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Commonwealth v. Baumhammers

November 20, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RICHARD BAUMHAMMERS, APPELLANT



Appeal from the Judgments of Sentence of Death entered May 12, 2001, and the Judgment of Sentence entered September 6, 2001 (post-sentence motions denied on December 29, 2005), in the Court of Common Pleas of Allegheny County at Nos. CC 200014712, 200014713, and 200014714.

The opinion of the court was delivered by: Mr. Justice McCAFFERY

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ARGUED: March 5, 2008

OPINION

This is a capital direct appeal from judgments of sentence imposed by the Court of Common Pleas of Allegheny County on May 12 and September 6, 2001. Because we conclude that the issues raised by Appellant are without merit, we affirm the judgments of sentence.

On April 28, 2000, during a crime spree lasting approximately two hours, Appellant, Richard Baumhammers, shot and killed Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pham, and Garry Lee. He also seriously wounded Sandip Patel, pointed his loaded pistol at George Thomas II, set fire to Mrs. Gordon's house by using an incendiary device, desecrated one synagogue by defacing it with red spray paint and shooting bullets into it, and desecrated a second synagogue by shooting bullets into it. Appellant was arrested on the day of the crime spree and was found to have in his possession a .357 caliber handgun, spent .357 caliber shell casings, live .357 caliber ammunition, two Molotov cocktails, a can of red spray paint, and a roadmap. Appellant was charged with five counts of homicide, one count of attempted homicide, one count of aggravated assault, one count of simple assault, one count of recklessly endangering another person, eight counts of ethnic intimidation, two counts of institutional vandalism, two counts of criminal mischief, three counts of arson, and one count of carrying a firearm without a license. At the time of the filings of the criminal informations, the Commonwealth gave Appellant notice of its intention to seek the death penalty and of the aggravating circumstances supporting the death penalty on which it intended to rely.

Following a competency hearing held on May 9, 2000, the trial court determined that Appellant was mentally incompetent and ordered his transfer to a state hospital for treatment. Following a subsequent competency hearing held on September 15, 2000, the trial court determined that treatment had rendered Appellant competent to stand trial. A jury trial on the charges was thereafter held from April 27 to May 9, 2001. During trial, Appellant did not dispute that he had shot the victims; rather, he presented evidence that he had done so while suffering from a mental disease. The jury rejected Appellant's insanity defense and returned a verdict of guilty on the five counts of first-degree murder and on all of the remaining charges.

From May 10 to May 11, 2001, the penalty phase of the trial was held. The Commonwealth presented two aggravating circumstances pursuant to 42 Pa.C.S. § 9711(d)(7) and (11).*fn1 Appellant presented five mitigating circumstances pursuant to 42 Pa.C.S. § 9711(e)(1), (2), (3), (5), and (8).*fn2 The jury found that the Commonwealth had proven the two aggravating circumstances, and that Appellant had proven three of the five mitigating circumstances. However, the jury also determined that the aggravating circumstances outweighed the mitigating circumstances and returned sentences of death as mandated by law. See 42 Pa.C.S. § 9711(c)(iv) (providing in relevant part that the verdict must be a sentence of death if the jury unanimously finds one or more aggravating circumstances that outweigh any mitigating circumstances). Sentencing on the non-capital offenses, as well as the formal imposition of the death sentences was deferred pending the preparation of a pre-sentence report. On September 6, 2001, the sentencing court formally imposed the five sentences of death and further imposed a total term of imprisonment on the non-homicide convictions of 1121/2 to 225 years. On December 29, 2005, the court denied Appellant's post-sentence motions, and Appellant filed the instant direct appeal wherein he raises sixteen issues for this Court's review, which we shall address following our mandatory review of the sufficiency of the evidence for the first-degree murder convictions.

I. Sufficiency of the Evidence

In all death penalty direct appeals, whether or not the appellant specifically raises the issue, this Court reviews the evidence to ensure that it is sufficient to support the conviction or convictions of first-degree murder. Commonwealth v. Blakeney, 946 A.2d 645, 651 n.3 (Pa. 2008).

