Argued Sept. 12, 2012.
Appeal from the judgment of sentence entered on
02/01/2011 in the Court of Common Pleas, Criminal Division, York County at
No. CP-67-CR-0003162-2009. Trial Court Judge: Gregory M. Snyder, Judge.
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Jeffrey Charles Marshall, Esq., Kearney & Marshall, P.C., York, Joanne Tyler-Floyd, Esq., Joanne Floyd, Esq., P.C., York, for Kevin Edward Mattison.
Duane Ramseur, Esq., York County District Attorney's Office, Amy Zapp, Harrisburg, PA Office of Attorney General, Timothy Jon Barker, Esq., York, for Commonwealth of Pennsylvania.
Before: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This is a direct appeal from an order of the York County Common Pleas Court, imposing a judgment of sentence of death following Appellant Kevin Edward Mattison's conviction for first degree murder. Because we conclude that the issues presented in this appeal lack merit, we affirm Appellant's sentence of death.
The record discloses that on the evening of December 9, 2008, Heather Johnson informed Tiffany Kenney that Kenney's
boyfriend, Christian Agosto (" the victim" ), was with another woman in his apartment. Outraged, Kenney decided to go to the victim's apartment and catch him in the act. Johnson asked Appellant, whom Kenney did not know, to drive his sports utility vehicle (" SUV" ) to pick up Kenney, and drive her to the victim's apartment. Appellant's wife, Julmeala Jung, and their young child were in the SUV with Appellant and Johnson when they picked up Kenney. Upon approaching the victim's residence, Kenney directed Appellant to park the SUV down the block from the apartment building to avoid being seen. Kenney and Johnson exited the vehicle, entered the apartment building, and banged on the victim's apartment door, receiving no response. Kenney then attempted to gain entry to the victim's apartment by calling him from Johnson's cell phone several times and requesting that he leave the apartment, not disclosing that she was lying in wait for him to open his door.
The victim did not succumb to Kenney's demands, and Kenney and Johnson reluctantly returned to the SUV. Once there, Appellant indicated that he could gain entry into the victim's apartment. Appellant and Kenney proceeded to the apartment door and Appellant inserted a screwdriver into the lock, opening it. Kenney entered the apartment and confronted the victim who, unbeknownst to Kenney, was in the bedroom with Kenney's childhood friend, Pavi-Elle Generette. Kenney began cursing at the victim and smacking him, moving the physical confrontation from the bedroom to the living room, with Generette remaining in the bedroom.
Amongst the chaos and apparently aware that the victim was a drug dealer, Appellant found it an opportune time to rob the victim of drugs. He entered the apartment with his gun drawn, pointed the gun at Kenney and the victim, and demanded that they get on the floor. Astonished at this turn of events, the victim and Kenney obeyed Appellant's directive and dropped to the floor. When Generette emerged from the bedroom and tried to leave, Appellant pointed the gun at her, seized her cell phone and purse, and told her to get on the floor with the others. Presumably to protect her, Appellant thereafter told Kenney to leave the apartment. Kenney complied and returned to the SUV. Appellant then repeatedly asked the victim, " Where's it at?" Although the victim initially denied having drugs, Appellant forced him to crawl on his stomach around the apartment to find them. Ultimately, the victim pointed to a cabinet above the stove in the kitchen where Appellant retrieved a large Ziploc bag of marijuana. After obtaining the drugs, Appellant walked toward the door to exit the apartment. Without provocation, Appellant then turned around and fired a single fatal shot into the victim's head as he was lying defenseless on the floor. The bullet fragmented, with three pieces lodging into the victim's scalp and one piece travelling through the victim's skull into his brain. Generette witnessed the shooting.
Kenney and Johnson were outside the apartment when they heard the gunshot. Appellant thereafter fled the apartment, returned to the SUV, and told Kenney, Johnson, and his wife that the woman inside the apartment had fired a weapon at him. Seven days after the shooting, the victim died from his injuries. Police discovered Appellant one month later hiding in the attic of a Maryland home. Generette identified Appellant as the shooter in a photo array days after the incident, and again in a live physical lineup at the York County prison. Appellant was thereafter charged with first degree murder and related offenses.
Prior to the instant shooting, Appellant was convicted of an unrelated murder in Maryland. Based on that prior conviction, the Commonwealth gave Appellant notice that one of the aggravating circumstances it would pursue in the penalty phase would be that Appellant was convicted of another murder before or at the time of the offense. 42 Pa.C.S. § 9711(d)(11). Thereafter, Appellant filed a pretrial motion for bifurcation of the jury, in which he sought to have separate juries impaneled for the guilt and penalty phases of trial. In support thereof, Appellant asserted that it was imperative for him to question potential penalty phase jurors regarding whether they could fairly determine his sentence after considering the highly prejudicial evidence of his prior Maryland murder. Appellant maintained that he could not voir dire jurors on this issue prior to trial as disclosure of his previous murder conviction would prejudice their determination of guilt. Thus, he concluded, separate juries were required for the two phases of trial. The trial court denied Appellant's motion for bifurcation, and directed that the same jury determine both guilt and penalty.
