Appeal from the Judgment of Sentence entered on 09/19/07 in the Court of Common Pleas, Criminal Division, of Philadelphia County, at No. CP-51-CR-0606781-2006
The opinion of the court was delivered by: Mr. Justice McCAFFERY
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This is a direct appeal from a judgment of sentence of death on one count of first-degree murder. We affirm.
On September 18, 2007, a jury found Donte Thomas ("Appellant") guilty of first- degree murder in the February 3, 2006 shooting death of Tyreese Gaymon a/k/a Tyreese Allen ("Gaymon/Allen").*fn1 The Commonwealth's theory of the case was that Appellant shot Gaymon/Allen at the behest of Appellant's friend Kareem Glass, also known as "Gus" ("Glass/Gus), because Gaymon/Allen had identified Glass/Gus as the individual responsible for the shooting death of Gaymon/Allen's cousin, Tyreek Gaymon, in 2004. In the penalty phase of Appellant's trial, the jury found two aggravating circumstances, i.e., grave risk of death to another, and killing in retaliation against a witness, and one mitigating circumstance, i.e., any other evidence, the "catch- all mitigator." 42 Pa.C.S. §§ 9711(d)(7), (d)(15), and (e)(8), respectively. Determining that the aggravating circumstances outweighed the mitigating circumstances, the jury returned a sentence of death.
Appellant now appeals to this Court, pursuant to 42 Pa.C.S. § 9711(h)(1),*fn2 raising the following three issues for our review, which we set forth verbatim:
[1.] Did the prosecutor commit reversible misconduct in his closing argument at the first phase of the trial when he referred to the defense attorney in pejorative terms and effectively lumped him in with his client on the issue of killing a witness?
[2.] Did the court err in refusing to grant a defense request for an instruction on the "consciousness of innocence" even though the record supported such an instruction?
[3.] Did defense counsel provide ineffective assistance of counsel at the penalty stage when he started his closing argument by chastising and belligerently insulting the jury and in failing to present any forensic evidence to support an obvious attempt at mitigation based on serious trauma?
Appellant's Brief at 3 ("Statement of Questions Involved").
SUFFICIENCY OF THE EVIDENCE
Before addressing Appellant's claims, we must independently review the legal sufficiency of the evidence to support his first-degree murder conviction, as we do in all cases in which a sentence of death has been imposed. See, e.g., Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011). In a sufficiency review, we determine whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of first-degree murder beyond a reasonable doubt. Id.
The elements of first-degree murder are as follows: (i) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011). First-degree murder is an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a) and (d).
Specific intent to kill as well as malice can be inferred from the use of a deadly weapon upon a vital part of the victim's body. Houser, supra at 1133-34; Briggs, supra at 306- 307; Commonwealth v. Wright, 961 A.2d 119, 130-31 (Pa. 2008). For example, in Briggs, supra at 307, we concluded that the appellant's deliberate and repeated use of a firearm to shoot the victims in the chest and/or abdomen established his specific intent to kill.
Here, our review of the testimony presented at trial shows that the evidence was sufficient to support a first-degree murder conviction. Dr. Edwin Lieberman, an assistant medical examiner who performed an autopsy on Gaymon/Allen, testified that the victim sustained four gunshot wounds, to the upper arm, abdomen, armpit, and left flank, respectively, the last of which caused damage to numerous internal organs including the heart. N.T., 9/12/07, at 5, 9, 13, 15, 18, 24, 30-31. Dr. Lieberman testified that the victim's death was the result of the multiple gunshot wounds. Id. at 34.
Several eyewitnesses to the shooting were standing on a street corner with a group of men, including the victim, when the shooting started on the opposite corner. Two of these eyewitnesses, Maurice Gaymon and Stanley Battle, cousins of the victim, testified that they observed Appellant walk down the street and then, upon reaching the corner, pull out a gun and fire multiple shots. N.T., 9/10/07, at 139-42, 198, 205-06; N.T., 9/11/07, at 60-69. Both testified that they saw Appellant's "whole face." N.T., 9/10/07, at 142; N.T., 9/11/07, at 69. Mr. Battle testified that he was "just staring at [Appellant]" as Appellant was shooting, and that Appellant was shooting at the victim, firing a total of approximately twelve to fifteen shots. N.T., 9/11/07, at 66, 69, 73, 77. After the shooting stopped, both of these witnesses saw the victim lying on the ground.