Evidence presented at trial is sufficient when, viewed in the light most favorable to the Commonwealth as verdict winner, the evidence and all reasonable inferences derived therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt. In the case of first-degree murder, a person is guilty when the Commonwealth proves that: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. An intentional killing is a killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing. The Commonwealth may prove that a killing was intentional solely through circumstantial evidence. The finder of fact may infer that the defendant had the specific intent to kill the victim based on the defendant's use of a deadly weapon upon a vital part of the victim's body.

Id. at 651-52 (citations and quotation marks omitted).

Further, in reviewing whether the evidence was sufficient to support the first-degree murder conviction or convictions, the entire trial record should be evaluated and all evidence received considered. Commonwealth v. Cousar, 928 A.2d 1025, 1032-33 (Pa. 2007), cert. denied, 128 S.Ct. 2429 (2008). In addition, we note that "the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence." Id. at 1033.

Here, Appellant has not raised an issue regarding the sufficiency of the evidence; however, our independent review compels the conclusion that the evidence adduced at trial overwhelmingly supports Appellant's convictions for first-degree murder. The evidence established that at approximately 1:40 p.m. on April 28, 2000, Mt. Lebanon firefighters responded to an activated fire alarm set off at the Gordon residence at 788 Elm Spring Road, Mt. Lebanon. The responding firefighters, and police officers who later arrived at the scene, discovered at this residence the body of Anita Gordon, an Orthodox Jew, who had been shot multiple times in the chest, abdomen, and both hands, and who exhibited no signs of life. An incendiary device known as a Molotov cocktail was also discovered as having been thrown and ignited in a first-floor bedroom of the Gordon residence. During the discovery of the violence perpetrated at the Gordon residence, police began to receive reports regarding other nearby acts of violence, specifically, shootings occurring at the Beth El Synagogue, 1.3 miles from the Gordon residence, and at the Scott Towne Center, a strip mall less than one mile from the synagogue. These reports identified the shooter as a white male driving a black Jeep.

While these reports were coming in, Officer Mary Susan Joyce was interviewing neighbors of Anita Gordon. Officer Joyce was questioning Inese Baumhammers, Appellant's mother, when Officer Joyce received a radio dispatch that the vehicle used in the reported shootings was a black Jeep registered to an individual named Baumhammers. Officer Joyce asked Ms. Baumhammers if she owned a black Jeep. Ms. Baumhammers replied that she did and that her son, Appellant herein, was then using the vehicle.

With respect to the first of two synagogue incidents, Susan Finder, a worshipper at Beth El Synagogue, testified that sometime after 1:20 p.m. on April 28, 2000, she was leaving the parking lot of the synagogue when she observed a black Jeep pull into the lot. Finder was able to identify Appellant as the driver of the Jeep. Dennis Wisniewski testified that on the day of the incident he was stopped at a red light three car lengths from the synagogue when he heard a bang and turned to see a man matching Appellant's description discharging five or six pistol rounds into the synagogue. Wisniewski testified that he then observed the shooter walk casually back to a black Jeep Cherokee. Philip Balk, a member of the synagogue, testified that at approximately 2:00 p.m., he arrived at the scene to observe that windows had been broken out and that a swastika and the word "Jew" had been spray-painted in red paint on the building. Detective Edward Adams of the Allegheny County Police testified that when he arrived at the synagogue at approximately 2:50 p.m., he observed the broken glass and the desecration with the red spray paint. He also observed two bullet holes in some of the glass and bullet fragments in the synagogue's vestibule.

Regarding the shooting at the Scott Towne Center, Joseph Lanuka testified that at approximately 1:30 p.m. on April 28, 2000, he dropped off Anil Thakur at the India Grocery, an establishment in the shopping mall. Lanuka told Thakur that he would be back in fifteen minutes to pick him up. When Lanuka returned, he saw police entering the grocery store and Thakur's grocery bag lying on the ground. Lanuka went into the store and saw Thakur lying on the ground with three or four bullet holes in his chest. He also saw a man lying behind the counter, who was identified at trial as Sandip Patel. Thakur died from his wounds and Patel was paralyzed from his neck down as a result of the gunshots he had received. Also regarding this incident, John McClusky testified that at approximately 1:45 p.m., he heard a noise, which he ascertained were gunshots, and observed Appellant pointing a gun at an individual who ran past Appellant into the grocery store. Appellant turned and followed the man into the store; McClusky then heard three more gunshots. Appellant left the establishment, made eye contact with McClusky, and then walked slowly, calmly, and collectedly toward a lower area of the mall parking lot. McClusky then observed Appellant drive away in a normal fashion in a black Jeep Cherokee. Jennifer Lynn Fowler also testified that she witnessed the events described by McClusky.

