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September 17, 1997


Direct appeal from the Judgment of Sentence entered October 29, 1994 by the Court of Common Pleas, Chester County, Criminal Division, at No. 29-94, sentencing appellant to death.

JUDGES BEFORE: Hon. Paula Francisco Ott.

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

The opinion of the court was delivered by: Castille


DECIDED: September 17, 1997

Following a jury trial, appellant was found guilty of first degree murder, *fn1 carrying a firearm without a license, *fn2 robbery, *fn3 conspiracy to commit robbery, *fn4 and recklessly endangering another person *fn5 in connection with the December 18, 1993 death of Donald Johnson. The jury acquitted appellant of conspiracy to commit murder. Following the penalty hearing, the jury found that two aggravating circumstance *fn6 outweighed the one mitigating circumstance, *fn7 and set the penalty at death. On November 7, 1994, the trial court imposed the jury's sentence of death. *fn8 This direct appeal followed. For the reasons expressed herein, we affirm the judgment of sentence imposed by the Court of Common Pleas of Chester County.


Appellant first claims that the evidence was insufficient to support the jury's verdict that he was guilty of first degree murder. When reviewing a sufficiency of the evidence claim, an appellate court must view all the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth as the verdict winner in order to 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:

At approximately 10:00 a.m. on December 18, 1993, Troy Davis, Tyrone Greene and appellant departed Philadelphia by automobile for Coatesville in Chester County, Pennsylvania *fn9 with the intent of committing a robbery in Coatesville. Appellant and his cohorts arrived in Coatesville at approximately 12:00 noon. Upon arriving in Coatesville, the three men decided to rob a laundromat on Main Street. Appellant and Greene proceeded into the laundromat while Davis waited in the car as the getaway driver. Appellant, armed with a loaded .357 caliber magnum revolver, went to the cashier's area in the rear of the laundromat while Greene, armed with a .22 caliber revolver, stayed near the front entrance to the laundromat. Appellant withdrew his revolver and demanded that the victim give him the money from the laundromat. After the victim refused to give appellant the money, appellant fired a shot which grazed the victim's head. Appellant then fired another shot from a distance of approximately four (4) to ten (10) inches which entered the back portion of the right side of the victim's head and traversed through the victim's brain causing instantaneous death. When appellant fired the fatal shot, his .357 caliber revolver was in double action firing mode, which would require nine pounds of pressure on the trigger to activate the hammer in order to fire a round.

After shooting the victim, appellant backed out of the laundromat waving his revolver at the ten (10) to fifteen (15) people in the laundromat. Appellant then fled in the getaway car to a house in Coatesville where appellant and his cohorts changed clothes and joked about their weapons with the man who resided at the house. The three men eventually left the Coatesville house and returned to Philadelphia where they changed clothes once again at a fast-food restaurant.

Between December 19, 1993 and December 24, 1993, detectives in the Chester County District Attorney's Office interviewed three eye witnesses to the murder. On December 23, 1993, one of the witnesses identified appellant from a photographic array of eight (8) black males prepared by a Chester County detective. On December 24, 1993, a second eyewitness, independently from the first eyewitness, identified appellant from the same photographic array.

On December 27, 1993, an arrest warrant was issued for appellant's involvement in the murder and robbery. At approximately 6:50 a.m. on December 28, 1993, officers of the Philadelphia Police Stakeout Unit arrested appellant at his mother's home in Philadelphia. The Philadelphia police transported appellant to the Philadelphia Police Administration Building where appellant was processed and turned over to the Chester County detectives. After waiving his Miranda [] rights, *fn10 appellant was questioned by the Chester County detectives in the Philadelphia Police Administration Building. Appellant then made a statement in which he confessed to his participation in the robbery and murder. Appellant, however, contended that the shooting was an accident which occurred during a struggle with the victim. Appellant's statement was reduced to a typewritten document by a Chester County detective. Appellant ultimately reviewed, corrected and signed the typewritten document.

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). Specific intent to kill can be proven where the defendant knowingly applies deadly force to the person of another. Id. Death caused by the use of a deadly weapon upon a vital part of the victim's body is sufficient to prove the specific intent required for a conviction of first degree murder. Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 (1995).