At trial, the Commonwealth presented the testimony of Generette, who described in detail how Appellant fatally shot the victim. Kenney testified regarding the events that occurred leading up to and following the murder. Finally, Appellant's wife, Jung corroborated Kenney's testimony that Appellant took Kenney to the victim's apartment, and testified that she stayed in the SUV with her young son during the whole incident. Jung further stated that when Appellant returned to the SUV from the victim's apartment, he was carrying a Timberland shoe box that he did not previously possess. After Jung testified to what occurred in the presence of Kenney and Johnson, and was asked about what she observed when she was alone with Appellant, defense counsel objected based on the doctrine of spousal immunity. The trial court overruled the objection, and permitted Jung to testify that Appellant was not carrying the Timberland shoe box when he and Jung returned to their home after the murder. Jung further explained that Appellant left their home later that evening wearing a hooded sweatshirt, and returned wearing a different sweatshirt. Appellant did not testify in his own defense, but rather challenged the credibility of the Commonwealth's witnesses, and suggested that the murder was a crime of passion likely committed by Kenney or Generette.
Following trial, the jury convicted Appellant of first degree murder, two counts of robbery, and one count of burglary. During the penalty phase of trial, Appellant presented mitigation evidence establishing that he: was designated as a special education student; had no relationship with his father and, therefore, lacked a father figure in his life; was incarcerated at a young age; had a commitment to his religion; was the father of two children; and had a good relationship with his mother and sister. The trial court declined to list each of the aforementioned mitigating factors on the verdict slip, and instead listed only the statutory catchall mitigating circumstance of " any other evidence of mitigation concerning the character and record of the appellant and the circumstances of his offense." 42 Pa.C.S. § 9711(e)(8) ( " catchall mitigating circumstance" ). The jury returned a verdict of death, determining that the aggravating circumstances of commission of the killing during the perpetration of a felony, id. § 9711(d)(6), and having been convicted of a prior murder, id. § 9711(d)(11), outweighed the catchall mitigating circumstance, which the jury specifically listed as Appellant's " relationship with family."
The trial court additionally imposed three consecutive prison terms of 10-20 years for each of Appellant's two robbery convictions and for his burglary conviction. While the court imposed the statutory maximum sentence on all three offenses, the sentences for one robbery conviction and the burglary conviction were outside the Pennsylvania Sentencing Guidelines. To explain its deviation from the Guidelines on the robbery conviction, the trial court cited Appellant's fatal shooting of the victim during the course of the robbery. Similarly, the trial court explained its deviation from the Guidelines on the burglary conviction by noting that Appellant murdered the victim who was the occupant of the apartment that he burglarized. Accordingly, Appellant's aggregate sentence was death, plus a consecutive sentence of 30-60 years of incarceration. The trial court subsequently issued an order directing Appellant to file a Statement of Matters Complained on Appeal, and he filed such statement in a timely manner.
I. Sufficiency of the Evidence for First Degree Murder
As in all death penalty direct appeals, regardless of whether the appellant raises a specific challenge, this Court examines whether the evidence is sufficient to support the conviction of first degree murder. Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 68 (2008); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In reviewing the sufficiency of the evidence, we examine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, support the jury's finding of all the elements of the offense beyond a reasonable doubt. Commonwealth v. Noel Matos Montalvo, 598 Pa. 263, 956 A.2d 926, 932 (2008). The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Id.
" To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill." Commonwealth v. Milton Montalvo, 604 Pa. 386, 986 A.2d 84, 92 (2009) (citing Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916, 920 (2008)); 18 Pa.C.S. § 2502(a). Specific intent to kill can be established through circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim's body. Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009 (2007).
We conclude, without hesitation, that when viewed in the light most favorable to the Commonwealth as verdict winner, the evidence is sufficient to support Appellant's conviction of first degree murder. Generette's eye witness testimony demonstrates that after Appellant demanded and then obtained the victim's drugs from his apartment, he fatally shot the victim in the head at close range while the victim was lying defenseless on the ground. Based on this evidence, the jury could have found beyond a reasonable doubt that Appellant shot the victim in a vital part of the body with the specific intent to kill.
Acknowledging that the victim was murdered by a single gunshot wound to his head, Appellant contends that the evidence
is insufficient to demonstrate that he was the person who inflicted the fatal injury. He contends that the physical evidence suggests that the murder was a crime of passion that occurred during a heated fight between lovers, and that such crime was concealed by longtime friends Kenney and Generette. Appellant maintains that Kenney had the strongest motive to commit murder, and asserts that her behavior after the shooting, i.e., failing to call the police immediately and instead going to the home of a friend, is indicative of her guilt.
Appellant's contention is not persuasive as it ignores the aforementioned law governing challenges to the sufficiency of the evidence by failing to view the evidence in the light most favorable to the Commonwealth as verdict winner. While it was proper for Appellant to present his theory of the case to the jury during the trial, such theory has no place in making the legal determination of whether the evidence of record is sufficient to sustain his murder conviction. As Generette's testimony established ...