A second synagogue incident occurred that afternoon at the Ahavath Achim Synagogue in Carnegie, approximately 2.1 miles from the Scott Towne Center. Carole Swed testified that at approximately 2:00 p.m. she was stopped at a traffic light across the street from the synagogue. Swed heard two loud pops and turned to observe Appellant, with a calm demeanor, standing outside of the synagogue. She observed him fire several shots into the synagogue, then get into a black Jeep and drive away. Swed was able to record the license plate number of the Jeep, and she promptly provided this information to the police, whom she immediately called. Detective Edward Fisher of the Allegheny County Police testified that when he arrived at the synagogue, he observed five bullet holes in the structure, including one in a flyer advertising a meeting of Holocaust survivors that was scheduled at the synagogue.

David Tucker testified that between 2:15 and 2:30 p.m. on April 28, 2000, he was the lone diner at the Ya-Fei Chinese Restaurant in the Robinson Towne Center, a strip mall located approximately ten minutes away by car from the Ahavath Achim Synagogue. In the restaurant at the time was Ji-Ye Sun, the restaurant manager, and Thao Pak Pham, a delivery person. During this period, Appellant walked into the restaurant carrying a briefcase. Appellant and Pham had a verbal exchange, and then Tucker saw Pham begin to run. Tucker testified that Appellant pulled a pistol from his case and shot Pham in the back as he was running past Tucker. Sun was shot in the chest. Although paramedics arrived quickly at the establishment, both Pham and Sun died from their gunshot wounds.

George Lester Thomas II testified that at approximately 2:40 p.m., he met his best friend, Garry Lee, at the C.S. Kim Karate Studio, located in the Center Stage Shopping Center, which was not a far distance from the Robinson Towne Center. Both men were warming up in the studio when Appellant entered and pointed a handgun at Thomas. Appellant did not shoot but turned the gun in the direction of Lee, who was standing next to Thomas. Appellant shot Lee twice in the chest and then calmly walked away as Thomas ran to the back of the studio in an effort to summon help. However, Lee died from his gunshot wounds. Thomas is white; Lee was black.

Diane Wenzig, the owner of a pizza shop two doors away from the karate studio, testified that she observed Appellant walk into the karate studio with a gun in one hand and a briefcase in the other. After hearing the gunshots, Wenzig instructed her son to call 911. Wenzig observed Appellant get into a black Jeep Cherokee, whose license plate number she recorded and provided to the police.

Following the report of this incident, Officer John Fratangeli of the City of Aliquippa Police Department was instructed to station himself on the Aliquippa-Ambridge Bridge along Route 51 so that he could intercept Appellant.*fn3 Officer Fratangeli testified that at approximately 3:10 p.m., he observed Appellant's black Jeep Cherokee turn onto the bridge. Appellant was not driving erratically; in fact, he was driving within the speed limit and using proper turn signals. Officer Fratangeli followed Appellant's vehicle, and when assisting units arrived, he initiated a traffic stop, two blocks from another synagogue. Appellant was arrested and his .357 caliber pistol was found in a soft-sided briefcase in the Jeep. A criminologist with the Allegheny County Coroner's Office testified that forensic tests confirmed that the bullets recovered from the bodies of Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pam, and Garry Lee had all been discharged from Appellant's weapon.

At trial, the Commonwealth also introduced the testimony of Appellant's cellmates at different correctional facilities. Bobby Jo Eckles testified that Appellant told him that he had "shot a nigger" and that Appellant made other derogatory comments regarding blacks and Jews. David Brazell testified that Appellant told him that he had killed Anita Gordon "to make a statement" and that he had desecrated the Beth El Synagogue because that was where Mrs. Gordon had worshipped. Other fellow inmates testified that Appellant spoke of his anti-immigration and pro-segregation views, his desire to start a white supremacist party, and his hatred for all "ethnic" people.