Here, the evidence presented at trial showed that appellant entered the laundromat with a loaded revolver, which is clearly a deadly weapon. After the victim declined appellant's demand for money, appellant pointed the revolver at a vital part of the victim's body. At the time appellant killed the victim, the revolver was four to ten inches away from the victim's head. Also, two eyewitnesses identified appellant as the person who emerged from the rear of the laundromat after the shots were fired which killed the victim and that appellant waved the revolver at them in his attempt to flee the scene. Moreover, appellant admitted to shooting the victim. 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 Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308 (1995) (evidence establishing that defendant admitted being at the victim's store; that the defendant aimed a gun at a vital part of the victim's body; that the defendant fired the shot from four feet away; and that defendant admitted shooting the victim, albeit claiming it was an accident, was sufficient to support guilty verdict against defendant for first degree murder).


Appellant next argues that the trial court erred by not suppressing the inculpatory statements he made to a Chester County detective at the Philadelphia Police Administration Building on the grounds that the statements were obtained in alleged 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 his attorney, who represented appellant in a separate and unrelated federal criminal matter, telephoned the Police Administration Building at the request of appellant's mother to speak with appellant and the Philadelphia police would not allow the attorney to speak with appellant. Thus, appellant contends that his waiver of his right to counsel was invalid.

Our standard of 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, 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 which 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.

The right to counsel is enunciated in the Miranda warnings. The Commonwealth bears the burden of establishing whether a defendant knowingly and voluntarily waived his Miranda rights. Commonwealth v. Hughes, 521 Pa. 423, 443, 555 A.2d 1264, 1274 (1989). In order to do so, the Commonwealth must establish that the proper warnings were given, and that the accused manifested an understanding of these warnings. Hughes, 521 Pa. at 443, 555 A.2d at 1274. A defendant's waiver of his Miranda rights must be free of any impermissible inducement by the police that the defendant would receive special treatment if he made an immediate confession rather than wait to confer with his attorney. Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409, cert. denied, 493 U.S. 963, 107 L. Ed. 2d 369, 110 S. Ct. 403 (1989). Moreover, a person accused of a crime who has already engaged counsel may, with full knowledge of his rights but in the absence of counsel, effectively waive his right to have counsel present while he is questioned by the police. Commonwealth v. Lark, 505 Pa. 126, 132, 477 A.2d 857, 862 (1984).

Here, in denying appellant's motion to suppress his statement concerning his involvement in the victim's murder, the trial court made findings of fact. Specifically, the trial court found that on December 28, 1993 at 6:50 a.m., appellant was arrested by the Philadelphia Police and taken to the Philadelphia Police Administration Building. At no time during the arrest did any Philadelphia Police officer hear appellant ask to call or speak with an attorney. After being routinely processed by the Philadelphia police, appellant was turned over to the Chester County detectives. A Chester County detective began interviewing appellant in an interview room at the Philadelphia Police Administration Building by introducing himself and reading the contents of the affidavit accompanying the criminal complaint against appellant. The Chester County detective then issued appellant the proper Miranda warnings from a printed card used by the Chester County police. Appellant verbally waived his Miranda rights and signed the Miranda warnings card. Appellant then began to cry and gave a statement that the murder was an accident. Appellant's statement was then reduced to a typewritten document which appellant ultimately reviewed, corrected and signed and which was later introduced at trial. At no time during the entire interview process did appellant request an attorney. Moreover, the record reflects that the Chester County detective never made any promise of leniency in exchange for a statement by appellant.

While this interview was being conducted, the attorney representing appellant in his separate federal criminal matter supposedly called the Philadelphia Police Administration building at the request of appellant's mother. The Philadelphia police represented that they were neither questioning appellant nor would they allow the attorney to speak with appellant. The attorney, however, was not retained by appellant's mother at the time of the call and he was never subsequently retained by appellant in connection with this matter. Most importantly, appellant himself never asked for an attorney. Since one's Sixth Amendment and Fifth Amendment rights are personal, they cannot be invoked by another party. Lark, 505 Pa. at 133, 477 A.2d at 861 (citing Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964)) (only defendant controls the authority to exercise his rights).

