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09/17/97 COMMONWEALTH PENNSYLVANIA v. THOMAS W.

September 17, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
THOMAS W. HAWKINS, JR., APPELLANT



Direct appeal from the Judgment of Sentence entered August 23, 1995 by the Court of Common Pleas, Montgomery County, Criminal Division, at No. 2012-90, sentencing appellant to death.

Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, Entered August 23, 1995, at No. 2012-90.

JUDGES BELOW: Hon. Paul W. Tressler.

Justice Castille. Mr. Justice Zappala files a Dissenting Opinion in which Mr. Chief Justice Flaherty joins.

The opinion of the court was delivered by: Castille

JUSTICE CASTILLE

DECIDED: September 17, 1997

On June 7, 1993, this Court reversed appellant's judgment of sentence of death in connection with the June 4, 1989 death of the victim, Andrea Nicole Thomas, and remanded the matter for a new trial. *fn1 After conducting a new trial, the jury again found appellant guilty of first degree murder *fn2 and indecent assault. *fn3 Following the penalty hearing on August 25, 1994, the jury found one aggravating circumstance *fn4 and no mitigating circumstances, and, as required by the law, set the penalty at death. *fn5 After the jury set the penalty, the trial court immediately imposed the jury's sentence of death. *fn6 On January 30, 1995, appellant's post-trial motions were denied by the trial court. This direct appeal followed. For the reasons expressed herein, we affirm the judgment of sentence imposed by the Court of Common Pleas of Montgomery County.

I. SUFFICIENCY OF THE EVIDENCE

As is required in all cases where the death penalty has been imposed, this Court must conduct a review of the sufficiency of the evidence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, 454 A.2d 937, 942 (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). When reviewing a sufficiency of the evidence claim, an appellate court, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt. Commonwealth v. Burgos, 530 Pa. 473, 476, 610 A.2d 11, 13 (1992). Using this standard, the record below establishes the following evidence:

On the morning of June 4, 1989, the victim, a fourteen (14) year old girl, was at the home where she lived with her grandparents (who were also appellant's parents) and an aunt in Stowe, Montgomery County, Pennsylvania. Sometime between 7:45 a.m. and 8:15 a.m., the victim was left home alone after her grandparents had earlier left for a vacation in Florida and her aunt had left for work.

Appellant admitted to the police that he arrived at the victim's house at approximately 9:00 a.m. in order to pick-up the keys to his father's automobile. When appellant arrived at the house, the doors were locked. Thus, appellant proceeded to climb through a window in order to gain access to the house. Appellant admitted to the police that once inside he found the victim inside the house. Appellant also admitted that he played and wrestled with the victim because she had teased appellant about a split in his pants and a hole in his underwear. Appellant told the police that he left the house at approximately 9:45 a.m. to go to his place of employment in King of Prussia, Pennsylvania. The manager of the bagel shop where appellant was employed in King of Prussia testified that although appellant was scheduled to begin work at 10:30 a.m. that morning, he did not arrive for work until 1:30 p.m.

At approximately 5:00 p.m. on that same day, the victim's aunt returned home from work. The aunt noticed that the front door was unlocked and that the living room was in disarray. After searching the house, the aunt discovered the victim's naked body and called the police.

The police arrived at the house shortly thereafter. The police observed that the victim's body was naked except for a brazier pulled up over one of her breasts. Upon searching the house, the police observed that the living room was in disarray with various kitchen items strewn about and that there was a plastic garbage bag on the living room floor. The police also found the set of car keys that the appellant claimed were the reason that he went to the house. The black and white dress that the victim was wearing that morning, the victim's bloody underwear, and various blood and fecal stains were also found at the scene.

A forensic pathologist's examination of the victim revealed that the victim's body had vaginal bruises, scrapes and tears consistent with sexual penetration. The pathologist also concluded that the victim's death was caused by strangulation by ligature consistent with that of a telephone extension cord found inside the house near where the victim was killed. The pathologist also noted that the victim had three stab wounds in her back which were consistent with a two-pronged fork found by investigators in the bathroom of the house. The pathologist concluded that the manner of death was a homicide and that death occurred sometime between 9:00 a.m. and 12:00 noon on June 4, 1989.