The foregoing evidence was amply sufficient to permit the jury to conclude, beyond a reasonable doubt, that Appellant intentionally, deliberately, and with premeditation killed Anita Gordon, Anil Thakur, Ji-Ye Sun, Thao Pak Pam, and Garry Lee. Each of these victims was unlawfully killed; Appellant committed the killings; and the mere fact that Appellant shot four of the victims in the chest, sometimes several times, was sufficient to permit the jury to find a specific intent to kill. Additional evidence of Appellant's specific intent to kill included (1) the statements he later made indicating his desire to "make a statement" by his shooting of Mrs. Gordon; (2) his disparagement of the ethnicities of the victims; and (3) his violent desecration of synagogues.

Having determined that the evidence overwhelmingly supports his first-degree murder convictions, we now turn to Appellant's claims.

II. Relaxed Waiver Rule

Although Appellant does not concede that any issue in this appeal was not timely raised and preserved below, he has anticipated, correctly, that the Commonwealth argues that many of his issues were not preserved and are thus waived. In anticipation of the Commonwealth's argument that certain of his issues are waived, Appellant contends that we should address the merits of such issues under the "relaxed waiver rule." Appellant acknowledges that we abrogated the relaxed waiver rule in Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003), well prior to his 2006 appeal. However, because his case was tried before Freeman's effective date, Appellant contends that it "makes sense" that he should reap the advantages of the rule because his trial counsel might have anticipated its application on appeal. Appellant's Brief at 20. Further, Appellant contends that all of his issues, save one, were "raised below" in his post-sentence motions, even if not during trial or on pre-trial motions.*fn4 Finally, Appellant asks that we invoke our discretion to review waived claims and, in particular, consider that his claims rise to the level of "primary constitutional magnitude." Id. at 21.

Prior to Freeman, this Court would address, in its discretion, issues in capital appeals not preserved below pursuant to a practice we referred to as the relaxed waiver rule. See, e.g., Freeman, supra at 400 (citing to several capital cases where we reviewed otherwise waived issues under the relaxed waiver rule). However, in Freeman, we abolished this rule, holding that, as a general rule on capital direct appeals, claims that were not properly raised and preserved in the trial court are waived and unreviewable. Such claims may be pursued under the [Post Conviction Relief Act (PCRA)], as claims sounding in trial counsel's ineffectiveness or, if applicable, a statutory exception to the PCRA's waiver provision. This general rule . reaffirms this Court's general approach to the requirements of issue preservation. .[A]n assumption has arisen that all waived claims are available for review in the first instance on direct appeal. The general rule shall now be that they are not. In adopting the new rule, we do not foreclose the possibility that a capital appellant may be able to describe why a particular waived claim is of such primary constitutional magnitude that it should be reached on appeal. Indeed, nothing . shall . call[] into question the bedrock principles . concerning the necessity of reaching fundamental and plainly meritorious constitutional issues irrespective, even, of the litigation preferences of the parties. Consistently with our [practice], however, we leave the specific articulation of any future exception to the actual case or controversy in which that "rare" claim arises.

Id. at 402.

Further, we made our new "rule" prospective, holding that the relaxed waiver rule would continue to apply only to those capital cases then briefed or in the process of being briefed. Id. at 403. Because we held that our new rule would apply to those cases in which the appellant's brief had not yet been filed in this Court and was not due for thirty days or more after the May 30, 2003 filing date of Freeman, all cases where the appellant's brief was due to be filed after June 28, 2003, or had not been filed by that date, were subject to our new rule. Id.; see also Cousar, supra at 1043.

In the instant case, Appellant was tried for capital murder prior to the effective date of the new rule set forth in Freeman. However, Appellant filed his notice of appeal on February 28, 2006, well after the effective date of the new rule established in Freeman. Therefore, the relaxed waiver rule clearly does not apply to Appellant's issues, even though Appellant's trial occurred prior to the effective date of the new rule. See Commonwealth v. Moore, 937 A.2d 1062, 1066 (Pa. 2007) (holding that Freeman barred application of the relaxed waiver rule where the appellant was convicted in 1999, prior to Freeman, but the appeal was filed after the effective date of the new rule set forth in Freeman); and Cousar, supra at 1043 (holding that Freeman barred application of the relaxed waiver rule where the appellant was convicted in 2001, prior to Freeman, but the appeal was filed after the effective date of the new rule set forth in Freeman). Therefore, Appellant's "waived claims may be considered, if at all, only as components of a challenge to trial counsel's stewardship." Moore, supra at 1066.