Based on these facts, we conclude that appellant was not improperly induced into waiving his Miranda rights. Also, we find that appellant knowingly, intelligently and voluntarily waived his right to have counsel present. Thus, the trial court correctly denied appellant's motion to suppress the statement he gave to the Chester County detective describing his involvement with the murder. Hence, this claim must fail.


Appellant next argues that the prosecutor committed prosecutorial misconduct by making three improper remarks during closing argument at the guilt phase of trial. In reviewing a claim of improper prosecutorial comments, our scope of review is whether the trial court abused its discretion. Commonwealth v. Simmons, 541 Pa. 211, 246, 662 A.2d 621, 638 (1995), cert. denied, U.S. , 116 S. Ct. 945 (1996). 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. Simmons, 541 Pa. at 246-47, 662 A.2d at 639. Prosecutorial misconduct, however, will not be found where comments were based on evidence or proper inferences therefrom or were only oratorical flair. Moreover, in order to evaluate whether the comments were improper, we must look at the context in which they were made. Commonwealth v. Jones, 542 Pa. 464, 512, 668 A.2d 491, 514 (1995), cert. denied, U.S. , 117 S. Ct. 89 (1996). We note that this is a relatively stringent standard against which appellant must labor. LaCava, 542 Pa. at 181, 666 A.2d at 231.

Two of the three instances of prosecutorial misconduct complained of on appeal by appellant concern the following remarks made by the prosecutor during closing argument at the guilt phase of trial:

What did we prove here? What did we prove here? I am going to go over the evidence briefly, and then make some inferences to prove the specific intent to kill, especially in homicides, when there is normally two witnesses to the incident, to the murder. The defendant, he certainly witnessed it, he was right there, and Mr. Johnson [the victim], who can't speak. He's forever silenced. He won't see another Christmas.

(N.T. 10/27/94 at 788). Appellant's trial counsel immediately objected to these comments and moved for a mistrial. Trial counsel argued that the remark "forever silenced" improperly referred to appellant's failure to testify and the "see another Christmas" remark was designed to appeal to the sympathies of the jury. After the trial court denied the objection, the prosecutor continued by arguing the following:

Ladies and gentlemen of the jury, the law recognizes that it is very difficult for one to interpret what is on one's mind, what is in one's mind when they do things. We all know what's on our minds. I am intently right now involved in this case, you are intently listening to my case, so the law realizes the difficulty, and they therefore allow you to look at the facts and circumstances, all of them, all of them surrounding a killing, to infer what was this guy's mind when he killed.

(N.T. 10/27/94 at 789).

Appellant now contends that the prosecutor's "forever silenced" remark was improper because it impermissibly commented on his refusal to testify. We disagree with appellant's contention.

A prosecutor is not permitted to comment adversely upon a defendant's refusal to testify as to the merits of the charges against him because it compromises the privilege against self-incrimination and the defendant's constitutional presumption of innocence. Commonwealth v. Rolan, 520 Pa. 1, 7, 549 A.2d 553, 556 (1988). Here, the "forever silenced" remark clearly refers to the victim's inability to speak, not to appellant's silence. Also, when the remark is read in the context of the entire closing, the prosecutor's remarks do not reflect adversely upon appellant's decision not to testify. Instead, the remark was an attempt by the prosecutor to explain to the jury the difficulty of proving the intent to kill and that such intent must be inferred from the facts and circumstances surrounding the killing since the victim cannot testify. Thus, the trial court did not abuse its discretion in ruling that the prosecutor's comment was not an impermissible comment on the defendant's failure to testify. See Rolan, 520 Pa. at 7-8, 549 A.2d at 556-57 (prosecutor's comment that jury had heard absolutely no evidence which would indicate someone other than defendant shot the victim was not an impermissible comment on the defendant's failure to testify); Commonwealth v. Young, 477 Pa. 212, 217, 383 A.2d 899, 901 (1978) (prosecutor's closing argument that jurors did not know what was in defendant's mind at the time of the offense or at the time he cooperated with police was not an impermissible comment on the defendant's failure to testify). Moreover, any prejudice by this statement was cured by ...

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