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08/20/97 COMMONWEALTH PENNSYLVANIA v. ANTHONY

August 20, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ANTHONY WASHINGTON, APPELLANT



Appeal from the Judgment of Sentence entered on December 9, 1994 in the Court of Common Pleas of Philadelphia County at Nos. 9312-1037-1055. JUDGES BELOW: Hon. John J. Poserina, Jr.

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

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

On October 11, 1994, following a jury trial, Appellant Anthony Washington was found guilty of first-degree murder for the killing of Tracey Lawson. The jury returned a verdict of death, and on December 9, 1994 the trial court formally imposed the death sentence. This direct appeal followed. For the reasons presented herein, we affirm the judgment of sentence.

Although Appellant does not challenge the sufficiency of the evidence, this Court is required in capital cases to review the record to determine whether the Commonwealth has established 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, 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 conducting such a review, we must view 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, 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, 438, 672 A.2d 293, 297 (1996). Further, the specific intent to kill may be inferred from the defendant's use of a deadly weapon upon a vital part of the victim's body. See Michael, 544 Pa. at 111, 674 A.2d at 1047; Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).

The relevant facts are as follows. On the evening of January 23, 1993, Appellant and his co-defendant, Derrick Teagle, drove to a Sav-A-Lot supermarket in Philadelphia with the intention of robbing it. Both men were armed with handguns, but Teagle's was not functioning due to a broken firing mechanism.

Pretending to be customers, Appellant and Teagle entered the store. Teagle bought a bag of potato chips. Stating that they were in search of employment, Appellant and Teagle then asked to see the store manager, Anne Marie Buchanan. When Buchanan told them she had no job application forms, the men left the store.

A few minutes later, they returned. Teagle pointed his gun at Buchanan, and Appellant ordered her to open the store's safe. Teagle then went to empty the cash registers. At this point, Juana Robles, a customer, attempted to leave the store. Appellant pointed his gun at her and ordered her not to leave.

Tracey Lawson, the store's unarmed security guard, was in the parking lot. When he saw the robbery taking place, he pulled down the metal grating that secures the entrance to the store during non-business hours. Appellant and Teagle, however, noticed this happening. They ran to the entrance, lifted the grating and entered the parking lot.

Lawson went into a nearby store and alerted the store's manager and the security guard, Gerard Smith, who was an off-duty police officer. All three men then ran into the parking lot, where Smith ordered Appellant and Teagle to halt. As he and Teagle fled, Appellant fired his weapon at Smith, who fired back. Lawson then began to chase after Appellant. When he saw Lawson pursuing him, Appellant turned and fired, hitting Lawson in the head. Appellant and Teagle then left the scene. Lawson died in the hospital three days later.

Teagle eventually surrendered to police and gave a statement regarding the incident. Appellant, however, remained a fugitive until police received an anonymous tip disclosing his whereabouts. On April 19, 1993, the arresting officers proceeded to the address provided by the tip. When Appellant answered the door, the officers stated that they had an arrest warrant for him for murder. Appellant claimed that he was not Anthony Washington. The officers responded by showing Appellant an eight-by-ten inch photograph of himself. At that point, Appellant admitted that he was indeed Anthony Washington and submitted to the arrest. See N.T., 10/6/94, at 52-55.

At trial, Appellant's brother, Elijah Washington, testified that on the night of the robbery, he was called to the home of Mimi Miller, where Appellant and Teagle were located. Appellant told Elijah to drive Teagle home because the police might be looking for Appellant and Teagle. See N.T., 10/5/94, at 42-43.

Sometime after the shooting, Appellant telephoned his friend Levon Robinson. Robinson was dating Martha Harrington. Appellant was dating Martha's sister, Melissa Harrington. As Appellant spoke to Robinson, Martha listened in on their conversation through an extension telephone. She testified at trial that Appellant told Robinson that he had shot someone at Sav-A-Lot and that he was going to go to Maryland. See N.T., 10/4/94, at 10-11. After Appellant's conversation with Robinson, Martha saw Appellant at the home of another of her sisters, Sharon Harrington. At Sharon's house, Appellant told Martha that he shot a security guard during the robbery. See id. at 12-13.

Melissa Harrington testified that Appellant told her over the phone and in person that he had robbed the Sav-A-Lot and shot a security guard. See id. at 35-37. She further testified that she visited Appellant in prison and he told her to lie on the stand and tried to "school [her] on things to say." Id. at 56-57.

Juana Robles was a customer in the Sav-A-Lot at the time of the robbery. She testified at trial and identified Appellant as the man who had pointed a gun at her near the entrance to the Sav-A-Lot and ordered her not to leave the store. See N.T., 9/29/94, at 107-11. She could not positively identify Appellant in a line-up on August 18, 1993, but was able to do so at trial. See id. at 112-14.

Suphea Phongsak was working as a cashier in the Sav-A-Lot when the robbery occurred. She identified Teagle at a line-up and at trial as the man who had emptied her cash register at gunpoint. See N.T., 9/30/94, at 78-79. She testified that she saw another man at the safe with the manager Anne Marie Buchanan. She had given a description of this man to police, stating among other things that he was wearing a three-quarter length green leather jacket. Martha Harrington's testimony established that Appellant owns a jacket matching Phongsak's description. See N.T., 10/4/94, at 19. At a line-up on August 18, 1993, however, Phongsak could not identify Appellant as the man she saw near the safe. See N.T., 9/30/94, at 103-04.

Gerard Smith, the off-duty police officer, identified Appellant from a photo array six weeks after the shooting. He also identified Appellant at a line-up, at the preliminary hearing, and at trial. See N.T., 10/3/94, at 69, 89-95.

