Direct Appeal from the judgments of Sentence of the Court of Common Pleas of Delaware County, entered April 18, 1995, at No. 902 of 1994. JUDGES BELOW: Hon. Joseph F. Battle.
Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ.
The opinion of the court was delivered by: Cappy
This is a direct review of a sentence of death imposed by the Court of Common Pleas of Delaware County and an appeal of the related convictions. *fn1 Appellant had been incarcerated on convictions unrelated to this current case. He was released on parole in December 1993. His aunt, Ms. Elizabeth Gease, permitted Appellant to live with her. Subsequently, Ms. Gease locked Appellant out of her home because she believed he had stolen from her. Around April 27, 1994, Ms. Gease's body was found in her basement, bound and gagged. On April 28, 1994, Appellant confessed to the police that he killed his aunt. Following a jury trial, Appellant was found guilty of first degree murder, *fn2 robbery *fn3 and kidnapping. *fn4 During the penalty phase, the jury found two aggravating circumstances: (a) that the Appellant committed a killing while in the perpetration of a felony *fn5 and (b) that the Appellant has a significant history of felony convictions involving the use or threat of violence to the person. *fn6 Additionally, the jury found one mitigating circumstance, i.e., the capacity of the Appellant to appreciate the criminality of his conduct was substantially impaired. *fn7 The jury concluded that the two aggravating circumstances outweighed the mitigating circumstance and, accordingly, returned a verdict of death. *fn8 At a sentencing hearing, the trial Judge formally imposed the sentence of death for the first degree murder conviction and a sentence of 10-20 years for the kidnapping conviction and an additional 10-20 years for the robbery conviction, which sentences are to be served consecutively. Although Appellant does not raise the sufficiency of the evidence to sustain the conviction for the crime of first degree murder, we will nevertheless review the record to determine if there was sufficient evidence to sustain the conviction of first degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 77 L. Ed. 2d 1327, 103 S. Ct. 2444 (1983). In reviewing the sufficiency of the evidence, this Court must view all of the evidence and reasonable inferences deducible therefrom in a light most favorable to the Commonwealth as the verdict winner and must determine whether the evidence adduced, when viewed in such a light, would permit a jury to find that all of the elements of the offense were established beyond a reasonable doubt. Commonwealth v. Rucci, 543 Pa. 261, 670 A.2d 1129 (1996). In the case of a first degree murder conviction, we must determine whether there was sufficient evidence to prove that Appellant caused the death of another human being by an intentional killing. 18 Pa.C.S.A. §§ 2501(a) and 2502 (a). An intentional killing is a "killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S.A. § 2502 (d).
In reviewing the record, we find that Ms. Gease's co-workers were concerned by her absence from her employment. Ms. Gease's brother was contacted. On April 27, 1994, Ms. Gease's brother gained entry into Ms. Gease's home and, after discovering its condition, he called the Yeadon police, who found Ms. Gease's bound and gagged body in the basement. On April 27, 1994, Appellant was arrested in Philadelphia in an unrelated matter. While processing Appellant in Philadelphia, the Philadelphia police learned of the murder of Ms. Gease at the address where Appellant had been living. The Philadelphia police contacted the Yeadon police concerning Appellant. The Yeadon police went to Philadelphia and, after advising Appellant of his rights, they questioned Appellant concerning the murder of his aunt. After some questioning, the Yeadon police requested Appellant's permission to tape the questions and his responses thereto. Appellant agreed. During the course of the taped conversation, Appellant admitted to killing his aunt. At trial, the Commonwealth introduced the cassette tape and a corresponding transcript of that tape wherein the Appellant related the following.
Appellant was previously incarcerated on unrelated charges and had been released on parole. Appellant's aunt permitted him to stay with her following his release. During this stay with his aunt, Appellant had stolen money from her and she had found out about the theft. Fearful that she had informed his parole agent about Appellant's stealing, Appellant confronted his aunt and accused her of informing someone about his stealing. During this confrontation, Appellant choked his aunt and then bound her hands and feet together with a telephone cord. He then dragged her downstairs into a bathroom located in the basement. Appellant then tied her hands and feet together with some rope and placed a portion of the rope around his aunt's neck so that she could not fully extend her body. Appellant then closed the door to the bathroom and turned on the dryer so that no one could hear his aunt's screams. Appellant then went upstairs to collect some items to sell. He returned to the basement to check on his aunt. He found that she had freed her hands from the rope. Appellant then tied her hands better and tied a nightgown around his aunt's mouth and placed blankets over her. Appellant eventually left the house around 6:30 p.m.