Moreover, the specific reasons asserted by Appellant for applying the relaxed waiver rule here are easily rejected. Appellant first argues that the relaxed waiver rule should be applied because trial counsel would have anticipated its application on appeal. However, "this Court has long emphasized that the relaxed waiver rule did not exist to permit capital defendants and their counsel to deliberately avoid raising contemporaneous objections." Freeman, supra at 403.

Appellant next argues that those objections not contemporaneously raised below were nevertheless "raised in the lower court" by virtue of having been set forth in post-sentence motions. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Appellant has failed to show that Rule 302(a) has ever been interpreted as meaning that issues may be raised at any time during the lower court proceedings in order to preserve them. Rather, it is axiomatic that issues are preserved when objections are made timely to the error or offense. See Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005) (holding that an "absence of contemporaneous objections renders" an appellant's claims waived); and Commonwealth v. Bruce, 916 A.2d 657, 671 (Pa.Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007) (holding that a "failure to offer a timely and specific objection results in waiver of" the claim). Therefore, we shall consider any issue waived where Appellant failed to assert a timely objection.

Finally, Appellant argues that we should review even waived claims if they rise to the level of "primary constitutional magnitude." Indeed, in Freeman, we specifically reserved the practice of "reaching fundamental and plainly meritorious constitutional issues irrespective, even, of the litigation preferences of the parties." Freeman, supra at 402. However, with respect to what are his "fundamental and plainly meritorious constitutional issues," Appellant references only his arguments concerning whether sentencing a mentally ill person to death and whether lethal injection constitutes cruel and unusual punishment. Appellant's Brief at 21-22; see discussion infra with respect to these issues. As shall be discussed infra, we do not agree that Appellant has raised any "fundamental and plainly meritorious constitutional issues." We therefore proceed to address Appellant's properly preserved substantive issues from both the guilt phase and sentencing phase of trial.

III. Change of Venue or Venire

Appellant argues that the trial court erred by not sua sponte ordering either a change of venue or an out-of-county venire panel despite the fact that trial counsel specifically opposed a change of venue or a change of the venire panel to persons outside of the county. Moreover, Appellant makes this argument despite the additional fact that the trial court, after conducting an evidentiary hearing on the issue of pre-trial publicity that included testimony given by an investigator hired by the court, granted Appellant's specific request to have the matter tried within Allegheny County with an Allegheny County jury.

As the facts make plain, this case was one of the most notorious in the history of Allegheny County, and was extensively covered by the media.*fn5 Not only was there significant pre-trial local news coverage of the events of April 28, 2000, but there was also coverage concerning the impact the crimes had on Sandip Patel, who was paralyzed, and on the survivors of those who had been killed. Many news stories also concerned the state of Appellant's mental health.

Anticipating that there could be difficulties in selecting an impartial jury in such an atmosphere, the trial court conducted a "testing of the venire" hearing on February 21, 2001. That hearing established that 102 of 107 potential jurors responded that they had read about, heard and seen on TV, or otherwise had personal knowledge of the events of April 28, 2000. Seventy-five of the 102 knowledgeable potential jurors indicated that they could not be fair and impartial if selected to serve on Appellant's jury. On March 15, 2001, the court conducted a second testing of the venire hearing at which a private investigator, hired by the court to examine local news coverage of the case, testified in detail as to the extent of local news coverage of the case. This second potential jury pool reflected knowledge and attitudes similar in proportion to that of the potential jury pool of the first hearing.

The evidence set forth at the hearings gave the trial court misgivings about selecting a jury panel from Allegheny County. Trial Court Opinion, dated March 26, 2001, at 21. However, at the March 15, 2001 hearing, Appellant specifically objected to a change in venire and specifically requested that the jury be selected from the citizens of Allegheny County, explaining that his trial strategy would be best served by having a local jury. Despite its concerns, the trial court acceded to Appellant's request, noting that not to do so would simply provide Appellant with an appeal issue for which a new trial would be requested. Id. Nevertheless, the trial court held another pre-trial hearing on April 11, 2001, at which the trial judge conducted a colloquy with Appellant, who unequivocally stated to the court that he understood the ramifications of selecting a jury from Allegheny County, but supported his counsel's decision to oppose a change of venire. It should be noted that Appellant is a former, non-practicing attorney.