Certain items of physical evidence removed from the scene were processed which implicated appellant in the murder. Specifically, latent fingerprints were found on the plastic garbage bag found in the living room and those fingerprints were determined to match those of appellant. Also, the police recovered a black fiber from the dress the victim was wearing that day. A Federal Bureau of Investigations Agent testified that the black fiber found on the dress was consistent with the thread on the pair of black pants that appellant admitted wearing the day of the murder. Moreover, samples of saliva taken from the victim's breasts matched a saliva sample taken from appellant. A federal agent testified that the saliva which matched that of appellant statistically could have only belonged to one (1) out of every one hundred and forty-three (143) African Americans and one (1) out of every five hundred (500) Caucasians.

On September 21, 1989, by coincidence, police from another county were executing a search warrant at appellant's home in connection with an unrelated matter and the police observed eighty one detective magazines and books concerning investigative techniques used in crimes. The magazines and books had numerous pages folded and textual highlights. This evidence was turned over to Montgomery County detectives and introduced at appellant's trial by the Commonwealth in order to explain the scarcity of forensic evidence at the murder scene.

Finally, Malcolm Tucker and Michael Murphy, *fn7 two inmates who were incarcerated with appellant, testified at trial that appellant told them that the victim often teased him sexually and that according to appellant, "she asked for it, so I choked her and f///--d her brains out." The two inmates also testified that appellant told them that the police found his detective magazines with markings and that he marked the magazines so that he could profit from the mistakes made by others while he was committing crimes.

In first degree murder cases, the Commonwealth must prove that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing, and that the killing was done with deliberation. 18 Pa. C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). When there is no direct evidence of intent to kill, the fact-finder may glean the necessary intent from the act itself and from all surrounding circumstances. Commonwealth v. Meredith, 490 Pa. 303, 311, 416 A.2d 481, 485 (1980). Specific intent to kill can be proven where the defendant knowingly applies deadly force to the person of another. Id. Death caused by strangulation is sufficient to infer the specific intent required for a conviction of first degree murder. See Commonwealth v. Simmons, 541 Pa. 211, 227-28, 662 A.2d 621, 628-29 (1995), cert. denied, 133 L. Ed. 2d 870, 116 S. Ct. 945 (U.S. 1996) (evidence of manual strangulation of victim sufficient to establish specific intent required for first-degree murder).

Here, the evidence presented at trial showed that appellant himself admitted being in the victim's house during the time of the murder. Also, the physical evidence seized from the murder scene such as the fiber on the victim's dress, the fingerprint on the plastic garbage bag, and the saliva evidence from the victim's breast inculpated appellant with the murder. Moreover, two inmates incarcerated with appellant testified about incriminating statements appellant made to them admitting the murder. Finally, the victim's body showed that her death was caused by strangulation with a telephone extension wire similar to one found in the victim's house. Accordingly, we find that this evidence is sufficient to establish that appellant acted with malice aforethought and with the specific intent to kill the victim. See Simmons, 541 Pa. at 228-29, 662 A.2d at 630 (circumstantial evidence which established that defendant had access to the victim's home; was placed at the victim's home during the time of the murder; was linked to the murder scene by physical evidence; and told others of the murder was sufficient to support guilty verdict against defendant for first degree murder).

II. WEIGHT OF THE EVIDENCE

Appellant contends that his conviction was against the weight of the evidence because of conflicts and inconsistencies in the testimony and the evidence presented at trial. Inconsistencies noted by appellant include: (1) that the presence of his fingerprints at the crime scene would not be unusual since the evidence came from his parent's house; (2) appellant's forensic expert testified that there was a mixture of saliva on the victim's left breast which would indicate that appellant was not involved with the crime; and (3) appellant's two alibi witnesses established that appellant was at his Philadelphia residence within a time frame consistent with appellant's statement that he left his parent's house on the day of the murder at 9:45 a.m.

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104 (1984). An appellate court cannot substitute its judgment for that of the finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Thus, we can only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of Justice. Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155 (1986).

After examining the evidence in this case, we find that appellant's assertion that the inconsistencies in the evidence resulted in a verdict that shocked one's conscience to have no merit since the inconsistencies claimed are only minor and the witness' credibility is solely for the jury to determine. See Simmons, 541 Pa. at 229-30, 662 A.2d at 630 (verdict not against weight of evidence where matters complained of amounted to nothing more than minor inconsistencies in testimony and claims of credibility). Thus, after examining the evidence in this case, we find nothing to support appellant's assertion that his conviction was against the weight of the evidence. Accordingly, this claim is rejected.