Appellant returned to the home the following day around 8 or 9 p.m. Appellant went into the basement, and he heard his aunt screaming. He spoke to his aunt. Appellant then turned on the dryer to drown out her screams. He returned upstairs to collect some more of his aunt's belongings to sell. Appellant left the home and did not return until the following day. Upon his return, he went downstairs. Appellant stated that he could smell urine and feces emanating from his aunt. He saw that she was moving under the blankets. Appellant then turned the dryer on again and left the residence. He returned the following day to pick up his check from the mailbox but did not enter the residence. Later that same day, Appellant returned to the home and removed his aunt's television, with the help of a confederate, so as to sell it. Appellant then left the home and did not return again. On this last visit, Appellant did not check on his aunt. This concludes our recounting of Appellant's confession.
Since the law permits the factfinder to infer that one intends the natural and probable consequences of his acts, we find that Appellant's confession, combined with other testimony and the photographs of the victim admitted into evidence which corroborate the confession, constitute sufficient evidence for the jury to have found each element of murder in the first degree beyond a reasonable doubt. See, e.g., Commonwealth v. O'Searo, 466 Pa. 224, 239, 352 A.2d 30, 37 (1976)("First, we know of no proposition more consistent with human experience than the Conclusion that absent circumstance to the contrary, a person intends the natural and probable consequences of his act."); Commonwealth v. Gardner, 490 Pa. 421, 425, 416 A.2d 1007, 1008 (1980)("If the act of the defendant under all the circumstances properly gives rise to an inference that the appellant knew or should have known that the consequence of his act would be death or serious bodily harm, malice is present.")
In his brief to this court, Appellant raises the issue of whether he was denied a fair trial due to alleged prosecutorial misconduct. The facts giving rise to the allegation of prosecutorial misconduct are as follows.
During the guilt phase, the prosecutor had created a visual aid for use in his closing statement. The visual aid was a posterboard which measured approximately 28 inches by 44 inches, upon which the prosecutor had affixed five black and white photographs. The five black and white photographs had all been admitted into evidence during the course of the trial. Each of the black and white photographs affixed to the posterboard measured approximately 8 inches by 10 inches. The five black and white photographs depicted: 1) Ms. Gease lying face down with her hands bound behind her back and with her head covered with a rag; 2) the right side of Ms. Gease with her hands and feet bound together, lying next to the side of a toilet, her upper torso covered with rags; 3) a man holding a piece of cloth which was used as a gag that was placed in the mouth of Ms. Gease; 4) a close-up shot of the way in which the hands of Ms. Gease were bound; and 5) the face of Ms. Gease, which shows some deformity in the lower left lip area. The deformity in this area was caused by the effects of a virus formed while she was left on the floor bound and gagged.
Anticipating that closing arguments would occur on this particular day, and, therefore, he would need the visual aid, the prosecutor brought this posterboard into the courtroom. The prosecutor placed this posterboard in the courtroom in the same vicinity where he had, on previous days during the trial, placed other Commonwealth exhibits, which included diagrams of streets and a house. When defense counsel saw the back of the posterboard (to which the photographs were affixed) from the vantage point of the defense table, defense counsel stated that he thought the posterboard was one of the Commonwealth's diagrams. Notes of Testimony ("N.T."), 3/15/95 at p. 93. The posterboard with the photographs was visible to the jury given the location where the prosecutor had placed it. The posterboard was viewable by the jury for approximately one hour before the defense counsel became aware of its true nature, whereupon the jury was excused from the courtroom, and a side bar conference was conducted. Defense counsel moved for a mistrial, which was denied. N.T., 3/15/95 at pp. 85-87. The Judge did order that the posterboard be removed from the view of the jury.
Appellant complains that the trial court erred in denying his motion for a new trial based upon prosecutorial misconduct. Appellant alleges that he was denied a fair trial due to the prosecutor's actions in placing the posterboard with the photographs within the view of the jury while the defense was putting on the testimony of one of its witnesses. The Appellant argues that such actions amounted to the prosecutor putting on evidence at the same time as the defense was attempting to put on evidence, and that this distracted the jury from the defense witness' testimony. The Appellant characterizes the prosecutor's actions as prosecutorial misconduct. Indeed, the Appellant alleges that the prosecutorial misconduct was so severe that its inescapable effect was to contaminate the entire decision making process and thus merits the reversal, not only of the first degree murder conviction, but also of the convictions of robbery and kidnapping as well.
The Commonwealth counters that the trial court did not abuse its discretion in denying the motion for a new trial. The Commonwealth asserts that the prosecutor did not engage in any misconduct and that the juror's view of photographs which were properly admitted into evidence and which were not inflammatory could not rise to the level of ...