Appellant now argues, as he did in post-trial motions, that the trial court erred by (1) failing to sua sponte deny Appellant's objection to a change in venire; and (2) denying Appellant's post-trial request to hold an evidentiary hearing to consider the fairness of the trial as viewed through the testimony of Appellant's proffered expert witness. Dr. Edward Bronstein, a professor of political science, would have purportedly testified on behalf of Appellant that it was the professor's "strong opinion that the media coverage of the case raised the most serious concerns about the fair trial rights of [Appellant]." Appellant's Brief at 26.

However, Appellant is now arguing that the trial court erred by granting Appellant's direct objection to any change in venue or the venire panel, an objection lodged in pursuit of a particular trial strategy devised by Appellant. At the very least, Appellant must be considered to have waived his argument, as he clearly did not raise a timely objection to the trial court's refusal to order a change in venire. Thus, despite Appellant's argument that the trial court should have sua sponte ordered a change in venire, Appellant is essentially arguing that the court erred by sustaining Appellant's own objection. Thus, his argument must be deemed waived. Because Appellant's primary argument is waived, his subsidiary argument that the trial court erred by refusing to conduct a post-sentence motion to take testimony from Dr. Bronstein is without merit.*fn6

We note further that in rejecting Appellant's post-sentence argument on this issue, the trial court specifically determined "that the record of the jury selection process established that it was possible to select a jury untainted by prejudicial pre-trial publicity. Such a jury was, in fact, selected in this matter." Trial Court Opinion, dated December 29, 2005, at 5. Here, Appellant utterly fails to dispute this determination by identifying any evidence in the record establishing or indicating that the jury actually selected in this case was biased or tainted by pre-trial publicity. Therefore, even if Appellant had not waived his argument, we would find no basis for relief.

In a similar vein, it is significant to note, as our now-Chief Justice has observed, that "[t]he trial judge is not an advocate, but a neutral arbiter interposed between the parties and their advocates. . With certain rare exceptions . the trial judge is not duty-bound to raise additional arguments on behalf of one party or another such that, if and when the judge fails to do so, he has 'erred.'" Commonwealth v. Overby, 809 A.2d 295, 316 (Pa. 2002) (Castille, J., dissenting); see also Commonwealth v. Pachipko, 677 A.2d 1247, 1249 (Pa.Super. 1996) (noting that it is "clearly inappropriate" for a trial judge to raise an issue on behalf of a party and act as an advocate for that party). This observation simply mirrors that made by the United States Supreme Court, which determined:

In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.

Dennis v. United States, 384 U.S. 855, 875 (1966) (quoted with approval in Commonwealth v. Edwards, 637 A.2d 259, 261 (Pa. 1993)). Indeed, in Edwards, we announced that it would be in the future per se reversible error if a judge instructs the jury concerning a defendant's right not to testify when the defendant has requested that no such instruction be given. Edwards, supra at 261. Similarly, it was not the place of the trial judge here to direct Appellant to pursue a different trial strategy when Appellant's chosen trial strategy was not violative of the law or our rules of procedure. In light of the above, we cannot determine that the trial court erred by sustaining Appellant's objection to a change in venue or venire.

IV. Striking of Three Jurors from the Venire Panel

Appellant argues that he is entitled to a new capital sentencing hearing because the Commonwealth's pre-trial striking from the jury panel of three "otherwise qualified jurors," who had expressed their opposition to the death penalty, allegedly resulted in the empanelling of a jury partial to the Commonwealth's request for the death sentence. Appellant's Brief at 28. Appellant notes that the United States Supreme Court has held that "a challenge for cause cannot be sustained based merely upon a venire person's voicing of general objections to the death penalty or expression of conscientious or religious scruples against its imposition." Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968); see also Commonwealth v. Uderra, 862 A.2d 74, 81 (Pa. 2004) (quoting Witherspoon).

