Argued May 9, 2012
Appeal from the Judgment of Sentence entered on March 1, 2011 (post sentence motions denied on July 12, 2011), in the Court of Common Pleas, Criminal Division, of York County, at No. CP-67-CR-0007259-2009. Trial Court Judge: Gregory M. Snyder, Judge.
For Hector Manuel Morales, Appellant: Jeffrey Charles Marshall, Esq., York County Domestic Relations Office, Joanne Tyler-Floyd, Esq.
For Commonwealth of Pennsylvania, Appellee: Karen Eileen Comery, Esq., Amy Zapp, Esq., PA Office of Attorney General.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE McCAFFERY. Former Justice Orie Melvin did not participate in the decision of this case. Mr. Chief Justice Castille, Messrs. Justice Saylor, Eakin and Baer and Madame Justice Todd join the opinion.
MR. JUSTICE McCAFFERY
This is a direct appeal from a death sentence imposed after a jury convicted Appellant of one count of first-degree murder and one count of burglary. The jury concluded, with respect to imposition of sentence, that the aggravating circumstances (committing murder to prevent testimony in a possible criminal proceeding regarding a felony and committing a killing in perpetration of a felony) outweighed the mitigating circumstance (character and record). Upon review, we affirm.
The facts gleaned from the evidence adduced at trial, when viewed in the light most favorable to the Commonwealth as verdict-winner, are as follows. On June 23, 2009, Trooper Shawn Wolfe of the Pennsylvania State Police employed a confidential informant to make a controlled drug purchase of ten bags of heroin from
the eventual murder victim, Ronald Lee Simmons, Jr., at his residence in York. Simmons was arrested immediately thereafter. Notes of Testimony (" N.T." ) Trial, 1/18/11, at 196-200. Trooper Wolfe and Trooper Christopher Keppel then asked Simmons if he was willing to cooperate with them by leading them to his heroin supplier in order to effectuate that person's arrest. Simmons at first was hesitant because, as he stated to the troopers, he feared for his life should his supplier, who knew where he lived, learn of his cooperation with the police. N.T. Trial, 1/19/11, at 240-42. However, Simmons overcame his hesitation and agreed to contact his supplier -- a Hispanic male he knew only as " True" -- in order to arrange for the purchase of five bags of heroin. N.T. Trial, 1/18/11, at 207-09; N.T. Trial, 1/19/11, at 242. At the ensuing controlled drug purchase, " True" (who was later identified as Appellant herein, Hector Morales) and another individual were arrested. N.T. Trial, 1/18/11, at 209-11, 216-20. This incident appears to have also occurred on June 23, 2009.
See id. at 220. Appellant was charged with two counts of delivery of heroin and one count of criminal conspiracy to deliver heroin. Id. at 221.
Appellant's preliminary hearing on these charges was scheduled for July 16, 2009. Prior to that date, Appellant told a friend of his, Hector Perez, that he had been " set up" on a drug buy by an individual known as " Country," and that he was going to kill " Country." N.T. Trial, 1/19/11, at 431-32. Ronald Simmons was known by Appellant and others as " Country." N.T. Trial, 1/18/11, at 196-97, 238. Also prior to the preliminary hearing, Trooper Keppel telephoned Simmons to remind him of his need to appear at that proceeding. N.T. Trial, 1/19/11, at 247-48. Simmons replied that he was aware of the date of the proceeding and was making babysitting arrangements so that he could attend. Id. at 248.
