Argued May 7, 2013.
Appeal from the Judgment of Sentence entered on
07/21/2009 in the Court of Common Pleas Criminal Division of Montgomery
County at No. CP-46-CR-0005181-2005 (Post-sentence motions denied on
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Michael Wiseman, Esq., Philadelphia, for Harold Murray IV.
Robert Martin Falin, Esq., Montgomery County District Attorney's Office, Amy Zapp, Esq., Harrisburg, PA Office of Attorney General, Kevin R. Steele, Esq., Norristown, for Commonwealth of Pennsylvania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.
Appellant, Harold Murray, IV, appeals from an order of the Montgomery County Court of Common Pleas, which imposed a judgment of sentence of death following his conviction of, inter alia, three counts of first degree murder. For the reasons that follow, we affirm the convictions in this regard, but vacate the imposition of the sentence of death, and remand for a new penalty hearing.
I. Factual and Procedural Backgrounds
During the early morning hours of January 30, 2005, Shawne Mims, Vernon Brewer, and other individuals were smoking
crack cocaine. At some point during those early morning hours, Mims, Brewer, and Kristen Holmes decided to buy more cocaine, and therefore sought to contact someone at 110 Chain Street in Norristown, Montgomery County, which was a known drug house. A woman, known as Jennifer Gray and by her real name, Jennifer Pennington, answered the phone, and told the trio that she would attempt to procure more crack cocaine for them.
Immediately afterward, Mims, Brewer, and Holmes drove to 110 Chain Street, and Holmes went inside to speak with Pennington. Pennington had been unable to obtain any crack cocaine, and Holmes returned to the car. The three left the house, but then parked a few houses away in anticipation of Pennington calling with information regarding the drugs. Several minutes later, Pennington came outside, directed them to drive to the residence of Jackie Clemens, and went with them.
When they arrived at Clemens' house, the two women remained in the car while Brewer and Mims went inside, where they found Appellant and Ernest Morris. Brewer and Mims proceeded to rob Appellant and Morris at gunpoint, stealing money, drugs, and cell phones. After completing the robbery, the four who had driven together to Clemens' house went to a Motel 6 in King of Prussia, where they smoked crack cocaine, drank tequila, and had sex with each other. Brewer, Mims, and Pennington later left Holmes at the Motel 6, and went to a nearby Best Western hotel, where they continued to ingest more narcotics. While at the Best Western, Pennington began using the cell phones Brewer and Mims had stolen from Appellant and Morris. Brewer would later testify that, during one of Pennington's conversations on one of the stolen phones, she said " Oh, my God, they're going to kill me. They're going to kill me." Notes of Testimony (N.T.), Apr. 15, 2009 at 153.
Later in the evening of January 30, Appellant, Morris, and a third man, Maurice Jones, began searching for Mims, Brewer, and Pennington. Apparently, during the robbery, Appellant had recognized Mims, and had come to believe that Pennington was also involved. At approximately 11:30 p.m. on January 30, the three men broke into the home of Mims' girlfriend, Malaika Bolen, armed with guns: Appellant with an AK-47 rifle; Morris with a .357 revolver; and Jones with a 9 mm semi-automatic handgun. They demanded to know Morris' whereabouts, and, when they were unsuccessful, they forced Bolen and three children into a basement and barricaded the door shut.
Eventually, and after inquiring to several acquaintances concerning the whereabouts of Mims and Pennington, Appellant and his cohorts learned that Pennington was at a Wawa convenience store in King of Prussia. Between 2:00 and 2:30 a.m. (now January 31, 2005), they arrived at the store, saw Pennington inside, and forced her into their vehicle. Surveillance video from inside of the store revealed Pennington present during that time, and clearly pregnant. From Pennington, the men learned that Mims was located in Room 123 of the aforementioned Best Western hotel, and they all went to the hotel and parked outside of Room 123.
Appellant and Morris decided to go into the room, while Jones stayed in the car to guard Pennington. At 3:20 a.m., using an electronic keycard forcibly taken by Appellant from Pennington, Appellant and Morris entered the room, each shot a naked and unarmed Mims once in the back with the AK-47 and .357 revolver, respectively, and fled the scene with Pennington still in the car. Mims died in the hotel room, the
bullets having caused catastrophic damage to several major organs.
