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Commonwealth v. Arrington

Supreme Court of Pennsylvania

February 28, 2014


Argued March 10, 2010.

Submitted: November 4, 2013.

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Appeal from the Judgment of Sentence entered on 02/22/2000 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0812071-1998.

For Arrington, Lance, Appellant: Jack L. Gruenstein, Esq., Marshall, Dennehey, Warner, Coleman & Goggin.

For Commonwealth of Pennsylvania, Appellee: Hugh J. Burns, Esq., William George Young, Esq., Philadelphia District Attorney's Office; Amy Zapp, Esq., PA Office of Attorney General.



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Appellant Lance Arrington appeals from the sentence of death imposed by the Philadelphia County Common Pleas Court after a jury convicted him of first-degree murder and violating the Uniform Firearms Act. For the reasons stated herein, we affirm Appellant's conviction and judgment of sentence.[2]

The record indicates that Appellant began dating the victim, Tondra Dennis, after he moved to Philadelphia in July, 1993. As the relationship progressed, Tondra's friends observed bruises, scars, and bite marks on her body that she attributed to Appellant, whom she described as abusive. In the spring of 1995, Tondra met a man named Cleveland English and secretly began spending time with him. As she grew closer to English, they discussed marriage, but Tondra was concerned about leaving Appellant. When English visited her at a street festival in June, 1995, Tondra was " horrified" and ordered English to stay away from her because Appellant carried a gun, and would shoot English without hesitation. Notes of Testimony (" N.T." ), Feb. 10, 2000, at 124. English obeyed Tondra's command and avoided her for the remainder of the day. One of Tondra's closest friends, Fay Millner, testified that during the time that she and Tondra occupied a vendor booth at the street festival, and presumably after English's departure, Appellant hid behind a tree and stared at Tondra for approximately one hour. See N.T., Feb. 11, 2000, at 31.

On October 3, 1995, Tondra filed a complaint against Appellant with Philadelphia Detective Jacqueline Hart and reported several instances of physical and emotional abuse including beatings, death threats, and a break-in at her parents' home. To support her claims, she produced photographs of her injuries and an audiotape that contained a recorded telephone message in which Appellant threatened to kill her and her family. The photographs were consistent with Tondra's physical appearance at the time of the interview; Detective

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Hart observed numerous signs of physical abuse on Tondra's body including facial bruising, a black eye, and a bite mark on Tondra's left arm. At the conclusion of the interview, Detective Hart charged Appellant with multiple crimes.

Tondra also contacted Maureen Welsh, a parole officer who had been supervising Appellant since July, 1993.[3] Tondra gave a statement to Officer Welsh, provided a copy of the audiotaped death threats, and allowed the officer to photograph her injuries. Upon listening to the audiotape, from which she was able to positively identify Appellant's voice, Officer Welsh advised Tondra to avoid her parents' home and stay at a secure location. The following day, as Officer Welsh was discussing the matter with her supervisor, she received a frantic telephone call from Tondra's father informing her that Appellant was pacing back and forth in front of the Dennis residence. Based on that information, Officer Welsh accompanied a team of parole agents to the house with orders to detain Appellant. Shortly thereafter, when the agents arrested Appellant on a nearby street, he was carrying a black gym bag that contained a bolt cutter and a dead bolt that had been removed surreptitiously from the rear entrance to the Dennis residence.

Following his arrest, Appellant was transported to the state of New York for parole revocation proceedings. A hearing was scheduled for January 25, 1996, and New York parole revocation specialist Darcella Jones telephoned Tondra numerous times to secure her attendance. Based on their telephone conversations, Jones assumed that Tondra would testify against Appellant at the hearing; however, on January 2, 1996, Jones received a notarized letter from Tondra indicating that Appellant was innocent and that Tondra fabricated all of the allegations to punish Appellant after he informed her that he had been unfaithful to her. Jones wrote a letter to Tondra imploring her to testify against Appellant and received a second letter from Tondra, on January 22, 1996, reiterating that the charges were false and that she would not be attending the hearing. When Officer Welsh intervened on Jones's behalf, Tondra explained that if she testified against Appellant, she would be killed. See N.T., Feb. 9, 2000, at 88. Unable to persuade Tondra to attend the parole revocation hearing, Jones could not sustain the charges against Appellant, and he was released from custody on January 30, 1996.

Tondra Dennis was murdered at 11:30 p.m. on February 9, 1996, ten days after Appellant was released from jail. Lucille Fauntleroy testified that on the night in question, she was making coffee in her Philadelphia home when she heard a commotion at the rear of the house. She extinguished the lights and walked to the kitchen window, which overlooks 54th Street, and she observed a man and a woman arguing near the curb. Although she had a clear view of the couple, Fauntleroy could not see the man's face because he was standing with his back to the window.[4] As Fauntleroy turned to walk away,

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she heard a " pow" sound. N.T., Feb. 11, 2000, at 12. When she returned her gaze to the window, the woman was no longer visible, and the man was running along 54th Street. Fauntleroy never saw the man's face, and no one else witnessed the incident.