On July 15, 2009, the day before the scheduled preliminary hearing, Appellant was with Melvin Miles in Lebanon. That evening, the two drove to York in a vehicle Miles had borrowed from Ricky Newson; they also picked up Newson along the way. In York, the three individuals spent a brief period of time at Miles's mother's house. N.T. Trial, 1/14/11, at 361-63. Then, at approximately 1:00 a.m. on July 16, 2009, Newson drove Appellant and Miles to an alleyway off Tremont Street in York and backed into a parking space. Id. at 363-65; N.T. Trial, 1/18/11, at 88. Miles was seated in the front passenger seat, and Appellant was seated in the back seat; Miles was dressed in a black " hoody" over a white tee shirt and a pair of jeans, while Appellant wore a short-sleeved white or light-colored shirt with a prominent design or designs on it and a pair of fatigue shorts. N.T. Trial, 1/14/11, at 363-64; N.T. Trial, 1/18/11, at 88-89. Miles and Newson believed that they were in the area to buy marijuana. N.T. Trial, 1/14/11, at 364; N.T. Trial, 1/18/11, at 89.
After the car was parked, Appellant got out and then walked around the corner and down the alley. He returned shortly and asked Miles to go with him, which Miles did, while Newson remained in the vehicle. N.T. Trial, 1/14/11, at 364-66; N.T. Trial, 1/18/11, at 90. Appellant then led Miles to the back door of a house where Appellant stated that he was going to kill the person who lived inside if he turned out to be the person who was going to testify against him at the preliminary hearing. Appellant asked Miles if he would accompany him into the house to assist in the deed. N.T. Trial, 1/14/11, at 367. Miles said that he would not and returned alone to the car. Id. at 367-68; N.T. Trial, 1/18/11, at 90. As Miles left,
Appellant struck the door of the residence; he had also, at some point, donned a pair of black-knitted gloves and a ski mask. N.T. Trial, 1/14/11, at 367. On his way back to the vehicle, Miles heard five or six gunshots. Id. at 369.
Unknown to Appellant, Miles, or Newson, Richard Portner was on the back porch of his residence on Tremont Street, watching the activity of the trio from the time Newson parked his vehicle there. Id. at 325-26. He observed a car with three occupants back into a parking space, and one occupant -- a short man wearing a shirt having designs -- get out of the vehicle and walk down the alley. He then saw this same person return to the vehicle, and he watched as a second occupant -- a taller man wearing a black hoody -- got out and accompanied the first man down the alley. Several minutes later, Portner saw the taller man in the black hoody return to the vehicle alone, and shortly thereafter, Portner heard gunshots. He then saw the short individual return to the car at a rapid pace. The vehicle took off after this man got into the car. Id. at 326-28.
At the time Newson had parked his vehicle in the alleyway, Simmons, his wife, and two children were in bed in their Tremont Street house. Simmons and his wife slept on the third floor of the house, where noise from their air conditioner muffled other sounds. Id. at 255. At the time they had gone to bed, the outside doors to the house were closed and locked. Id. at 261.
At approximately 1:00 a.m., Simmons's wife was awakened by her husband, who sprang out of bed and opened the bedroom door. Simmons then screamed, and his wife saw that he was in a struggle with an intruder. Id. at 256-58. The intruder was a man of short stature wearing a shirt with a design on it, and Simmons yelled that the intruder had a gun. Id. at 257-60. The wife heard several gunshots, after which the intruder ran off. Id. at 258. Simmons stated to his wife that he had been shot and then fell down the steps. Id. His wife called the police and waited for their arrival, noticing, as she waited, that the back door to the house had been forced open. Id. at 260-61. Simmons died after being taken to the hospital. An autopsy revealed that he had suffered six gunshot wounds, including a fatal shot to the chest; the other wounds were in the hands and arms, and appeared to be defensive wounds. Id. at 289-99, 306. His death was deemed a homicide. Id. at 306.
Immediately after Appellant had returned to Newson's vehicle, the trio drove to a convenience store to obtain gasoline and cigarettes. Appellant stated to his companions while en route to the store: " See what happens to witnesses," and criticized Miles for having left Appellant to act alone. Id. at 369-70. Appellant was also observed by his companions holding a handgun, from which he wiped fingerprints. Id.; N.T. Trial, 1/18/11, at 91-93. At the convenience store, while Miles was paying for gas, Appellant told Newson that he had killed the man who would have been testifying against him. N.T. Trial, 1/18/11, at 93. Appellant also used one of the squeegees available for use at the gas pumps to clean blood off his shoes. Id. at 93-94.
