Appeal from the Judgment of Sentence entered on November 24, 2009, in the Court of Common Pleas of Philadelphia County at No. CP-51-CR-0000455-2008.
The opinion of the court was delivered by: Mr. Justice McCAFFERY
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
ARGUED: September 14, 2011
Lewis M. Jordan, a/k/a John Lewis ("Appellant"), pled guilty to murder generally in the shooting death of Philadelphia Police Officer Charles Cassidy. Following a trial by jury to determine degree of guilt, Appellant was convicted of first-degree murder and sentenced to death. In this direct appeal, Appellant raises four issues. Concluding that Appellant is entitled to no relief on any of these issues and that the evidence was sufficient to sustain Appellant's conviction, we affirm the judgment of sentence.
The relevant facts of this case are as follows. During a period of approximately six weeks in the fall of 2007, Appellant committed six armed robberies of retail food shops in North Philadelphia. Specifically, on September 18, 2007; September 21, 2007; and October 13, 2007, respectively, Appellant robbed three different Dunkin' Donuts shops at gunpoint. On October 20, 2007, and October 25, 2007, respectively, he robbed two pizza shops at gunpoint. Finally, at approximately 10:30 a.m. on October 31, 2007, Appellant returned to the Dunkin' Donuts shop that was the site of his first robbery, and again demanded money from the employees at gunpoint. While this final robbery was in progress, Officer Charles Cassidy, who was dressed in his police uniform, parked his car in front of the shop and opened its front door. As the officer was about to enter the shop, Appellant turned toward the officer, took two steps in his direction, pointed a gun at him, and shot him in the forehead at close range. Appellant immediately fled from the scene, stopping to bend over to take the fallen officer's service revolver. On November 3, 2007, Appellant traveled by bus to Miami, where he was arrested a few days later and then brought back to Philadelphia.
Appellant's trial began on November 9, 2009. After voir dire but before any testimony had been presented, Appellant pled guilty to the murder of Officer Cassidy, as well as to all six armed robberies. As the court explained to the jury, the trial's scope had thus been narrowed, such that the only issue left to be determined was whether Appellant had committed first-degree or second-degree murder. See Notes of Testimony ("N.T.") Trial, 11/12/09, at 12. At trial, the Commonwealth presented several eyewitnesses to each of the robberies, as well as a surveillance videotape of the robbery and murder. The final prosecution witness was Officer Cassidy's widow. Trial counsel's defense strategy was to argue that Appellant had fired his gun in a "panicky reaction" when Officer Cassidy interrupted the robbery in progress. See id. at 48, 53 (defense opening statement); id., 11/19/07, at 36 (defense closing argument). After the Commonwealth rested on November 18, 2009, the defense proffered no evidence and immediately also rested. The next day, following closing arguments and instructions from the court, the jury began its deliberations and within hours found Appellant guilty of first-degree murder.
A two-day penalty phase hearing began on November 20, 2009. Officer Cassidy's adult children and his widow expressed, via letters written to the court, the effects of Officer Cassidy's death on the family. Appellant presented the testimony of his mother, grandmother, and sister. The jury found three aggravating circumstances, to wit, killing of a peace officer in the performance of his duties, 42 Pa.C.S. § 9711(d)(1); killing committed during the perpetration of a felony, § 9711(d)(6); and significant history of violent felony convictions, § 9711(d)(9), and one mitigating circumstance, to wit, any other evidence of mitigation, the "catch-all" mitigator, § 9711(e)(8). The jury also found that the aggravating circumstances outweighed the mitigating circumstances, and accordingly determined that Appellant should be sentenced to death.
On direct appeal before this Court, Appellant raises four issues, three alleging trial court error and one alleging prosecutorial misconduct.*fn1
Sufficiency of the Evidence
Before addressing the four issues raised by Appellant, we must 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 this 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.
There are three elements of first-degree murder: (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). As set forth in the third element, first-degree murder is an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a) and (d). "Premeditation and deliberation exist whenever the assailant possesses the conscious purpose to bring about death." Commonwealth v. Drumheller, 808 A.2d 893, 910 (Pa. 2002). The law does not require a lengthy period of premeditation; indeed, the design to kill can be formulated in a fraction of a second. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009); Drumheller, supra; Commonwealth v. Earnest, 21 A.2d 38, 40 (Pa. 1941) ("Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate and premeditated."). 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 306-07; Commonwealth v. Wright, 961 A.2d 119, 130-31 (Pa. 2008). Whether the accused had formed the specific intent to kill is a question of fact to be determined by the jury. Commonwealth v. Carroll, 194 A.2d 911, 916 (Pa. 1963).
