Appeal from the Judgment of Sentence entered on 2/23/05 (PSM denied on 9/19/05) in the Court of Common Pleas of Philadelphia County at No. 9011-3483
The opinion of the court was delivered by: Mr. Justice Saylor
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
This is a capital direct appeal deriving from the killing of Jorge Figueroa.
Mr. Figueroa was stabbed to death in August 1982 in the Colon family home in Philadelphia. His body was taken to an abandoned row house, where it was later discovered by police.
By his own account, Heriberto Colon ("Colon") was a participant in a local drug organization known as the Arroyos, which was responsible for the killing. Soon after its perpetration, police secured Colon's cooperation, and arrest warrants were issued for Arroyo leaders Simon Pirela (also known as Salvator Morales), his brother Heriberto Pirela (also known as Carlos Tirado), and Appellant.
The Pirela brothers were prosecuted and convicted in 1983; Simon Pirela was sentenced to death, and Heriberto Pirela received a life sentence. See Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985); Commonwealth v. Tirado, 341 Pa. Super. 620, 491 A.2d 922 (1985) (table). Appellant eluded capture for the better part of a decade, until he was located in Puerto Rico in 1990 and extradited.
The Commonwealth's theory of the case was that Mr. Figueroa was killed to prevent him from cooperating with police regarding a robbery-homicide perpetrated two weeks earlier. In that criminal episode, restaurant owner Ignacio Slafman had been shot and killed; the Commonwealth contended that Appellant was the shooter and Mr. Figueroa, among others, served a subordinate role in the robbery. Appellant was separately prosecuted for robbery and first-degree murder in the killing of Mr. Slafman and was initially convicted in May 1992. His trial for the murder of Mr. Figueroa commenced a week later.
At this trial, the Commonwealth opened its case in chief with a witness to the restaurant robbery, who identified Appellant as Mr. Slafman's killer. See N.T., June 1, 1992, at 81, 84. Among numerous other witnesses to various of the events surrounding the Figueroa killing, the prosecution presented testimony from Colon to the effect that: he was a member of the Arroyo drug organization; the Arroyos were led by the Pirelas and Appellant; he (Colon) witnessed both killings (Mr. Slafman and Mr. Figueroa); and, although Simon Pirela had initially stabbed Mr. Figueroa, and the victim ultimately died after having been stabbed in the heart by Heriberto Pirela, Appellant had inflicted knife wounds in the interim as well. See N.T., June 3, 1992, at 9-39.
The Commonwealth also made extensive efforts to establish Appellant's consciousness of guilt by reference to his flight. Among other evidence, the Commonwealth introduced and displayed a videotape containing an edited composite of several America's Most Wanted programs featuring the Commonwealth's search for Appellant. Before the videotape was displayed to the jurors, at the request of the prosecutor, the trial court provided the following limiting instruction:
Ladies and Gentlemen, the program that has been referred to is a commercial program that is used on one of the channels in Philadelphia and throughout the country wherein they highlight the seeking of someone who is wanted for questioning in various areas. In order to sell their program they make it very dramatic and say America's Most Wanted criminals. That title does not apply to the people whom they are searching and surely it does not apply to anyone in this case. The only reason that this program was utilized and that information is being brought to you is for you to understand what efforts have been made by the Philadelphia Police in order to locate Mr. Maisonet. That is the only purpose that it is being utilized. You are not to presume or assume that because the program is titled America's Most Wanted that Mr. Maisonet ever was one of the most wanted people in America for anything nor are you to presume or assume that because of that title and because of the use of the media for the purpose that I pointed out that Mr. Maisonet is guilty of any crime. Proof of guilt must be done by evidence presented in open court and evidence of his arrest and the means of using -- used to obtain his arrest are not evidence of his guilt.
Immediately after this charge, Appellant's counsel interposed an objection that, because the video contained information about the murder of Mr. Slafman and the subsequent endeavors of his widow, it was unduly prejudicial. The court responded:
I have no doubt that [the tape] is prejudicial. The question is whether the evidentiary value outweighs the prejudice. I think that for the purposes of this case your client has been missing for 10 years and the jury is entitled to know every effort that has been made and extended in trying to locate him. Your questions have indicated that they have not made a thorough effort to locate him and I think that if you are able to do that they should be able to point out how thorough their efforts were to locate him.
Id. at 138. Appellant's counsel then affirmed that he was satisfied with the court's instruction. See id. at 139. The court proceeded with ...