Philadelphia Police Officer Crystal White was patrolling nearby when she received a radio dispatch indicating that an individual had been shot at the intersection of 54th and Upland Streets. She drove to the intersection and found Tondra's lifeless body lying in the street approximately 357 feet from the residence Appellant previously shared with his mother. Two nine-millimeter cartridge casings were recovered near the body, but no weapons were found. An autopsy revealed that Tondra had been shot once in the neck with a nine-millimeter handgun, and the bullet severed her spinal cord, which caused her to suffocate. The medical examiner opined that the manner of death was homicide.

The ensuing investigation stalled when the lead investigator, Detective William Egenlauf, broke his leg and took an extended leave of absence followed by six months of restricted duty. As a result, the case was re-assigned to Philadelphia Homicide Detective Thomas Kane in January, 1998. After speaking with numerous individuals in Philadelphia and New York who were acquainted with Appellant, Detective Kane obtained an arrest warrant charging Appellant with the murder of Tondra Dennis. The arrest warrant was forwarded to New York authorities who believed Appellant was living in an apartment building located in the Bronx, and, on April 3, 1998, four detectives from New York City's 44th Precinct proceeded to that address to execute the warrant. When no one answered the door, one of the detectives peered through a window and saw an individual who matched Appellant's description. As Appellant was wanted for murder, the detectives summoned an emergency response team that surrounded the building and initiated contact with Appellant through a hostage negotiator. Approximately two hours and fifteen minutes later, Appellant surrendered peacefully to law enforcement officers.

Appellant maintained his innocence and requested a jury trial. Over the course of the eight-day trial, the Commonwealth sought to prove Appellant's guilt by documenting his abusive relationship with Tondra, establishing that he was in Philadelphia on the night of the murder, and showing that he harassed other girlfriends in a similar manner. To accomplish the second and third objectives, the Commonwealth presented testimony that Appellant patronized a Philadelphia pizzeria hours before Tondra was killed, notwithstanding that he contended that he was in New York at the time, and that Appellant attempted to control three other female partners through acts of violence and intimidation that prompted criminal charges and resulted in convictions for arson and assault. N.T., Feb. 2, 2000, at 56-58. Appellant downplayed the significance of his prior convictions, claimed that he and Tondra reconciled shortly before her death, and called an alibi witness, Esperita Granville, who testified that Appellant continuously resided in New York City from February through mid-March, 1996. According to Granville, Appellant moved into her Bronx apartment prior to the murder, and he returned home each night by 9:00 p.m. to comply with a curfew imposed by the New York State Board of Parole.

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Appellant was convicted of first-degree murder and persons not to possess firearms on February 17, 2000.[5] Following the penalty hearing, the jury found that the single aggravating factor - that Appellant had a significant history of violent felony convictions, 42 Pa.C.S. § 9711(d)(9), outweighed the mitigation evidence of Appellant's " fatherhood," which the jury found pursuant to the catchall mitigating circumstance codified at 42 Pa.C.S. § 9711(e)(8) (relating to " any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense" ). Sentencing Verdict Slip, Feb. 22, 2000, at 1.[6] Accordingly, the jury rendered a verdict of death. On February 22, 2000, the trial court sentenced Appellant to death for the murder conviction and imposed no further penalty for the firearm offense. Appellant obtained new counsel and filed post-sentence motions, which were denied. This direct appeal followed.

I. Sufficiency of the Evidence

We begin, as we must in every capital case, by reviewing the evidence to ensure that it is sufficient to support the first-degree murder conviction. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 114 (Pa. 2004); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n.3 (Pa. 1982). In conducting our review, we must determine whether the evidence, 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. Laird, 605 Pa. 137, 988 A.2d 618, 624 (Pa. 2010). The Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence, and the jury, in passing upon the weight and credibility of each witness's testimony, is free to believe all, part, or none of the evidence. Id.

In the instant case, Appellant challenges the sufficiency of the evidence with respect to both of his convictions. He asserts that neither offense was proven beyond a reasonable doubt because the victim was killed with a handgun, and the Commonwealth offered no proof that he possessed a gun on the night of the murder.

In order to sustain a conviction for first-degree murder, the Commonwealth must prove that: (1) 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. Commonwealth v. Houser, 610 Pa. 264, 18 A.3d 1128, 1133 (Pa. 2011). Specific intent and malice may be established through circumstantial evidence, such as the use of a deadly weapon on a vital part of the victim's body. Id. at 1133-34. A conviction for unlawful possession of a handgun under 18 Pa.C.S. § 6105(a)(1) requires proof that the defendant possessed a firearm and that he had a prior conviction for an offense listed in section 6105(b). The term " firearm" is defined in section 6105(i) as any weapon that is " designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon."