Finally, ballistics evidence established that the bullet that killed Tracey Lawson was not fired from Officer Smith's weapon. See N.T., 10/5/94, at 131-32.

This evidence is sufficient to establish that Appellant shot Lawson and did so with the specific intent to kill. Thus, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the jury could have found each element of an intentional killing beyond a reasonable doubt. See 18 Pa. C.S. § 2502(a), (d) (1983); Wilson, 543 Pa. at 438, 672 A.2d at 297.

Appellant and Teagle were tried jointly. *fn1 On October 11, 1994, the jury found Appellant guilty of first-degree murder, *fn2 robbery, *fn3 simple assault, *fn4 possessing an instrument of crime, *fn5 and criminal conspiracy. *fn6 After a penalty hearing, the jury found that one aggravating circumstance *fn7 outweighed one mitigating circumstance. *fn8 The jury therefore returned a verdict of death, which the trial court formally imposed on December 9, 1994. *fn9 Appellant then directly appealed to this Court. *fn10

Appellant first argues that the trial court abused its discretion by denying his motion to sever his trial from Teagle's. *fn11 Appellant claims that he was prejudiced by the admission of Teagle's redacted confession because it "contextually implicated" him in the killing and therefore violated Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).

In Bruton, the U.S. Supreme Court held that the introduction at trial of a non-testifying co-defendant's confession describing the defendant's participation in a crime deprives the defendant of his rights under the Confrontation Clause of the Sixth Amendment. It is well-settled, however, that no Bruton violation occurs if the co-defendant's statement is redacted to remove any specific references to the defendant and if a proper limiting instruction is given. See Richardson v. Marsh, 481 U.S. 200, 211, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987); Commonwealth v. Jones, 542 Pa. 464, 495-96, 668 A.2d 491, 506 (1995). In the instant case, the word "Blank" was substituted for any reference to Appellant in Teagle's statement. Further, prior to the introduction of the statement, the trial court instructed the jury that it was to consider the statement as evidence only against Teagle. See N.T., 10/6/94, at 64-65. The court then repeated this instruction in its jury charge. See N.T., 10/11/94, at 16. Thus, the introduction of Teagle's statement did not violate Bruton.

Despite this, Appellant suggests that he suffered prejudice nonetheless because the jury, viewing the redacted confession in light of the other evidence connecting Appellant to the murder, could have inferred that the unnamed individual mentioned in the confession was actually Appellant. In other words, Appellant contends that he was prejudiced as the result of a Bruton violation occurring through contextual implication.

We realize that contextual implication can impact a defendant's rights under the Confrontation Clause. However, reversible error does not necessarily result from every infringement of a defendant's right to confront witnesses against him. Review under the harmless error standard set forth in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) is appropriate in such circumstances. See Bond, 539 Pa. at 312, 652 A.2d at 314. Under Story, an error is harmless if it could not have contributed to the verdict because the erroneously admitted evidence is merely cumulative of substantially similar, properly admitted evidence. See Story, 476 Pa. at 411, 383 A.2d at 165. In the instant case, even assuming that the admission of Teagle's redacted statement infringed upon Appellant's rights under the Confrontation Clause, the error was indeed harmless and did not prejudice Appellant. Any evidence of Appellant's involvement in the shooting that could be inferred from Teagle's confession was merely cumulative of other, properly admitted evidence indicating his guilt. Officer Smith was an eyewitness to the shooting of Tracey Lawson. He identified Appellant as the shooter in a photo array, at a line-up, at the preliminary hearing, and at trial. Juana Robles also identified Appellant at trial as the shooter. Both Martha and Melissa Harrington testified that Appellant admitted to them that he had committed the killing in the course of robbing the Sav-A-Lot. Further, Elijah Washington testified that on the night of the shooting, Appellant asked him to drive Teagle home because the police might be looking for Appellant and Teagle. Also, when arrested, Appellant tried to deceive the arresting officers and submitted to the arrest only after a photograph clearly indicated that the officers were not mistaken in their identification. Finally, the ballistics evidence indicated that the bullet that killed Lawson did not come from Officer Smith's handgun.

Thus, even assuming that a Bruton violation occurred, it was harmless error in light of the properly admitted evidence clearly establishing Appellant's guilt. See Commonwealth v. Chestnut, 511 Pa. 169, 174-75, 512 A.2d 603, 605-06 (1986); Story, 476 Pa. at 411, 383 A.2d at 165.

In light of this, and considering the trial court's instructions to the jury, Appellant has failed to demonstrate that he was prejudiced by the denial of his motion to sever. Accordingly, we find no abuse of discretion on the part of the trial court. See Commonwealth v. Wharton, 530 Pa. 127, 142, 607 A.2d 710, 717-18 (1992).

In a related claim, Appellant argues that the prosecution engaged in misconduct during closing argument by using Teagle's statement to establish Appellant's guilt. Appellant is essentially arguing that he was unduly prejudiced by the prosecution's "breaking" of redaction during closing argument.

This claim is without merit. The prosecutor is allowed to vigorously argue his case so long as his comments are supported by the evidence or constitute legitimate inferences arising from that evidence. See Commonwealth v. LaCava, 542 Pa. 160, 181, 666 A.2d 221, 231 (1995); Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980). In considering a claim of prosecutorial misconduct, our inquiry "is centered on whether the defendant was deprived of a fair trial, not deprived of a perfect one." LaCava, 542 Pa. at 181, 666 A.2d at 231 (citing Commonwealth v. Holloway, 524 Pa. 342, 353, 572 A.2d 687, 693 (1990)). Thus, a prosecutor's remarks do not constitute reversible error unless their "'unavoidable effect . . . [was] to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.'" Bond, 539 Pa. at 314, 652 A.2d at 315 (quoting Commonwealth v. ...


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