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08/20/97 COMMONWEALTH PENNSYLVANIA v. JOSEPH

August 20, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSEPH ELLIOTT, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered December 8, 1994, at Nos. 1091 1095. JUDGE(S) BELOW: Hon. Paul Ribner.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Zappala files a Concurring opinion. Mr. Justice Cappy concurs in the result.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

DECIDED: August 20, 1997

On October 28, 1994, following a jury trial, Appellant Joseph Elliott was found guilty of first-degree murder for the killing of Kimberly Griffith. The jury returned a verdict of death, and on December 8, 1994, the trial court formally imposed the death sentence. This direct appeal followed. For the reasons presented herein, we affirm the judgment of sentence.

In all capital cases, this Court is obliged to conduct an independent review of the record to determine whether the Commonwealth has established each of the elements necessary to sustain a conviction for first-degree murder. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n.3, 454 A.2d 937, 942 n.3 (1982), cert. denied, 461 U.S. 970, 77 L. Ed. 2d 1327, 103 S. Ct. 2444 (1983), reh'g denied, 463 U.S. 1236, 77 L. Ed. 2d 1452, 104 S. Ct. 31 (1983). In conducting such a review, we must examine the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner and determine whether the jury could find every element of the crime beyond a reasonable doubt. See Commonwealth v. Michael, 544 Pa. 105, 110-111, 674 A.2d 1044, 1047 (1996). To obtain a conviction for first-degree murder, the Commonwealth must prove that a human being was unlawfully killed; that the defendant did the killing; and that the killing was done intentionally. See 18 Pa. C.S. § 2502(a), (d) (1983); Commonwealth v. Wilson, 543 Pa. 429, 437-439, 672 A.2d 293, 297 (1996).

The relevant facts are as follows. At approximately 2:30 a.m. on May 7, 1992, Frank Nardone and Appellant, a black male, went to Purgatory, an after-hours nightclub in Philadelphia. Kimberly Griffith, a twenty-seven year old white female who worked at the club as a part-time bartender, was present with a friend. Appellant, Nardone, and Griffith, all of whom knew each other, *fn1 began to socialize.

At approximately 4:00 a.m., Griffith accompanied Nardone and Appellant to Nardone's house. Once there, Appellant and Griffith ingested cocaine in Nardone's kitchen and bedroom. Appellant and Nardone then began giving Griffith a massage. Nardone, however, was intoxicated and soon passed out. At 1:30 p.m. that afternoon, Nardone awoke and discovered Griffith's naked and battered body lying on a couch in his living room. After Nardone and a neighbor determined that she was dead, they summoned the police. Later that day, the body was taken to the Medical Examiner's office. An autopsy indicated that Griffith had died of strangulation, performed manually and with a cord, *fn2 and had been beaten and dragged along the floor. The examination also revealed injuries to the vagina and anus, indicating forced sexual penetration. See N.T., 10/25/94, at 90-92, 101-03. Analysis of sperm found in the victim's vagina indicated that the sperm could not have come from Nardone, but could have come from Appellant. See N.T., 10/24/94, at 145. At trial, the medical examiner stated that Griffith had survived for thirty to sixty minutes after the onset of the attack. See N.T., 10/25/94, at 103, 105. The medical examiner also stated that the death had occurred between 5:00 a.m. and approximately 9:00 a.m. See N.T., 10/27/94, at 128, 143.

After speaking with Nardone on May 7, 1992, the police interviewed Appellant. He stated that he had had consensual sex with Griffith after Nardone fell asleep. He also stated that the victim was alive when he left Nardone's house. During the interview, police observed scratch marks on Appellant's arms and body and a bruise in the shape of a straight line on the back of his right hand. He explained that one of the scratches was made by Griffith while he was having sex with her. He could not explain the others. See N.T., 10/24/94, at 193-94. At trial, Appellant indicated that he left the nightclub with Nardone and the victim around 4:00 a.m. and that he left Nardone's house at approximately 10:00 a.m. See N.T., 10/26/94, at 140, 184.

Also at trial, Lynn Cardinal, Barbera Gogos, and Iris Berson testified concerning prior, unrelated sexual and physical assaults inflicted upon them by Appellant. Each of these women are white and in their twenties. They were each attacked by Appellant in the early morning hours, and all had similar violence inflicted upon them. See N.T., 10/25/94, at 116-30; 10/26/94, at 3-22, 69-83.

We find this evidence sufficient to demonstrate that Appellant beat and strangled Griffith and did so with the specific intent to kill. Thus, the jury could have found each element of first-degree murder beyond a reasonable doubt. See 18 Pa. C.S. § 2502(a), (d) (1983); Wilson, 543 Pa. at 437-439, 672 A.2d at 297.

