Com. v. Zook

• Decision Date: 17 June 1992
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert Peter ZOOK, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 1

615 A.2d 1

532 Pa. 79

COMMONWEALTH of Pennsylvania, Appellee, v. Robert Peter ZOOK, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1991.

Decided June 17, 1992.

James P. Cullen, Vincent J. Quinn, Lancaster, for appellant.

Henry S. Kenderdine, Jr., Dist. Atty., Joseph C. Madenspacher, First Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., Roseann B. Termini, Harrisburg, for appellee.

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

OPINION

McDERMOTT, Justice.

On January 3, 1990, the jury trial of Robert Peter Zook, Jr., commenced in the Court of Common Pleas of Lancaster County before the Honorable Louis J. Farina in connection with the July 24, 1985 brutal slaying of Paul Conrad and Sandra Wiker. The jury found appellant guilty of two counts of first degree murder and sentenced him to death on both counts. This was appellant's second trial on these charges. In appellant's first trial the jury returned guilty verdicts and sentenced appellant to death on both counts; however, these verdicts and concomitant sentences were reversed by this Court and appellant was awarded a new trial. ¹ Appellant's appeal from his second trial is now before us on automatic review pursuant to 42 Pa.C.S. § 9711(h)(1).

Although appellant does not challenge the sufficiency of the evidence, it is the obligation of this Court in cases where the capital sanction is imposed, to independently examine the sufficiency of the evidence supporting an appellant's conviction. 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'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all the elements necessary to sustain a conviction of first degree murder. Commonwealth v. Strong, 522 Pa. 445, 563 A.2d 479 (1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990). With these standards in mind we will review the record in this matter.

On the evening of July 23, 1985, at approximately 7:00 P.M. appellant met with a friend, Allen Ault, at the Little Dutch Cafe, a local bar in the City of Lancaster. At approximately 9:00 P.M. appellant asked another friend, Karen Hanna, to drive him to Sandy Nace's house. The friend obliged and after briefly speaking with Nace, appellant and Nace returned to the bar to meet again with Ault. An hour later appellant left the bar with Nace to visit Marcellus Barnett, at Barnett's apartment.

Marcellus Barnett testified that the late night visit centered around questions concerning a potential robbery and items that might be found in a certain apartment, such as money, guns, and electronic equipment. Barnett drew a diagram for appellant and Nace to help them familiarize themselves with the layout of the apartment. Thereafter, appellant and the others walked downtown. At this time appellant indicated that the job would not require masks since there was a good possibility that the victims would have to be killed.

Later that evening Barnett discovered from a friend that the proposed victim, Mr. Conrad, did not have a substantial amount of money or weapons at the apartment, and thus he sought to inform appellant that the job was not worth the risk. Unfortunately for the victims this information was never delivered. It was not until the next day that Barnett learned of the murders.

Barnett did not see appellant again until the next evening when he came to Barnett's apartment. Appellant told Barnett that it had been an easy job and gave details of the murders. He also told Barnett that he would be staying at a local motel under the assumed name of James Long. Barnett informed the police of appellant's crimes and his plans, and further told the police that appellant was probably armed. The police set up a surveillance of the motel. Police arrived at the motel at approximately 3:00 A.M. and were instructed not to act unless appellant appeared to be leaving the scene.

The police discovered that appellant had registered at the Parkside Motel on July 25, 1985, under the assumed name of James Long. At approximately 6:25 A.M. on the following day, appellant left his room and walked toward an outside vending machine. The police officers moved in and placed him under arrest. At the time of this arrest appellant had a knife on his belt, a handgun in his boot, and two rings and necklace later identified as belonging to Paul Conrad.

During the trial, the Commonwealth offered the testimony of James Walck, who testified that while in prison together, appellant told him in detail how the victims had been murdered. Police found the victims bound at the hands and feet with tape. Duct tape completely covered their eyes, nose and mouth. Knotted pieces of clothing were discovered in each victims' mouth. Electrical cords were wrapped tightly around their necks. The cause of death for each was strangulation coupled with multiple stab wounds. In addition, Walck testified that appellant told him that he had anally penetrated Ms. Wiker prior to her death.

Finally, Special Agent Richard Reem of the Federal Bureau of Investigations testified that human blood taken from the boots of appellant matched the blood type of one of the victims. This blood type was inconsistent with appellant's blood type. Moreover, Agent Reem testified that an enzyme analysis performed on the victim's blood established that only 1.9% of the Caucasian population is known to have this frequency of this enzyme. In this case, both the appellant and the victims were Caucasian.

Based on our review of this evidence, we are satisfied that the Commonwealth presented sufficient evidence to sustain the jury's verdicts of guilt on two counts of first degree murder. We now turn to appellant's claims of error.

PRE-TRIAL ERRORS

Appellant's first claim of error concerns the trial court's denial of his motion to quash the information lodged against him. This motion was based on the fact that his preliminary hearing was not held until twenty-seven (27) days after he was first incarcerated on these charges which he contends constituted a violation of Pa.R.Crim.P. 140(d).

Rule 140(d) of the Pennsylvania Rules of Criminal Procedure provides in pertinent part:

(d) Unless the preliminary hearing is waived by a defendant who is represented by counsel, the issuing authority shall:

(1) fix a day and hour for a preliminary hearing which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the complainant and the attorney for the Commonwealth[.]

Pa.R.Crim.P. 140(d)(1).

Appellant argues that the language of this rule is mandatory and therefore he is entitled to a dismissal of the charges, arrest of judgment and discharge. He further argues that the Commonwealth failed to show sufficient cause to justify holding the hearing outside the ten day period prescribed by the rule.

We first take note of the fact that this claim of error was raised by appellant during his first trial and addressed at that time. ² During the course of pre-trial proceedings, the trial court heard testimony from the scheduling clerk at the Consolidated District Justice's office, who testified that appellant's preliminary hearing was originally scheduled within the ten day period but later had to be rescheduled due to a full schedule at the District Justice's office. The court held that this constituted good cause for the hearing to be rescheduled and denied the request for dismissal of the charges. Without commenting on the correctness of this decision we dismiss appellant's claim of error on a more fundamental ground, to wit; that there is no relief to be afforded to appellant at this point.

The courts of this Commonwealth have previously held that the only relief available to a defendant for a violation of Rule 140(d)(1) is to be released from custody until the preliminary hearing is held. See Commonwealth v. Bernhardt, 359 Pa.Super. 413, 422, 519 A.2d 417 (1986) ("[w]here a preliminary hearing has not been held within the time required by Pa.R.Crim.P. 140(d)(1) and there has been no good cause shown for continuing the hearing beyond that time, an accused is entitled to be released from custody until the preliminary hearing has been held.")

In Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), this Court held:

[t]he time limits established in our Rules [of Criminal Procedure] do require strict compliance, and when such compliance does not exist a defect in procedure has occurred. That defect however then triggers the separate and distinct analysis as to what is the proper remedy. As we have previously indicated, when a defect occurs under Chapter 100 the remedy is explicitly provided in Rule 150.

Id. at 71-2, 532 A.2d at 10 (emphasis in original).

Rule 150 provides as follows:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 150.

As we stated in Revtai, this Rule clearly eschews the application of per se remedies for technical violations, and demands a showing of prejudice by the defendant before a dismissal of prosecution is warranted. Moreover, such prejudice must be beyond the inherent prejudice of being subjected to a criminal prosecution. Since appellant has failed to demonstrate how he was prejudiced by the delay, and since appellant's time for...