The three men then drove Pennington to Fairmount Park in Philadelphia. They forced Pennington from the car and Morris shot her twice in the face with the .357 revolver. Pennington died from her wounds, and her unborn baby did not survive. Appellant and his conspirators then returned to the Best Western to search for their stolen items, and eventually fled to Appellant's apartment in Philadelphia.
At approximately 4:19 a.m., Philadelphia Police responded to a report of a body in Fairmount Park. By 4:30 a.m., the police had arrived at Fairmount Park and detectives discovered the body of Jennifer Pennington. A search of her body revealed a receipt for the Best Western hotel, Room 123, in the name of Shawne Mims. Philadelphia homicide detectives and Montgomery County District Attorney detectives went to the hotel, entered the room with a key given to them by the hotel manager, and discovered Mims' body.
After a lengthy investigation involving both Montgomery County and Philadelphia detectives, the Commonwealth filed a criminal complaint against Appellant on March 24, 2005, charging him with three counts of first degree murder in the deaths of Mims, Pennington, and Pennington's unborn child, as well as various other offenses related to the murders and home invasion of the Bolen residence. On May 27, 2005, Philadelphia and Montgomery County authorities learned that Appellant was residing in an apartment in Philadelphia. The task force entered the building and arrested Appellant who, immediately upon being taken into custody, stated to the arresting officers, " I'm tired of running. Let's get this over with and I'll be out in two years." N.T., Apr. 23, 2009 at 172-73. Following a preliminary hearing, the Commonwealth filed a notice of intent to seek the death penalty.
While Appellant was in prison, he implicated himself in the murders in conversations with an acquaintance and fellow inmate, Eric Sadler. According to Sadler, who would eventually testify before an investigating grand jury, Appellant indicated that, following being robbed, he felt belittled and disrespected, and thus began the hunt for those whom he felt responsible for the robbery: Mims and Pennington. He related to Sadler how, during the twenty-four hours following the robbery, he invaded the Bolen residence, inquired from other acquaintances if they knew the whereabouts of Mims and Pennington, and eventually discovered Pennington at the King of Prussia Wawa store during the early morning hours of January 31. Appellant further told Sadler that he gave Pennington drugs and went to the Best Western. He said that, upon arriving there, and while Jones guarded Pennington in the car, he " showed" Mims.
A joint trial for all three defendants— Appellant, Morris, and Jones— was scheduled to begin in January of 2006. In the course thereof, on September 13, 2005, Attorney Daniel-Paul Alva entered his appearance on Appellant's behalf. Prior to the beginning of trial, Attorney Alva indicated to the trial court that, for personal reasons, he had no inclination to continue to satisfy the educational requirements of Pa. R.Crim.P. 801, regarding the qualification of capital trial counsel. The context
and exact content of the dialogue between the trial court and Attorney Alva are not of record, but unquestionably led to the trial court removing Attorney Alva as lead counsel and appointing new counsel for Appellant.
Trial subsequently commenced on January 12, 2006, but the court declared a mistrial after opening statements. Appellant and his co-defendants attempted to bar re-trial on double jeopardy grounds and, interestingly, Attorney Alva took the lead in representing Appellant in that process. Subsequently, the trial court denied the motion, the Superior Court affirmed in January of 2008, and this Court denied discretionary review in September of 2008.
Accordingly, the trial court scheduled the second trial to begin on March 30, 2009; this trial, however, would be for
Appellant alone, as his co-defendants' appeals regarding their double jeopardy challenges were still proceeding. Despite his earlier replacement, Appellant sought to have Attorney Alva, who was regarded as one of the most experienced homicide attorneys in the Commonwealth, again represent him as lead guilt phase counsel. The trial court accordingly held a pre-trial, evidentiary hearing on March 3, 2009, in order to determine Attorney Alva's compliance with Rule 801 and his concomitant eligibility to represent Appellant as lead guilt phase counsel. At the hearing, the court first noted that Attorney Alva's entry of appearance on September 13, 2005, remained valid, and supported his status as continuing counsel in the case. Accordingly, in the view of the trial court, at the time of his appearance Attorney Alva needed only six hours of CLE capital qualification credits in order to be eligible to represent Appellant. With that, the court directed Attorney Alva to testify regarding his compliance (or lack thereof) with Rule 801.