However, the record plainly shows that Appellant failed to timely object to the Commonwealth's challenges for cause to the three prospective jurors identified by Appellant as "otherwise qualified."*fn7 An appellant waives any issue concerning the striking of a venire person when he or she fails to object to a challenge for cause, even when the issue is "of constitutional dimension." Commonwealth v. Peterkin, 513 A.2d 373, 378 (Pa. 1986); see also Commonwealth v. Lewis, 567 A.2d 1376, 1381 (Pa. 1989) (holding that a failure to preserve an objection to the exclusion of a potential juror for cause results in waiver of the issue, even under the relaxed waiver rule); Commonwealth v. Szuchon, 484 A.2d 1365, 1379-80 (Pa. 1984) (holding that even when prospective jurors are excluded for simply voicing a general opposition to or discomfort with the death penalty, defense counsel's failure to object to the striking for cause of such prospective jurors results in waiver of the issue). Accordingly, we conclude that this issue is waived.

V. Search of Appellant's House and Seizure of his Personal Items

Appellant contends that the police violated his rights under the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution by conducting a search of his house and effecting a seizure of personal items. Although the search was made pursuant to a search warrant as well as with the consent of Appellant's parents, Appellant argues that (1) the warrant allowing for a broad search for material was overbroad and not based on probable cause that such material was contraband or evidence of a crime; and (2) the consent for the search was invalid. Among the items seized from Appellant's house was his desktop computer. Pursuant to a subsequently issued warrant, the police examined the file contents of the computer, which revealed evidence of Appellant's racist and anti-immigrant philosophies. That evidence was later used by the Commonwealth at trial.

However, Appellant never filed a motion to suppress the evidence he now claims was impermissibly seized by the police. Pennsylvania Rule of Criminal Procedure 581 addresses the right of a criminal defendant to move to suppress evidence alleged to have been obtained in violation of his or her rights, and sets forth the procedure attendant to the disposition of a suppression motion. Rule 581(D) requires that a suppression motion state with specificity and particularity the evidence sought to be suppressed. Rule 581(B) provides: "If timely motion [for suppression of evidence] is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived."

This Court has consistently affirmed the principle that a defendant waives the ground of suppressibility as a basis for opposition to the Commonwealth's introduction of evidence when he or she fails to file a suppression motion pursuant to our rules of criminal procedure. See, e.g., Commonwealth v. Simmons, 394 A.2d 431, 435 (Pa. 1978) (holding that the specificity requirement of the suppression rule is mandatory, and therefore the failure to object to specific evidence in a suppression motion results in waiver of any argument that such evidence should have been suppressed); Commonwealth v. Williams, 311 A.2d 920, 921 (Pa. 1973) (holding that any objection to the introduction of evidence on constitutional grounds is waived in the absence of the filing of a suppression motion pursuant to the applicable rule of criminal procedure). Accordingly, we determine that Appellant has also waived his claim that the evidence seized from his house should have been suppressed.

VI. Recording of Telephone Conversation

At trial, the Commonwealth introduced into evidence a recording of a telephone conversation made March 2, 2001, at the Allegheny County Jail between Appellant, then an inmate of the jail, and his parents, during which the parents appeared to accuse Appellant of being a racist. The Commonwealth's psychiatric expert in some part relied upon this recording in forming his opinion that Appellant had acted from racist motives rather than from a mental illness. Appellant had moved to suppress the evidence of the telephone conversation pre-trial, arguing that it violated Section 5704(14) of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. § 5704(14), because there had purportedly been no written notification that the conversation would be recorded.*fn8 Appellant also argued that Section 5704(14) of the Wiretap Act was violated a second time when the contents of the recorded conversation were divulged to a detective and the Commonwealth's psychiatric expert.

In denying the suppression motion, the court found that the evidence established that inmates generally receive notice in two ways that their outgoing telephone conversations are recorded: (1) through written notice in the prison handbook; and (2) through a computer-generated message on the telephone itself that is audible to both the inmate and the party on the other end of the conversation. Further, the court found that evidence adduced at the hearing established that Appellant and his parents were actually aware that their telephone conversations were being recorded. Indeed, during the March 2, 2001 conversation, Appellant's father warned Appellant that the conversation was being recorded by prison authorities. Finally, the court determined that the contents of the conversation were properly divulged pursuant to the Wiretap Act's directive that contents of recorded conversations may be divulged in connection with "the prosecution or investigation of any crime." 18 Pa.C.S. § 5704(14)(i)(C).*fn9 Accordingly, the court determined that the Wiretap Act had not been violated because Appellant had received prior written and aural notice--and had actual notice as well--that his telephone conversations were being recorded by prison personnel, and because the contents of the conversation were divulged in conformance with the statute.