III. DOUBLE JEOPARDY

Before appellant was retried, he filed a motion to preclude a new trial based on double jeopardy because of prosecutorial misconduct which appellant asserts was intended to invoke either a mistrial or to deny a fair initial trial. Specifically, appellant alleges that the Commonwealth engaged in misconduct by violating Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), when it failed before his first trial to disclose the nature of agreements it had reached with Michael Murphy and Malcolm Tucker whereby these witnesses would receive favorable sentencing treatment in exchange for their testimony in appellant's trial. Appellant also alleges that prosecutorial misconduct occurred in the first trial when the Commonwealth made repeated references during its closing argument that appellant had failed to prove that someone else committed the murder.

Under the double jeopardy clause of the Pennsylvania Constitution, *fn8 a defendant cannot be retried if prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial or if the conduct of the prosecutor is intentionally undertaken to prejudice a defendant so that he does not receive a fair trial. Commonwealth v. Smith, 532 Pa. 177, 186, 615 A.2d 321, 325 (1992). In order to raise double jeopardy implications, the prosecutor's misconduct must have been deliberate, undertaken in bad faith and with a specific intent to deny the defendant of a fair trial. Commonwealth v. Chambers, 546 Pa. 370, 380, 685 A.2d 96, 101 (1996).

Appellant first contends that double jeopardy should apply because the Commonwealth intended to deprive him of a fair trial by violating Brady, (supra) , when it failed to disclose the existence of agreements with the two inmates who testified about inculpatory statements appellant made about the murder while in prison. Appellant contends that the failure to fully disclose these agreements deprived him of crucial impeachment evidence at his first trial.

As to Michael Murphy, he pled guilty before appellant's first trial to charges of burglary and risking a catastrophe. On June 27, 1990, Murphy received a sentence of eighteen (18) to thirty-six (36) months imprisonment for the risking a catastrophe charge and five (5) years probation for the burglary charge. The Commonwealth agrees that this particular sentence falls below the relevant sentencing guidelines. However, the trial Judge who sentenced Murphy testified at a pre-trial hearing that he was unaware at the time of sentencing that Murphy was a potential witness in appellant's first trial which was scheduled to begin in August of the same year. Instead, the trial Judge testified that he imposed a sentence below the guidelines because he found three mitigating factors present. *fn9 Also, the Commonwealth has consistently represented that it did not enter into any plea agreement and that it has no material in its files pertaining to any such plea agreement. See Commonwealth v. Colson, 507 Pa. 440, 462, 490 A.2d 811, 822 (1985), cert. denied, 476 U.S. 1140, 90 L. Ed. 2d 692, 106 S. Ct. 2245 (1986) (Commonwealth does not violate disclosure requirements of Brady by failing to disclose evidence that it does not have and of which it is not aware). Under these circumstances, we decline to find that prosecutorial misconduct occurred based on a Brady violation since appellant offers nothing other than his mere conjecture that such an arrangement existed. Thus, appellant's double jeopardy claim based on the Commonwealth's failure to disclose a lenient plea agreement with Murphy must fail.

As to Malcolm Tucker, he was convicted before appellant's first trial for the rape of his two daughters. The trial Judge in this matter sub judice was also the trial Judge who sentenced Tucker to sixteen (16) to thirty-five (35) years imprisonment before appellant's first trial. The trial Judge stated on the record in this matter that he was unaware that at the time he sentenced Tucker, that Tucker was to be a witness in appellant's first trial. The trial Judge also stated that this sentence exceeded the aggravated range under the sentencing guidelines. Moreover, the Commonwealth has consistently maintained that it has no record reflecting any plea agreement with Tucker and that it never promised Tucker leniency in return for his testifying against appellant. Under these circumstances, we decline to find that prosecutorial misconduct based on a Brady violation occurred since appellant again offers nothing other than mere conjecture that such an arrangement existed. Thus, appellant's double jeopardy claim based on the Commonwealth's failure to disclose a leniency agreement with Tucker must fail.