Based on our review of the certified record in the case before us, we conclude that the evidence was sufficient to support Appellant's first-degree murder conviction. One of the medical examiners who participated in the autopsy of Officer Cassidy's body testified that the officer had sustained a single gunshot wound to the head, with the bullet entering above his right eyebrow and lodging in the back of his brain. N.T. Trial, 11/18/09, at 130-31. The medical examiner concluded that a deadly weapon had been used on a vital part of Officer Cassidy's body, resulting in his death. Id. at 134-35.
The evidence that Appellant was responsible for the killing was overwhelming. Three eyewitnesses (two employees and one customer) identified Appellant as the assailant. Id., 11/16/09, at 66-67, 76-79, 121-23; Id., 11/17/09, at 4-5. The two employees recognized Appellant when he entered the Dunkin' Donuts on October 31, 2007, as the man who had robbed them approximately six weeks before. Id., 11/16/09, at 77-78, 123-24, 129-30. One of Appellant's cousins and a family friend each testified that Appellant had admitted to them that he had killed the officer. Id., 11/17/09, at 32, 68-69. The murder weapon and Officer Cassidy's service revolver were found in a trash bag in the drop ceiling of the home of one of Appellant's relatives, and Appellant's DNA was detected on both firearms. Id., 11/17/09, at 131-35, 143; Id., 11/18/09, at 102-04, 118-19.
A surveillance camera captured the robbery and murder on videotape. The videotape was played at trial, accompanied by the explanatory testimony from one of the Dunkin' Donuts employees who had been working at the time of the robbery and murder. The videotape showed Appellant entering the front door of the Dunkin' Donuts, pushing a customer to the side while holding a gun, glancing over his shoulder when Officer Cassidy came to the front door, and turning around to face the front door and the officer. Then, as revealed by the video, Appellant took two steps in Officer Cassidy's direction, raised his gun, and aimed it toward Officer Cassidy, who remained near the front door. The officer immediately fell, and Appellant fled through the front door, past the fallen officer; as Appellant was fleeing, he bent over and picked up the officer's service revolver from the ground. N.T. Trial, 11/16/09, at 94-108. The crime scene investigator who had studied the scene of the murder and viewed the surveillance videotape, testified that Appellant had been approximately three feet from Officer Cassidy at the time of the shooting. Id. at 144-45.
The above-summarized evidence is sufficient to establish all three elements of first-degree murder, i.e., that Appellant had formulated the specific intent to kill Officer Cassidy and had fatally acted on that intent. We turn now to the issues raised by Appellant.
Evidence of prior robberies
In his first issue, Appellant asserts that the trial court erred by admitting evidence of the five previous robberies to which Appellant had pled guilty in front of the jury at the beginning of his trial. Appellant argues that the evidence was not merely irrelevant, but also "inflammatory and otherwise unduly prejudicial." Appellant's Brief at 13. In response, the Commonwealth argues that evidence of Appellant's prior robberies was relevant to show Appellant's intent, to disprove mistake or accident, to demonstrate common scheme, plan or design, and to show the history and factual development of the case. Commonwealth's Brief at 14-15 (citing Pa.R.E. 404(b)(2)). The Commonwealth emphasizes that the evidence concerning Appellant's prior robberies established that, over the course of Appellant's crime spree, he became increasingly angry, more threatening, more violent, and more inclined to use force. Id. at 14-15.
The trial court held that the evidence of Appellant's prior robberies was properly admitted to prove Appellant's intent and absence of mistake or accident. Trial Court Opinion, dated 4/28/10, at 5-7 (citing Pa.R.E. 404(b)). In agreement with the Commonwealth, the trial court found that the evidence of Appellant's five prior robberies established his increasingly violent and aggressive conduct. Id. at 7. The trial court also found that the probative value of the evidence outweighed its potential for prejudice, particularly since the evidence "was not sensational or inflammatory and was introduced without theatrics." Id. at 8. Finally, the trial court determined that, even if it had been error to admit evidence of the prior robberies, the error was harmless because the Commonwealth's other evidence overwhelmingly supported Appellant's conviction of first-degree murder. Id.
In general, relevant evidence, i.e., evidence that "logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable[,] or supports a reasonable inference or presumption regarding a material fact," is admissible. Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006). However, relevant evidence may be excluded if its probative value is outweighed by the likelihood of unfair prejudice. Id. at 539 & n.6 (citing Pa.R.E. 403). Admission of evidence rests within the sound discretion of the trial court, which must balance evidentiary value against the potential dangers of unfairly prejudicing the accused, inflaming the passions of the jury, or confusing the jury. Commonwealth v. Flor, 998 A.2d 606, 623 (Pa. 2010). We will reverse a trial court's decision as to admissibility of evidence only if we conclude that the trial court has abused its discretion. Id.
Under our rules of evidence, evidence of an accused's other crimes is not admissible to show an accused's bad character or criminal propensity, but it may be admissible for some other legitimate purpose, as set forth in Pennsylvania Rule of Evidence 404(b).
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, ...