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October 27, 1997


Direct Appeal from Judgment of the Order of the Court of Common Pleas, Criminal Trial Division of Philadelphia County entered March 25, 1996 Denying Post Trial Motions for a New Trial and Arrest of Judgment C.P. at Nos. 15881590, August Term, 1992. JUDGE BELOW: Hon. Juanita Kidd Stout, SJ.

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

The opinion of the court was delivered by: Cappy



DECIDED: October 27, 1997

Following a jury trial, Appellant was sentenced to death for the first degree murder of Andre Graves ("Graves"). *fn1 After a review of the evidence and the issues raised by Appellant, we affirm. *fn2

On July 13, 1992, shortly before 4 a.m., Lillian Albritton ("Albritton") was awakened by the sound of gunfire on the street outside her home in Philadelphia. She ran to the window and observed a driverless car drift across the street and come to rest in front of her home. Inside, slumped over the front passenger seat, was the dead body of Andre Graves.

The police arrived within minutes. They observed that Graves had two bullet holes in the back of the head, and a large exit wound under his right eye. A third bullet was later found to have grazed his skull. Blood was splattered away from Graves and toward the dashboard in front of him and the seat to his side, both of which were riddled with bullet holes.

The physical evidence indicated that Graves had been shot from the back seat of the car. Both rear doors were wide open. Two copper bullet casings, consistent with the bullets which had killed Graves, were found in the rear passenger compartment, and additional casings were located under the driver's seat and in the street nearby. Two bullets were embedded in the front passenger dashboard and door beside the victim. Two additional bullets were recovered by the police from the homes of Albritton's neighbors and fragments of a fifth bullet lay on the street next to where the car came to rest. Forensic examination revealed that all of the bullets were fired from the same gun.

Homicide detectives interviewed Kevin Cofer ("Cofer"), who informed them that he saw the shooting and that Appellant was the killer. Cofer stated that at the time of the murder, he, Graves and Appellant were returning from an unsuccessful search for members of a West Philadelphia gang, the "Boys from the Bottom". Graves had been seeking revenge against the gang members for a beating he had suffered at their hands the previous afternoon, and was in the front passenger seat. Cofer was in the driver's seat. Appellant sat alone in the back.

Cofer informed the police that Appellant told Cofer to turn onto 54th Street. Cofer stated that, "When I turned up the block, all of a sudden I heard rapid gunfire [from] the back seat . . . When I turned, I saw [Appellant] shooting Andre Graves in the back of the head." Cofer stated that he saw Appellant fire at least three rounds from a black handgun into Graves from point blank range.

Cofer slammed on the brakes, almost crashing the car. Appellant exited the back seat and fled to the nearby apartment of his girlfriend, Thiasa Cox ("Cox"). Cofer chased after Appellant and inside Cox's apartment confronted him with Graves' murder. Appellant responded that Graves "could have got us rocked" (i.e. killed). In a subsequent confrontation Appellant asserted that the murder was justified because Graves had informed "The Boys" that Appellant "was doing all the shooting at them."

At Appellant's trial, several witnesses testified that Appellant had been trying to locate Graves on the day of the murder. One witness testified that Appellant owned a black .45 handgun, and that on the day of the murder the witness handed the gun to Appellant. Appellant was still carrying the gun at the time he joined Cofer and Graves. Another witness recalled seeing Cofer, Graves and Appellant in the car, with Appellant in the rear seat, Graves in the front and Cofer driving. Witnesses present at Cox's apartment testified that Appellant had blood on his knee when he entered, and that he was extremely agitated and nervous.

The jury found Appellant guilty of first degree murder and possessing an instrument of crime. In the penalty phase, the jury found two aggravating circumstances: 1) that by shooting the victim as he sat next to Cofer, as well as by doing so in a residential neighborhood and hitting two occupied homes, Appellant knowingly created a grave risk to others when he murdered Graves; *fn3 and 2) that Appellant had a significant history of committing violent felonies. *fn4 The jury determined that these aggravating circumstances outweighed the ...

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