Appellant also argues that the trial court erred in denying his double jeopardy motion on the grounds that comments by the prosecutor at his first trial improperly shifted the burden of proof onto appellant and that these comments were made with the intention of denying appellant a fair trial. During opening statements, appellant's counsel stated that the defense would prove that someone other than appellant murdered the victim. After no such evidence was presented by the defense at appellant's first trial, the prosecutor made the following statement concerning appellant's failure to prove this fact:

Now, if you believe that I have proven those things, then I'm going to suggest to you that you convict the defendant. If I didn't prove those things, and Mrs. Brown [appellant's trial counsel] has proven the things that she said she'd prove, I suggest to you that you acquit the defendant. But let's look at what was proven and what was not. Now, Mrs. Brown gave an opening statement. Now remember what we say is not evidence, and if I say something is a fact, and you don't believe its a fact, then your recollection is what controls, not mine. . . Now, what did Mrs. Brown say? She promised you members of the jury, she promised you that she would prove that someone else committed this crime. Who? She has not given you one other possible person who committed this crime, not one. And she promised you that she would and she failed.

(N.T. 8/14/90 at 62-64).

Generally, comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be 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. Commonwealth v. D'Ambro, 500 Pa. 303, 309-10, 456 A.2d 140, 144 (1983). Prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair. Commonwealth v. Marshall, 534 Pa. 488, 509, 633 A.2d 1100, 1110 (1993). Moreover, allegedly improper comments by a prosecutor must be examined within the context of defense counsel's conduct. Commonwealth v. Clayton, 516 Pa. 263, 284, 532 A.2d 385, 396 (1987), cert. denied, 485 U.S. 929, 99 L. Ed. 2d 261, 108 S. Ct. 1098 (1988).

Here, the prosecutor's comments were in response to appellant's counsel's statement that she was going to prove that someone other than the appellant committed the murder. Having "opened the door" to this subject, appellant cannot now complain because the prosecutor chose to further comment on what was behind that door. See Commonwealth v. Yarris, 519 Pa. 571, 597, 549 A.2d 513, 526 (1988), cert. denied, 491 U.S. 910, 105 L. Ed. 2d 708, 109 S. Ct. 3201 (1989) (prosecution's inquiry as to why defendant's good friend, with whom defendant testified he allegedly spent the day of the murder, did not testify, did not impermissibly shift burden of proof to defendant); Commonwealth v. Jubilee, 403 Pa. Super. 589, 594, 589 A.2d 1112, 1114, appeal denied, 529 Pa. 617, 600 A.2d 534 (1991) (prosecutor's challenge to defense failure to produce witness mentioned in defense opening statement not improper). Also, any prejudicial effect from the prosecutor's statement was cured by the trial court's general cautionary instruction to the jury following closing arguments that none of the closing arguments were evidence and that the Commonwealth always bore the burden of proof and that the defendant did not have to prove that he is not guilty. Our law presumes that juries follow the court's instructions as to the applicable law. See Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672 (1992). Thus, because the prosecutor's comments at the first trial were neither improper nor denied appellant of a fair trial, we conclude that the trial court correctly denied appellant's double jeopardy motion on this ground.

IV. CHANGE OF VENUE

Appellant next argues that the trial court erred in refusing to grant his motion for a change of venue because of prejudicial pre-trial publicity. Appellant contends that the pre-trial publicity concerning this murder, appellant's first trial for this murder and appellant's prior criminal record was so sustained, pervasive, inflammatory and inculpatory from the date of his arrest to the time of his trial that a change of venue was required even without the need to show any actual prejudice. *fn10 We disagree.

The determination of whether to grant a change of venue rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Rucci, 543 Pa. 261, 283, 670 A.2d 1129, 1140 (1996). As a general rule, appellant must demonstrate that pre-trial publicity resulted in actual prejudice that prevented the impaneling of an impartial jury. Id. In order for pre-trial publicity to be presumptively prejudicial, the publicity must: (1) be sensational, inflammatory, slanted towards conviction rather than factual and objective; (2) have revealed that the accused had a prior criminal record or referred to confessions, admissions or reenactments of the crime by the accused; or, (3) have been derived from reports from the police and prosecuting officers. Commonwealth v. Gorby, 527 Pa. 98, 108, 588 A.2d 902, 906 (1991). However, even if one of these elements exists, a change of venue will not be necessary where there has been a sufficient time between the publication and the trial for the prejudice to dissipate. Commonwealth v. Pursell, 508 Pa. 212, 221, 495 A.2d 183, 187 (1985).

