Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County at No. CP-09-CR-0006389-2008
The opinion of the court was delivered by: Madame Justice Orie Melvin
ARGUED: September 14, 2010
David Richard Ramtahal appeals from the sentence of death imposed on May 18, 2009, in the Court of Common Pleas of Bucks County after a jury convicted him of first-degree murder, criminal conspiracy, two counts of possessing an instrument of crime, and three counts of robbery. We affirm the judgment of sentence.
The evidence of record establishes that on the evening of November 15, 2006, Appellant and his co-defendant, Nyako Pippen, were driving through Winder Village, a high-crime area in Bristol Township, Bucks County, when they observed Shawn Parker, Jarrett Osborne, and Jamar Osborne standing together on a street corner. Based on the reputation of the neighborhood, Appellant and Pippen surmised that the men were likely drug dealers who possessed large sums of cash and would not alert police if robbed of their drug proceeds. Thus, Appellant and Pippen viewed the men as prime targets and conspired to rob them at gunpoint. Appellant drove to a nearby playground where he and his confederate armed themselves and concealed their identities; Appellant donned a ski mask and carried a nine-millimeter Kel-Tec handgun while Pippen procured a sawed-off shotgun and tied a t-shirt around his face.
Appellant and Pippen drove back into the residential area where the three men were standing, parked in front of a house, and approached the targeted individuals on foot. As they neared the trio, Pippen raised the shotgun and attempted to cock the weapon, but the gun jammed. Alerted to their assailants' presence, Parker and his companions fled on foot. As the three men were running along Elmhurst Avenue, Appellant pointed his handgun at them and fired a single round from a distance of approximately seventy feet, wounding Jarrett Osborne in the buttocks. Jarrett ran a short distance, fell to the ground, and began writhing in pain. Appellant and Pippen immediately returned to their vehicle and drove off while Jamar Osborne summoned emergency medical personnel to the scene. Paramedics arrived three minutes later and placed Jarrett inside an ambulance where he suffered cardiac arrest and heart failure on the way to Frankford-Torresdale Hospital. Subsequent efforts to revive Jarrett were unsuccessful, and he was pronounced dead at 11:43 p.m. An autopsy revealed that the bullet traveled through the pelvis and severed a large blood vessel called the iliac artery, causing high volume blood loss that ultimately resulted in Jarrett's death.
Homicide investigators amassed a substantial amount of evidence tying Appellant to the fatal shooting. Detective Greg Beidler of the Bristol Township Police Department testified that he responded to the police radio dispatch concerning the incident and recovered two objects at the crime scene: a fired nine-millimeter shell casing and a black neoprene ski mask. See N.T. Trial, 5/11/09, at 143. The shell casing and the bullet recovered from Jarrett Osborne's body were submitted to a firearms examiner employed by the Montgomery County District Attorney, and the ski mask was sent to the Pennsylvania State Police Crime Laboratory in Bethlehem for forensic analysis. Id. at 150, 155. The nose and mouth areas of the ski mask were swabbed and found to contain genetic material that produced a single DNA profile of an unknown male. After recovering the Kel-Tec handgun and acquiring information that identified Appellant as a suspect, police obtained a search warrant for a DNA sample and submitted genetic material provided by Appellant to the crime laboratory for analysis.*fn1 The known sample procured through the search warrant exhibited the same DNA profile as samples collected from the ski mask and the Kel-Tec handgun. Id. at 157; see also N.T. Trial, 5/12/09, at 6. All of the DNA evidence was entered by way of stipulation; the defense conceded the accuracy of the laboratory reports. Furthermore, expert analysis of the firearm, shell casing, and projectile removed from Jarrett Osborne's body revealed that the fatal shot had been fired from the Kel-Tec handgun that bore traces of Appellant's DNA. See N.T. Trial, 5/12/09, at 88.
Investigators also analyzed cellular telephone traffic and discovered a series of telephone calls linking Appellant and Pippen to Winder Village at the time of the shooting. Detective Beidler explained to the jury that telephone records showed Appellant and Pippen began using their cellular telephones in Philadelphia before placing calls which indicated that they were traveling toward Bristol Township on the night in question. At 9:40 p.m., Pippen's telephone transmitted a signal to a cellular telephone tower located in Bristol Township, and another call made by Pippen at 10:36 p.m., approximately four minutes after Jamar Osborne contacted a 911 operator to request an ambulance for the victim, was traced to a tower "just outside of [the] Winder Village neighborhood." N.T. Trial, 5/11/09, at 175. Subsequent calls placed by Appellant and Pippen after 11:00 p.m. demonstrated that both men returned to their homes in Philadelphia upon leaving the Winder Village area. See id. at 176-177.