N.T., 9/10/07, at 156-57; N.T., 9/11/07, at 78. Subsequently, both witnesses identified Appellant in a police photo array as the assailant, and they also identified Appellant in court. N.T., 9/10/07, at 139, 167-69; N.T., 9/11/07, at 63, 85-88.
Malik Adams, who at the time of the murder was a 15-year-old friend of the victim, was also present at the murder scene. He gave a statement to police, identified Appellant in a police photo array as the assailant, and testified for the Commonwealth at Appellant's preliminary hearing. N.T., 9/13/07, at 54, 56, 61-62, 74-75, 85. In Adams's statement, he told police that Appellant was the only one at the scene with a gun, that Appellant was the only one shooting at the victim, and that Appellant was the individual whom he saw in the passenger seat of a black car that drove by the street corner shortly before the shooting. Id. at 190-91. During the June 13, 2006 preliminary hearing, Adams identified Appellant in court as the individual who had chased and shot the victim. Id. at 211-12.
However, when the Commonwealth called Adams as a witness at Appellant's trial, he declined to identify Appellant in court as the individual who had killed the victim, and he repudiated his prior identification of Appellant, his statement to police, and his testimony at Appellant's preliminary hearing, saying that he did not remember those events. Id. at 61-91. Although Adams identified the signature on his statement and on the photo array as his signature, he claimed not to know how it got there. Id. at 56-60, 70-80. Adams's statement and preliminary hearing testimony were read into the record at trial. Id. at 183-92, 207-49.
Another witness, Samuel Taylor, had known Appellant for many years and was in prison with him following the victim's murder. N.T., 9/12/07, at 154-56. While they were in prison together, Taylor testified, Appellant told him that he had murdered someone for a friend of his named "Gus" because the victim was going to testify at Gus's upcoming murder trial. Id. at 157-58. In addition, Appellant asked Taylor for a "favor," to wit, to kill the cousin of a witness against Appellant. To this end, Appellant gave Taylor the phone number of his girlfriend. Id. at 158-59; see N.T., 9/14/07, at 59.
Consistent with Taylor's testimony, other evidence showed that Appellant had visited Glass/Gus in prison on two dates, October 5, 2005, and January 31, 2006, the latter date being only three days before the murder. N.T., 9/12/07, at 57-58. When Appellant was arrested on April 19, 2006, he acknowledged, in his statement to police, that he had visited Glass/Gus in prison several times, including on January 31, 2006, and that he had purchased a cell phone for Glass/Gus. Id. at 96-97, 107-08, 110. Appellant also acknowledged in his statement that Glass/Gus "was worried about his upcoming court case and the witness going [sic] to testify against him," but Appellant denied that Glass/Gus had asked him to do anything about the witness and he denied knowledge of or involvement in the death of Gaymon/Allen. Id. at 110-12, 114.
Appellant advanced an innocence defense, centered on the testimony of Tamika McMurren, his girlfriend and mother of three of his children, who claimed that Appellant was unable to run or to use his right hand because of debilitating gunshot wounds that he had suffered in August 2003 and October 2005. N.T., 9/14/07, at 15-18, 30-31, 34, 39-42. McMurren testified that Appellant was unable to fire a gun or to light a cigarette with his right hand, although there was nothing wrong with his left hand. Id. at 39-40. Appellant's gunshot injuries had required surgery, and the surgeon who had operated on Appellant's right arm on October 31, 2005, testified for the Commonwealth after Ms. McMurren's testimony. N.T., 9/17/07, at 23 et seq. Specifically, the surgeon testified that Appellant had use of his right hand two days after the surgery, and he would not have expected that ability to change. Id. at 39. The record indicated only a single post- surgical visit approximately a week after Appellant's surgery, so the surgeon was unable to provide any further information as to Appellant's subsequent ability to use his right hand. Id. at 36-38.
This evidence is sufficient to establish that Appellant shot and killed Gaymon/Allen with malice and with specific intent to kill. The evidence showed that Appellant chased the victim, repeatedly fired a gun at the victim, and with at least one bullet, struck the victim in a vital part of his body. We now turn to Appellant's specific claims.
In Appellant's first issue, he claims prosecutorial misconduct with respect to two portions of the Commonwealth's guilt-phase closing argument. In both instances, the defense made a contemporaneous objection, which the trial court did not grant. We review the trial court's rulings for abuse of discretion. Commonwealth v. Chamberlain, 30 A.3d 381, 408 (Pa. 2011).
The legal principles relevant to a claim of prosecutorial misconduct are well established.
Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in [the jurors'] minds a fixed bias and hostility toward the defendant such that they could not ...