Although some of the articles which appellant attaches to his brief do refer to appellant's prior criminal history, we cannot conclude that the publicity was so extensive, sustained and pervasive that the community must have been deemed to be saturated to the point that the impaneling of a impartial jury was impossible. This is especially true in this matter because the trial court fortuitously issued a gag order nine months before the start of this trial directing the parties from discussing the case in the press. This order had the effect of producing a "cooling off period" in the pre-trial publicity. The articles appellant attaches to his brief were published near the voir dire phase of this trial and were factual in nature rather than containing prejudicial or inflammatory material slanted against appellant. See Pursell, (supra) (six month "cooling off" period from last prejudicial publicity and trial sufficient to dissipate any prejudice engendered by such publicity).

Moreover, our independent review of the seven hundred and eighty-four (784) pages of extensive voir dire examination wherein ninety-five (95) jurors were questioned demonstrates that a change of venue was not required. Of the 95 potential jurors examined, two (2) venirepersons had a detailed knowledge of this case that caused them to form a fixed opinion of appellant, thirteen (13) venirepersons had such a small amount of knowledge that they had no fixed opinions as to appellant's guilt or innocence, and the remaining eighty (80) venirepersons had no knowledge of this case at all. Of the twelve (12) jurors and four (4) alternates selected for appellant's trial, only one person possessed even a small amount of knowledge of appellant's case and that person testified that what little she knew would not affect her ability to be fair and impartial. The results of the voir dire examination lead us to conclude that the community was not saturated to the point that an impartial jury could not be impaneled. See Gorby, 527 Pa. at 109, 588 A.2d at 907 (no proof of presumptive prejudice even though 34 out of 70 potential jurors knew something about the case). Thus, we cannot conclude that the trial court abused its discretion in denying appellant's motion for a change of venue. Accordingly, this claim is rejected.

V. SUPPRESSION OF INFORMANTS' TESTIMONY

Appellant next argues that the trial court erred by not suppressing the inculpatory statements related by appellant to Tucker and Murphy, two inmates incarcerated with appellant, on the grounds that the statements were obtained in violation of appellant's Sixth Amendment right to counsel as guaranteed by the United States Constitution. Appellant asserts that his Sixth Amendment rights were violated because Tucker and Murphy were acting as agents of the police when they questioned appellant about the murder without appellant's legal counsel being present.

Our standard or review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal Conclusions drawn from those facts are correct. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985). When reviewing rulings of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal Conclusions drawn therefrom are in error. Cortez, 507 Pa. at 532, 491 A.2d at 112.

Information secured by an informant acting as an agent of the government must be suppressed where the informant acts under instructions as an informant for the government, where he presents himself as no more than a fellow inmate rather than a governmental agent, and where the suspect is in custody and under indictment at the time of the questioning by the informant because such questioning outside the presence of the accused's counsel violates the accused's Sixth Amendment right to counsel. Commonwealth v. Berkheimer, 501 Pa. 85, 88, 460 A.2d 233, 234 (1983). In order to prove such a violation, the defendant must demonstrate that the police and the informant took some action, beyond mere listening, which was designed deliberately to elicit incriminating remarks. Kuhlmann v. Wilson, 477 U.S. 436, 459, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). Moreover, the defendant must show that the informant was acting as an agent of the government. Individual acts do not become imbued with the character of governmental action merely because they are later relied upon and used by the government in furtherance of governmental objectives. Commonwealth v. Corley, 507 Pa. 540, 547, 491 A.2d 829, 832 (1985).

Here, the trial court found that the police some time before May 4, 1990 interviewed the inmates in appellant's cell block regarding any information they may have overheard from defendant. On May 4, 1990, inmate Murphy, not acting under any agreement with the police, initiated his first contact with Montgomery County detectives. On May 5, 1990, appellant himself approached inmate Tucker to ask Tucker about aiding appellant in his murder defense since Tucker was previously a private investigator with contacts outside of prison. Tucker had a Discussion with appellant in which appellant made incriminating statements about the murder. Tucker obtained this information by asking appellant questions. Murphy, who was in the cell next to appellant, never asked appellant any questions and only testified at appellant's trial about the conversation he overheard between appellant and Tucker. The trial court found that neither Tucker nor Murphy were promised anything by the Montgomery County detectives for their cooperation. The trial court also found that neither Tucker nor Murphy were given any information by the police concerning the murder which would have enhanced their ...


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