The cellular telephone evidence was corroborated by Appellant's co-defendant, Nyako Pippen, who appeared as a prosecution witness in accordance with a plea agreement that enabled him to plead guilty to third-degree murder in exchange for a twelve-to-twenty-four-year prison sentence. Pippen testified that on the night of the murder, he and Appellant drove to Bristol Township at approximately 9:00 p.m. to socialize with some women, but their plans fell through, and the two men ended up "just riding around." N.T. Trial, 5/12/09, at 15. As they proceeded through Winder Village, they observed a group of men standing on the corner of Elmhurst Avenue and Winder Drive, and Appellant "brought up the idea of robbing them" because they appeared to be drug dealers conducting business in an area known for drug activity. Id. at 16.
Appellant drove to a playground where they decided that Appellant would hold the victims at gunpoint while Pippen searched their pockets for money. After concealing their identities, Appellant drove back up Elmhurst Avenue and parked in front of a house. Appellant supplied Pippen with a sawed-off pump-action shotgun, and they approached the men on foot; however, as the targets came into view, Pippen tried to cock his weapon, and the three men "took off running." Id. at 27. Pippen testified that he immediately retreated to Appellant's vehicle, and, at that time, he saw Appellant point his pistol at the fleeing men. Pippen heard a gunshot as he returned to the car, placed his shotgun in the trunk, and re-entered the vehicle through the passenger-side door. Appellant returned to the vehicle moments later and began driving toward Philadelphia. When Pippen asked if one of the men discharged a gun during the incident, Appellant replied in the negative and stated that he had fired one round "in the air to scare them." Id. at 32. Pippen claimed that several months passed before he learned that someone had been killed during the robbery attempt at Winder Village. Id. at 49.
The defense did not dispute Pippen's version of the incident or deny that Appellant fired the bullet that killed Jarrett Osborne. Instead, defense counsel argued throughout the trial that the killing was unintentional based on evidence that the barrel in Appellant's handgun had been altered in a manner that made the weapon "inherently inaccurate." N.T. Trial, 5/11/09, at 34. In support of this claim, counsel referenced the testimony of two firearm examiners with expertise in ballistics and marksmanship, both of whom test-fired the murder weapon and concluded that its accuracy had been degraded when someone reamed the barrel with an unknown object to alter the rifling and hinder firearm identification.*fn2 The Commonwealth's expert, Montgomery County Detective John Finor, testified that he took the handgun to an indoor shooting range, fired six bullets for accuracy at a distance of seventy-five feet and found that the bullets formed a group ten inches in diameter that impacted the target approximately 12.5 inches to the left of center. See N.T. Trial, 5/12/09, at 112-113. Defense expert Carl Leisinger III achieved similar results when he fired the gun at an outdoor range, creating a six-inch-diameter group at seventy-five feet with the bullets striking the right side of the target. Id. at 133. Mr. Leisinger also tested for accuracy at one hundred feet and found that the bullets drifted so far to the right at that distance that he could not hit the target when aiming at the center; however, by aiming at "the extreme left side" of the target, Mr. Leisinger was able to hit the target fifty percent of the time. Id.
Appellant requested a demurrer to the charge of first-degree murder on the basis that there was no evidence to support a determination that the killing was premeditated. That request was denied, and he was subsequently convicted of the aforementioned crimes. At the penalty phase, the jury recommended a sentence of death after finding two aggravating factors and one mitigating factor.*fn3 Appellant was formally sentenced to death for first-degree murder on May 18, 2009 and received a consecutive forty-to-eighty-year term of imprisonment for the remaining charges. Appellant's post-sentence motions were denied on May 26, 2009. This appeal followed, wherein Appellant argues that: (1) the evidence was insufficient to convict him of first-degree murder; (2) the verdict was contrary to the weight of the evidence; (3) the trial court abused its discretion in limiting cross-examination of a prosecution witness; and (4) a new penalty hearing is warranted because the jury failed to specify what considerations prompted it to find the mitigating circumstance codified at 42 Pa.C.S. § 9711(e)(8).
Although this Court is required to review the sufficiency of the evidence supporting a first-degree murder conviction in every capital prosecution regardless of whether the defendant raises the issue on direct appeal, see 42 Pa.C.S. § 9711(h)(1), as noted above, Appellant does present a sufficiency argument in this case. In evaluating the issue, we must determine whether the evidence admitted at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner, supports the jury's finding that every element of the offense was proven beyond a reasonable doubt. Commonwealth v. Smith, 985 A.2d 886, 894-895 (Pa. 2009). The Commonwealth may sustain its burden of proof by means of wholly circumstantial ...