At the commencement of his testimony, Attorney Alva averred to the court that he was currently not in compliance with the eighteen-hour educational standard set forth in the current rule. See N.T., Mar. 3, 2009 at 12. He then asserted, however, that at the time of this Court's June 4, 2004, order phasing-in the increased educational requirements for capital counsel, he " was one of the instructors who gave the courses on qualifying to try death penalty cases." Id. Accordingly, not only did he have enough hours at the time of his entry of appearance, he " received double credits for actually being a presenter and having materials." Id. Attorney Alva stated that he stopped taking capital case CLE courses because he no longer wanted to make closing arguments in the penalty phase of capital trials, and acknowledged during the March 3 hearing that he had misunderstood the Rule 801 compliance requirement to apply only to attorneys participating as lead counsel in penalty phases. Id. at 13-15. Attorney Alva then noted,
ATTORNEY ALVA: Well, Judge, clearly my entry of appearance was entered 9-13[-]2005. And I state to within a three-year period before that, I had the requisite 18 hours. I have not kept them up since. I don't have an hour since we first tried this case. That I will state.
THE COURT: You're saying you had 18 hours during the three-year period prior to your entry of appearance? You had 18 hours? You had six at the time, because that's why you thought you could stay in the case, because that was all that was required then was six.
ATTORNEY ALVA: Judge, I have misstated. I cannot aver as an officer of the Court that I had a full 18. I would have to check that.
Id. at 29-30. The court then ended the hearing by indicating its belief that Appellant could not waive the Rule 801 requirements in order to retain Attorney Alva as lead guilt phase counsel, even if Appellant wanted only Attorney Alva to represent him.
When proceedings reconvened on March 30 for several pre-trial matters, the trial court began by ruling from the bench regarding Attorney Alva's eligibility to serve
as guilt phase counsel. In the court's view, " and following in depth research, and exhaustive research and consultation with our criminal administrative judge here," N.T., Mar. 30, 2009 at 4, Attorney Alva was qualified to serve as guilt phase counsel under the phase-in provisions of Rule 801 because, at least three years prior to having entered his appearance, Attorney Alva possessed six capital case CLE credits. The court then conducted a colloquy of Appellant, who re-affirmed his adamant position that he desired Attorney Alva to represent him.
The case proceeded to trial, during which the Commonwealth presented the testimony of Vernon Brewer who, as referenced above, had been with Shawne Mims, Kristen Holmes, and Jennifer Pennington during the night of January 30, 2005. Brewer testified that, following the robbery of Appellant and Morris, the four of them went to the Motel 6 in King of Prussia. Brewer stated that, during their time at the Motel 6, Pennington began using the mobile phones that he and Mims had stolen from Appellant and Morris during the robbery. At one point, someone " called the cell phone and Jen answered and they told her not to come back to Norristown. And she started spazzing out, ‘ Oh, my God, they're going to kill me. They're going to kill me.’ " N.T., Apr. 15, 2009 at 153. Attorney Alva objected at sidebar that the statement was impermissible hearsay, but the trial court overruled on the grounds that it constituted an excited utterance.
The Commonwealth further elicited the testimony of various crime scene experts, who testified that Mims was shot with bullets consistent with both an AK-47 assault rifle and a .357 revolver; and Pennington was killed with a .357 revolver. To support this testimony, the Commonwealth sought to introduce three photographs of the deceased Jennifer Pennington, specifically the location of entrance and exit wounds in her face and head, to depict for the jury evidence of the specific intent to kill her. Over Appellant's objection, the court permitted the publication of these photographs to the jury, but for less than thirty seconds each, as relevant evidence depicting Appellant's specific intent to kill. See N.T., Apr. 17, 2009 at 61-68.
Afterwards, the Commonwealth called Eric Sadler, the aforementioned acquaintance of Appellant who had testified before a grand jury to what Appellant had told him occurred during the events of January 30 and 31, 2005. Sadler and Appellant first became acquainted some years prior, when Appellant and Sadler's brother were incarcerated at the same time. However, when the relevant conversation occurred, Appellant and Sadler were incarcerated together. At the commencement of his trial testimony, the following exchange between the Commonwealth's attorney and Sadler occurred:
THE COMMONWEALTH: Okay. I want to ask you if you know some people. I want to ask you if you know the defendant, Mr. Murray?
THE COMMONWEALTH: Is he a friend of yours?
THE COMMONWEALTH: Do you know him by any nicknames?
THE COMMONWEALTH: Any ...