Appellant concedes that Tondra's killing was committed with malice and a specific intent to kill, and that he had a prior conviction for an offense enumerated in 18 Pa.C.S. § 6105(b). He argues, however, that the evidence was insufficient to support

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his convictions of first degree murder and unlawful possession of a firearm because there was no proof that he possessed a firearm on the night of the murder. We disagree. The record establishes that a man armed with a nine-millimeter handgun shot Tondra in the neck during an altercation that occurred near the home of Appellant's mother. Additional testimony established that Appellant had been romantically involved with Tondra, that he had beaten her on numerous occasions, that he had threatened to kill Tondra and her family, and that New York authorities attempted to revoke his parole shortly before the murder because Tondra reported the threats and beatings to his parole officer. Viewed in the light most favorable to the Commonwealth, this circumstantial evidence was clearly sufficient to support the conclusion that Appellant was responsible for Tondra's murder. The jury was free to infer that upon his release from prison, Appellant obtained a handgun, travelled from New York to Philadelphia, and shot Tondra in the neck with malice and the specific intent to kill because she wanted to end their relationship, and that he discarded the handgun after the shooting. Accordingly, Appellant's challenges to the sufficiency of the evidence fail.

II. Weight of the Evidence

In a similar vein, Appellant contends that the verdict was contrary to the weight of the evidence because no one saw him carrying a handgun on the night of the murder.

A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Smith, 604 Pa. 126, 985 A.2d 886, 897 (Pa. 2009) (quoting Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873, 879 (Pa. 2008)).

The trial court rejected Appellant's weight-of-the-evidence claim, finding that the jury's determination of guilt was adequately supported by credible evidence. See Trial Court Opinion, Feb. 28, 2007, at 13. Based on our review of the record, we discern no abuse of discretion and affirm the trial court's ruling.

III. Evidence of Other Criminal Activity

In his third issue, Appellant argues that the trial court abused its discretion in admitting evidence of additional crimes committed against three other girlfriends, their friends, and their families.[7]

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Appellant claims these matters were completely irrelevant and served only to inflame the passions of the jury, prompting it to convict him of Tondra's murder on the theory that he has a propensity to commit acts of violence against women. In the alternative, Appellant argues that if the evidence was relevant to this case, its probative value was substantially outweighed by its prejudicial effect on the jury.

The Commonwealth acknowledges that evidence of other bad acts is inadmissible to demonstrate a propensity for violence or unsavory character, but maintains that the evidence in question was introduced for the legitimate purpose of proving a common scheme to control girlfriends through violence and intimidation.[8] Noting that it was forced to rely extensively upon circumstantial evidence in this case, the Commonwealth asserts that the probative value of the disputed evidence significantly outweighed its prejudicial impact, which was tempered by repeated cautionary instructions directing the jury not to view Appellant's prior conduct as evidence of bad character or criminal tendencies.

Our standard of review is well-settled. The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb an evidentiary ruling absent an abuse of that discretion. Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (Pa. 2010). Pennsylvania Rule of Evidence 404(b) provides that " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Pa.R.E. 404(b)(1). Such evidence may be admitted, however, if offered for a valid purpose such as proving the existence of a common scheme, establishing an individual's motive, intent, or plan, or identifying a criminal defendant as the perpetrator of the offense charged. See Pa.R.E. 404(b)(2); see also Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 337 (Pa. 2011) (citing Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (Pa. 2008)). In order for evidence of other criminal activity to be admissible to establish a common scheme, two conditions must be satisfied: (1) the probative value of the evidence must outweigh its potential for prejudice against the defendant, see Pa.R.E. 404(b)(3); and (2) " a comparison of the crimes must establish a logical connection between them." Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1318 (Pa. 1995).

In the case at bar, the Commonwealth presented evidence that Appellant physically assaulted three other girlfriends when they attempted to break up with him or interacted with other men. The first incident involved Victoria Dexter, who started dating Appellant in 1978 when she was a teenager living in New York City.

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Dexter testified that as the relationship progressed, Appellant began to follow her and telephone her incessantly. When she attempted to end the relationship, he threatened to harm her older brother and " scar her for life." N.T., Feb. 8, 2000, at 107. Appellant continued to follow Dexter and instituted a campaign of harassment where he set fire to her apartment, slashed furniture, threw her belongings off a terrace, and inflicted two beatings upon her, one of which left a scar on Dexter's face. Dexter's brother, Michael, also suffered two unprovoked attacks during this period. In the first incident, Appellant struck Michael in the back of the head with a baseball bat, and, in the second, Appellant threw Michael to the ground and punched him in the face. These events resulted in criminal charges ...

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