffered a cocaine-induced toxic pyschosis at the time of the killing. Additionally, Dr. Cohn opined that Appellant was not suffering from toxic psychosis at the time of the killing because he retained his physical abilities and recalled the events surrounding the killing with clarity. Dr. Cohn further opined that Appellant's specific intent to kill the victim was not affected by his ingestion of cocaine. Dr. Cohn testified on cross-examination that he was not familiar with the DSM-4, mainly because he is not a psychiatrist.

At the Conclusion of Dr. Cohn's testimony, Dr. Woody was present in the courtroom, and the defense requested permission to reopen its case-in-chief to call Dr. Woody as on direct examination as part of the defense's case-in-chief. The defense's offer of proof for Dr. Woody's testimony on direct was that he would testify as to the state of scientific literature, with regard to the correlation of dosage of cocaine with psychotic behavior, and the diagnostic criteria for individuals suffering from the psychotic effects of cocaine. The prosecution objected on the ground that Dr. Woody's testimony ...


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