The group then drove to Lebanon. Id. at 95; N.T. Trial, 1/14/11, at 371. During the drive, Appellant recounted that he had killed a person named " Country" in order to prevent him from testifying at the impending court proceeding, and also provided details of the incident. N.T. Trial, 1/14/11, at 375; N.T. Trial, 1/18/11, at 95-96. Once in Lebanon, the group stopped at a gas station where Appellant burned his clothes in a trash bin behind the station. N.T. Trial, 1/14/11, at 375-76. The
owner of the station confirmed that a fire of unknown origin had occurred in the trash bin of his station during the night of July 16-17, 2009. N.T. Trial, 1/18/11, at 76-79.
The group then stopped at Miles's girlfriend's house, where they found an acquaintance or friend who had the nickname " Supreme." Appellant described the shooting to Supreme, stating: " Hey, yo, I got him, son. I told you he ain't going to be testifying against me in court." Id. at 98-99. At the house, Appellant placed the murder weapon in a shoebox in a closet in Miles's girlfriend's son's room. N.T. Trial, 1/14/11, at 373. Afterward, Appellant, Newson, and Supreme went to a bar and then to a hotel room that Newson had rented. Newson, however, left during the night. N.T. Trial, 1/18/11, at 99-100.
In the late morning, Appellant and Supreme joined Miles at his girlfriend's house, expressing displeasure and nervousness that Newson had left without indicating where he had gone. Appellant then told Miles that Newson had " to be getten [sic] rid of" and that Miles had to participate in the task this time. N.T. Trial, 1/14/11, at 376. Although Miles agreed to help Appellant, he had already decided that he would help Newson escape from harm. Id.
Newson returned to Lebanon and thereafter drove Miles, Appellant, and Supreme to York, during which time Appellant wiped fingerprints from the back seat of Newson's car. Id. at 377; N.T. Trial, 1/18/11, at 101-02. In York, the group stopped near Girard Park where Appellant, Miles, and Supreme got out of the vehicle, immediately after which Appellant kissed Miles on the cheek. N.T. Trial, 1/14/11, at 377. Appellant and Supreme then walked away. At that point, Miles told Newson that Appellant was going to kill him, and Miles suggested that they both drive away and flee from Appellant. They did so, returning to Lebanon. Id. at 377-78; N.T. Trial, 1/18/11, at 102-04. In Lebanon, Miles retrieved the gun used in the previous evening's shooting from its location in the shoebox in Miles's girlfriend's house. Miles and Newson then returned to York with the pistol and buried it in Albemarle Park. N.T. Trial, 1/14/11, at 378-79; N.T. Trial, 1/18/11, at 101, 104.
In the meantime, the York City Police Department had launched an investigation into the shooting death of Simmons. That investigation revealed that the victim was a confidential informant working with the Pennsylvania State Police, and was scheduled to testify against Appellant later on the morning of the shooting. The investigators also spoke with Richard Portner, the individual who had witnessed the activity around Newson's car on the evening of the killing. Based on the descriptions of the killer given by Portner and Simmons's wife, and considering the individuals that Simmons had disclosed to the police as being involved in the drug trade, the investigators compiled a list of possible suspects. From photographic arrays of these suspects, Portner identified Appellant as the man he had seen on the evening of the shooting. Portner noted Appellant's short stature, and added that when Appellant ran back to the car, his hands were in his pockets. N.T. Trial, 1/18/11, at 258-65.
Later, the police interviewed Miles, who then led them to where he had buried the gun in Albemarle Park. Id. at 267, 270-71. Following expert analysis, it was determined that it was the gun that had been used in the shooting death of Simmons. Id. at 159, 163. Additionally, a palm print taken from Simmons's back door was a match with Appellant's palm. Id. at 185-86. Finally, in July or August 2009, Appellant told Hector Perez that he was
aware that Miles had turned him in to the police and that he would seek revenge on Miles. N.T. Trial, 1/14/11, at 431-32. As previously noted, Appellant had told this same individual, Hector Perez, that he was planning to kill " Country" for setting up his arrest.