On October 28, 1994, Appellant was found guilty of first-degree murder, *fn3 rape, *fn4 and involuntary deviate sexual intercourse ("IDSI"). *fn5 After a penalty hearing, the jury found two aggravating circumstances and no mitigating circumstances. *fn6 The jury therefore returned a verdict of death, which the trial court formally imposed on December 8, 1994. *fn7 This direct appeal followed. *fn8

Appellant now raises, inter alia, a specific insufficiency of the evidence claim. He contends that a new trial is required because the evidence presented was insufficient to establish that the deceased individual in this case was indeed Kimberly Griffith. *fn9 He suggests that without this identification evidence the Commonwealth has failed to demonstrate that Griffith is in fact dead or that the body autopsied by the medical examiner was Griffith's. *fn10 He then claims that, a fortiori, the evidence is insufficient to establish that he committed a murder. This claim is meritless. As noted above, after a thorough review of the record, we have concluded that the evidence was sufficient to allow the jury to find each element of first-degree murder beyond a reasonable doubt. Moreover, at trial, the preliminary hearing testimony of Frank Nardone was read into evidence. *fn11 In that testimony, Nardone identified the body he discovered in his living room as that of Kimberly Griffith. See N.T., 10/24/94, at 230-32, 239. Further, there was testimony concerning both the transportation of Griffith's body from the crime scene to the Medical Examiner's office and regarding the autopsy performed on her remains. See N.T., 10/24/94, at 130-31; 10/25/94, at 85-106. Moreover, Appellant himself testified that he knew the victim as "Kim" prior to the date of the killing, and that he had known her for five or six years. See N.T., 10/19/94, at 92. This evidence is clearly sufficient to establish both that the decedent in this case was Kimberly Griffith and that the body viewed by the medical examiner was Griffith's. Appellant's claim fails.

Next, Appellant argues that the trial court abused its discretion by admitting evidence of Appellant's assaults on Lynn Cardinal, Barbera Gogos, and Iris Berson. *fn12

First, he claims that the prosecution violated discovery rules by not disclosing its intention to use this evidence until the day the trial commenced, resulting in unfair surprise. We disagree. Defense counsel filed a discovery request pursuant to Pa. R. Crim. P. 305(B). See N.T., 10/25/94, at 21-25. Rule 305(B)(1) states, in pertinent part: "In all court cases, on request by the defendant, . . . the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. . . ." The Rule then sets out the seven categories of evidence that this language applies to. *fn13 The names and statements of prior assault victims such as Cardinal, Gogos, and Berson do not fall within any of these categories. See Pa. R. Crim. P. 305(B)(1)(a)-(g). Accordingly, the Commonwealth was not required under Rule 305(B)(1) to supply that information, even if defense counsel had requested it. *fn14

In any event, defense counsel learned of the Commonwealth's planned use of the evidence in question approximately one week before Cardinal, Gogos, or Berson testified. See N.T., 10/18/94, at 8-9, 41-44. Moreover, Appellant's assault on Lynn Cardinal led to a trial and conviction for indecent assault and related crimes. *fn15 Defense counsel in the instant case also represented Appellant at that trial, during which the evidence of his assaults on Gogos and Berson was admitted over counsel's objection. See N.T., 10/24/94, at 20-22; Trial Ct. Op. at 3-4. Given that counsel had prior knowledge of the incidents in question by virtue of his previous representation of Appellant, we cannot conclude that the trial court abused its discretion in admitting the complained-of evidence.

Appellant also challenges the trial court's substantive ruling on admissibility. He suggests that the prior assaults were not sufficiently similar to the instant case to justify their admission to show common scheme, plan, or design.

Generally, evidence of criminal activity unrelated to the offense in question is inadmissible against a defendant. See Commonwealth v. LaCava, 542 Pa. 160, 176, 666 A.2d 221, 228-29 (1995); Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). However, such evidence may be admitted as proof of a common scheme, plan, or design where the crimes are so related that proof of one tends to prove the others. See Commonwealth v. Hughes, 521 Pa. 423, 458, 555 A.2d 1264, 1282 (1989); Billa.

The three prior assaults at issue were sufficiently similar to the attack in this case to permit their introduction at trial. Lynn Cardinal, a white woman in her twenties, testified that at approximately 3:00 a.m. on November 1, 1992, Appellant approached her at a bus stop and asked if he knew her from the Purgatory club. He then told her that she was unsafe due to the presence of several black teenagers at the bus stop. He persuaded Cardinal to walk to his house, telling her that he would call his sister to drive her home. Once inside the house, Appellant threatened Cardinal with a knife, choked her, ordered her to undress, and announced his intention to perform oral sex upon her. When Cardinal refused, Appellant banged her head into the floor several times. He ultimately undressed her and inserted a finger into her vagina. See N.T., 10/26/94, at 69-82.

Barbera Gogos, a white female in her twenties, testified that sometime after 2:00 a.m. on December 1, 1991, she met Appellant at Purgatory and offered him a ride home. Appellant persuaded Gogos to accompany him to the third floor of a building in West Philadelphia where Appellant intended to purchase drugs. Once inside the room, Appellant threatened Gogos with a knife, forced her to ingest methamphetamine, choked her, partially undressed her, and stated that he intended to sodomize her. See N.T., 10/26/94, at 3-20.

Iris Berson, also white and in her twenties, testified that at approximately 4:30 a.m. on March 31, 1992 she left the Purgatory club. When she stopped to take her purse from the trunk of her car, Appellant grabbed her from behind and called her a "white bitch" and a "white cunt." He then punched her in the face and groin, knocking her ...


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