Post-trial, Appellant's new counsel, after reviewing a copy of the prison handbook, determined that the handbook did not actually contain written notice that prison telephone conversations are recorded, as had been found factually by the suppression court. Appellant's new counsel also obtained an affidavit from the head of operations at the jail when Appellant was incarcerated there, who confirmed that the prison handbook did not contain written notice to inmates regarding the interception and recording of their telephone conversations. Based on this information, Appellant argued in post-trial motions, as he is arguing now before us, that the telephone conversation at issue was made in violation of Section 5704(14)(i)(A) of the Wiretap Act, as that section requires written, not other, notice. The trial court rejected this argument, noting that the fact that Appellant actually knew that his conversation was being recorded controlled the disposition of the issue. Further, the court determined that Section 5704(14)(i)(A) of the Wiretap Act did not require written notice to every inmate individually, but only prior written notice to the existing inmates before a correctional facility could implement a program of intercepting and recording inmate telephone conversations. This determination was based on the court's reading of the subparagraph relied on by Appellant for his argument, to wit, "Before the implementation of this paragraph, all inmates of the facility shall be notified in writing that, as of the effective date of this paragraph, their telephone conversations may be intercepted, recorded, monitored or divulged." 18 Pa.C.S. §5704(14)(i)(A) (emphasis added).*fn10

Appellant now renews his arguments to this Court, contending that it was irrelevant that he was under actual notice that his telephone conversation was being intercepted and recorded, when the statute required that he receive prior written notice.*fn11 In making this argument, Appellant relies upon our case law holding that the requirements of the Wiretap Act must be strictly adhered to and that a defendant need not establish prejudice prior to obtaining relief. See, e.g., Commonwealth v. Hashem, 584 A.2d 1378, 1381-82 (Pa. 1991) (applying a completely different section of the Wiretap Act, namely Section 5718, pertaining to disclosure to the defendant of court-authorized intercepts). We cannot agree with the conclusions Appellant reaches.

Appellant is certainly correct that because the Wiretap Act infringes upon the constitutional right to privacy, its provisions are strictly construed. See Kopko v. Miller, 892 A.2d 766, 772 (Pa. 2006). However, this principle does not compel a reviewing court to abandon all recognition of the facts before it or to ignore the principle that statutes are not to be construed in a manner that would yield an absurd result. See 1 Pa.C.S. § 1922(1) (providing that in ascertaining the intent of the General Assembly in the enactment of a statute, it is presumed that the General Assembly did not intend a result that is absurd or unreasonable). Simply stated, there is no basis to conclude that the privacy rights of Appellant or his parents were infringed when their March 2, 2001 telephone conversation was recorded. These individuals were actually aware that their telephone conversation was being or could be intercepted and recorded by prison authorities. Written notice to Appellant, assuming he never received any, would not have afforded him any greater protection of his right to privacy or that of his parents than the actual notice they possessed at the time of the conversation. Therefore, on this basis alone, Appellant's argument is wholly without merit.

Finally, there is no basis for Appellant's supplemental argument that Section 5704(14)(i)(C) of the Wiretap Act was violated when the contents of the telephone conversation at issue were divulged to an investigating detective and to the Commonwealth's psychiatric expert. Section 5704(14)(i)(C) provides:

(C) The contents of an intercepted and recorded telephone conversation shall be divulged only as is necessary to safeguard the orderly operation of the facility, in response to a court order or in the prosecution or investigation of any crime.

18 Pa.C.S. § 5704(14)(i)(C).

Appellant avers that Section 5704(14)(i)(C) is ambiguously written and should be interpreted in a manner that permits disclosure only "to safeguard the orderly operation of the facility." However, a plain reading of this section refutes this contention. This section provides that a recording of a telephone conversation involving an inmate may be divulged under any of three instances: (1) only as is necessary to safeguard the orderly operation of the facility; (2) pursuant to a court order; or (3) in the prosecution or investigation of any crime. The March 2, 2001 conversation was divulged pursuant to the third circumstance. Appellant has failed to cite to any authority that would compel a result where a properly intercepted and recorded conversation is ...


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