Appellant was arrested and charged with criminal homicide and burglary. At Appellant's arraignment, the Commonwealth filed its notice of intention to seek the death penalty based on four aggravating circumstances, namely those set forth at 42 Pa.C.S. § 9711(d)(5), (6), (7), and (15). Thereafter, Appellant filed a motion to compel discovery concerning the identity and location of the eyewitness who had seen Appellant outside of Simmons's house on the night of the murder (Mr. Portner). The Commonwealth opposed Appellant's request because of fears for the witness's safety, in light of the asserted aggravating circumstance that Appellant had killed a witness against him in a separate drug prosecution in order to prevent the witness's testimony. The Commonwealth delivered to Appellant a copy of the police interview with this witness, asserted that there was no agreement with the witness in exchange for testimony, and agreed to deliver to Appellant any criminal record that the witness might have had (it was later determined that there was none). Following a hearing held July 20, 2010, the trial court agreed with the Commonwealth's concerns for the witness's safety and, deeming the Commonwealth's efforts and Appellant's eventual right to cross-examine sufficient to safeguard Appellant's rights, denied the motion to compel discovery of the identification of the witness.
Appellant also filed a motion in limine requesting that the Commonwealth be barred from introducing statements made by the victim, namely that he feared for his life if Appellant were to learn that he had acted as an informant against Appellant. Following a hearing, the trial court denied this motion.
On January 10, 2011, jury selection began; it concluded four days later. Before the jury was sworn in, one of the selected venire persons -- Juror No. 131 - told the trial judge's tipstaff that she had come to the conclusion that she might possibly not be able to sentence a person to death. The tipstaff told the judge this information, and the judge convened a hearing whereat Juror No. 131 was questioned about her willingness or ability to fulfill her obligations as a juror. At the conclusion of the hearing, and over Appellant's objection, the trial court granted the Commonwealth's motion to replace Juror No. 131 with the first of the previously selected alternate jurors.
The guilt phase of trial commenced on January 14, 2011, and concluded on January 20, 2011. Among the many witnesses testifying for the Commonwealth were Miles, Newson, Portner, and Mrs. Simmons. Appellant was found guilty of first-degree murder and burglary. In so finding, the jury accepted the testimony favorable to the Commonwealth, as outlined above, and rejected the testimony offered by Appellant -- including Appellant's own testimony -- that suggested that the person who had shot Simmons was actually Melvin Miles, and that it was Appellant who feared Miles rather than the other way around.
At the penalty phase, the Commonwealth presented evidence of three aggravating factors, and Appellant presented evidence of three mitigating factors. The
jury found that the Commonwealth had proven two of the aggravating factors, which outweighed the one mitigating factor the jury had also found. The jury rendered a unanimous verdict of death. The trial court thereafter sentenced Appellant to death and an additional consecutive ten-to-twenty year sentence for the burglary conviction.
Appellant's post-sentence motions were denied, and Appellant appealed his sentence directly to this Court, presenting the following five issues for our review, reproduced here verbatim:
1. Whether the Commonwealth produced sufficient evidence to sustain convictions of burglary and murder[.]
2. Whether the verdicts of guilt were entered against the weight of the evidence[.]
3. Whether the trial court abused its discretion when it failed to compel the Commonwealth to disclose the identity and location of an eyewitness, and then permitted the said witness to testify at trial thereby denying Appellant a fair trial[.]
4. Whether the trial court abused its discretion when it permitted the Commonwealth to introduce statements made by the decedent which expressed his fear of Appellant[.]
5. Whether the trial court erred in dismissing a juror after the entire jury had been selected based upon the concerns expressed by the juror although the juror stated that she could follow the instruction of the court and that her beliefs would not substantially impair her ...