Com. v. McCullum

• Citation: 529 Pa. 117,602 A.2d 313
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas McCULLUM, Appellant.
• Decision Date: 21 January 1992
• Court: United States State Supreme Court of Pennsylvania

Page 313

602 A.2d 313

529 Pa. 117

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas McCULLUM, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 23, 1991.

Decided Jan. 21, 1992.

[529 Pa. 120] Patrick J. Thomassey, Monroeville (court-appointed), for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., and Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

McDERMOTT, Justice.

Death came for Tillie Katz in her eighty-third year, not by nature's hand, but at the hands of a predatory felon. A review of the evidence in this case leaves no doubt that it was appellant's hands that crushed her skull with a steel pipe, raped, and robbed her.

The threnody begins when appellant arrived at the Riverview Center for Jewish Seniors and met Marion Gantt, a nursing assistant, between 5:00 P.M. and 5:30 P.M. on September 17, 1988. Ms. Gantt knew the appellant, and after they talked for about five minutes, the appellant left. That meeting was to put appellant near the scene and subsequently in the eye of the police. The events that followed began in the normal form. A second nursing assistant, Karen Carroll, tending another patient at the Riverview Apartments, located near the center, forgot a book in her car. At approximately 5:20 P.M. she went down to get the book and exited through a rear door. As she did she observed a black male a dozen feet from the door. While she went to her car the individual gained entry to the apartment building. After retrieving her book Ms. Carroll returned to her patient. At approximately 7:00 P.M., when her shift ended, Ms. Carroll started to leave by the third floor fire exit. As she opened the door to the stairway she stepped into a large pool of blood. Thinking a patient hemorrhaged she followed the blood trail first to the floors below and then to the fourth floor landing where she found the battered and lifeless body of Tillie Katz. The police were called.

At approximately 7:30 P.M. Pittsburgh Police Homicide Detective Tony Condemi arrived at the scene. He followed the blood trail from the second floor elevator foyer to the fourth floor where Tillie Katz lay dead. The trail yielded her broken glasses, pocket book, shopping bag and a small tote bag with identifying Medicare and credit cards. Of more significance, on the third floor, he found foot prints in the blood, a piece of jade jewelry and a round gold earring. The blood on the shoe prints would later be found to match the blood on appellant's shoes, and a fragment of a jewel stone, also found in the blood, would "fracture match" a bracelet found in appellant's girlfriend's apartment. When the police went to question the appellant at that apartment, he denied involvement and agreed to accompany them to the police station. Pursuant to written consent of his girlfriend, her apartment was searched and further evidence obtained: evidence which became part of an avalanche of guilt. ¹ Subsequently, appellant confessed in detail. He told the police that after he gained entrance through the door left open by Ms. Carroll, he saw Tillie Katz, spoke to her, and when she answered, struck her with a steel pipe he had brought concealed in his waistband. The pipe had been brought to further his quest which he described as "[l]ooking to rob someone." Appellant also told the police how he dragged Ms. Katz down the hallway to the stairwell where he then raped her and robbed her of $12.00 and her jewelry. Given this evidence, the jury had every reason to take him at his admitted word and there is no reason to doubt that they were right. Additionally, the Commonwealth presented a panoply of experts attesting to the victim's cause of death as well as the sexual assault.

Consequently, on June 22, 1989, appellant Thomas McCullum was found guilty by a jury of first degree murder, ² rape, ³ and robbery ⁴ in connection with the brutal slaying. The same jury in the penalty phase of the trial sentenced appellant to death on the murder conviction in accordance with section 9711 of the Sentencing Code. ⁵ Although the jury found mitigating circumstances, it determined that these circumstances were outweighed by the following aggravating circumstances: that appellant committed the killing while in the perpetration of a felony, ⁶ and appellant has a significant history of felony convictions involving the use or threat of violence. ⁷ After a hearing post-trial motions were denied and formal sentence was imposed by the Court of Common Pleas of Allegheny County. In addition to the death penalty on the first degree murder charge, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years on the rape charge and ten (10) to twenty (20) years on the robbery charge, with the additional sentences to run consecutively.

On November 28, 1989, appellant's trial counsel filed a Notice of Appeal in the Superior Court, which thereafter sua sponte transferred the appeal to this Court for direct review. ⁸

In cases where the capital sanction is imposed, this Court is obligated to independently examine the sufficiency of the evidence, even where the appellant has not challenged the conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh. denied, 463 U.S. 1236, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the crime(s) beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977).

Reviewing the above facts it is clear that the evidence was sufficient beyond a reasonable doubt to sustain appellant's convictions.

Appellant raises numerous issues in this direct appeal. Appellant's initial averment of error is that the trial court erred when it denied his pre-trial application for a change of venue or venire because of the extensive and alleged prejudicial pre-trial publicity surrounding the death of his victim. Specifically, he argues that the publicity so pervaded the community as to deny him a fair trial.

On June 6, 1989, a pre-trial hearing was convened on this and other pre-trial motions, at which time appellant presented to the court evidence in the form of various newspaper articles, concerning the murder and investigation, from the two Pittsburgh newspapers, as well as videotape recordings of newscasts from three local television stations. With each article appellant indicated to the court where he alleged the contents prejudiced him. In addition the trial court reviewed the videotaped newscasts surrounding the murder. The court indicated that it would take the motion under advisement and defer a final ruling until after the voir dire examination.

In Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989), this Court extensively set forth the law to be applied when we were faced with a similar claim of error. There we stated:

The standards applicable to a motion for a change of venue are well settled:

The grant or denial of change of venue is a matter within the sound discretion of the trial court, and its exercise will not be disturbed by an appellate court in the absence of an abuse of discretion.

Commonwealth v. Buehl, 510 Pa. 363, 375-76, 508 A.2d 1167, 1173 (1986), citing: Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985); Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983); Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976). Accord: Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (1980). The trial court, who is closest to the pre-trial news reports and events, is in the best position to measure community atmosphere and determine the necessity for a venue change. Commonwealth v. Buehl, supra; Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980).

'In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant's] guilt or innocence as a result of the pre-trial publicity.'

Commonwealth v. Kichline, supra, 468 Pa. at 274, 361 A.2d at 287.

Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury.... But this rule is subject to an important exception. In certain cases there 'can be pre-trial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice,' ... because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had.

Commonwealth v. Holcomb, 508 Pa. 425, 443, 498 A.2d 833, 842 (1985), citing: Commonwealth v. Romeri, supra. However, a presumption of prejudice pursuant to this exception mandates the presence of exceptional circumstances. It is difficult to accept generalizations in this area in that 'each case must turn on its special facts.' Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). Casper goes on to state: 'It is clear that the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Similarly, a possibility that prospective jurors will have formed an opinion based on news accounts will not suffice.' Id. at...