633 A.2d 1119 (Pa. 1993), Commonwealth v. Moore

Citation:633 A.2d 1119, 534 Pa. 527
Opinion Judge:Author: Cappy
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Tyrone MOORE, Appellant.
Case Date:November 09, 1993
Court:Supreme Court of Pennsylvania

Page 1119

633 A.2d 1119 (Pa. 1993)

534 Pa. 527

COMMONWEALTH of Pennsylvania, Appellee,


Tyrone MOORE, Appellant.

Supreme Court of Pennsylvania.

November 9, 1993

Argued Oct. 19, 1992.

Reargument Denied Feb. 23, 1994.

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[534 Pa. 534] Joseph Matthias Cosgrove, Forty Fort, M. John Haley, Kingston, for appellant.

Peter Paul Olszewski, Jr., Dist. Atty., David E. Schwager, Wilkes Barre, Robert A. Graci, Chief Deputy Atty. Gen., Harrisburg, for appellee.



CAPPY, Justice.

We have before us an automatic direct appeal 1 from the judgment of sentence of death imposed upon appellant, Tyrone Moore, by the Court of Common Pleas of Luzerne County, following his conviction of murder of the first degree. 2 We affirm the judgment of sentence of death.

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[534 Pa. 535] A jury found appellant guilty of murder of the first degree, 3 criminal conspiracy, 4 two counts of robbery, 5 theft by unlawful taking or disposition, 6 and recklessly endangering another person. 7 A separate penalty hearing was held regarding the murder conviction. The jury found two aggravating circumstances, 8 and no mitigating circumstances, and fixed appellant's penalty at death. Appellant's post-trial motions, as well as an interlocutory appeal raising the issue of double jeopardy were subsequently denied.

Thereafter, appellant was formally sentenced to: death on the criminal homicide count; 9 ten to twenty years imprisonment on the criminal conspiracy count, consecutive to the sentence of death; and ten to twenty years imprisonment on the second robbery count, concurrent with the sentence for criminal conspiracy. The trial court suspended sentences on the first count of robbery and the count of recklessly endangering another person, and did not sentence on the charge of theft by unlawful taking or disposition because it merged with the second count of robbery.

As in all cases where the death penalty has been imposed this Court must conduct an independent review of the sufficiency of the evidence without regard to whether the appellant has challenged the conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, [534 Pa. 536] 77 L.Ed.2d 1327 (1983), reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). The test for establishing sufficiency is 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 offense(s) beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). The following facts established by the evidence produced by the Commonwealth clearly satisfy this test.

On October 1, 1982, at approximately 8:00 p.m., Nicholas Romanchick and his spouse, Karen Ann Marie Romanchick, arrived at the Forty-Fort Animal Hospital located in the Borough of Wyoming, Luzerne County, Pennsylvania. The Romanchicks were greeted by Dr. Joseph Lopotofsky, who directed them to an examination room and commenced an examination of their cat. Dr. Lopotofsky's examination was interrupted when appellant and Ricardo Scott entered the entrance area of the animal hospital claiming that they had hit a dog with their vehicle. 10 Dr. Lopotofsky directed them to bring the dog in, and returned to his examination of the Romanchicks' cat.

Appellant then entered the examination room holding a gun and ordered Dr. Lopotofsky and the Romanchicks to lie on the floor, while Scott, who was also brandishing a firearm, brought Dr. Lopotofsky's assistant, Barbara Nowakowski, to the examination room and forced her to the floor with the others. Scott then began tying up the victims with adhesive tape under the watchful eye of appellant. After Scott had completed taping Dr. Lopotofsky and while he was taping Ms. Nowakowski, Nicholas Romanchick was shot once in the back. Appellant and Scott immediately fled the animal hospital with Mrs. Romanchick's purse.

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Shortly thereafter, appellant, Scott and a third man, Anthony Jones, arrived at the residence of Kenneth McGoy in Wilkes Barre, Pennsylvania, and upon departing, they left [534 Pa. 537] behind numerous items from Mrs. Romanchick's purse. These items were subsequently disposed of in a storm drain by Mr. McGoy and later recovered by the authorities with the help of Mr. McGoy's girlfriend/roommate.

As a result of the gunshot wound to his back, Nicholas Romanchick suffered extreme trauma to his pulmonary artery and superior pulmonary vein, coma, and death thirteen days later, resulting from brain damage caused by lack of oxygen.

The Commonwealth presented the testimony of Dr. Lopotofsky, Ms. Nowakowski, Mrs. Romanchick, and Mr. Scott, who testified similarly concerning the manner in which the events had transpired that evening. While none of these witnesses actually saw appellant shoot Nicholas Romanchick, the jury could have reasonably inferred from their testimony that appellant shot Nicholas Romanchick, especially considering the testimony of Mr. Scott who stated that he had given his gun to appellant when he began taping Dr. Lopotofsky.

In defense, by way of alibi, appellant offered only his testimony concerning his activities in Philadelphia on October 1, 1982, together with the testimony of Mr. McGoy, who stated that appellant was not one of the three men who visited his residence on that night. However, the jury was free to disbelieve this evidence, given the positive in-court identification of appellant by Mrs. Romanchick, Scott and Mr. McGoy's girlfriend/roommate, together with the testimony of Robert Brunson who stated that he had seen appellant in the presence of Jones and McGoy on the night of October 1, 1982. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989).

Based on this evidence, together with that provided by the testimony of the investigating police officers, treating physician, and medical examiner, we conclude that the Commonwealth presented sufficient evidence to sustain appellant's convictions. 11

[534 Pa. 538] Pre-trial and Trial Error

Appellant claims that the trial court erred in denying trial counsels' request to withdraw and appellant's pro se motion for removal of trial counsel, which were filed prior to the commencement of appellant's

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second trial. 12 Appellant alleges that "irreconcilable differences" existed between himself and his appointed counsel concerning the alibi defense and obtaining witnesses. Although appellant does not specifically enlighten us concerning these alleged irreconcilable differences, he relies upon Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976), and Commonwealth v. Nicolella, 307 Pa.Super. 96, 452 A.2d 1055 (1982), which held it an abuse of [534 Pa. 539] discretion to deny a request for change of counsel where there was no evidence that the request was arbitrary or for the sole purpose of delaying trial, even if it was made on the morning of trial.

Whether a petition for change of court-appointed counsel should be granted is within the sound discretion of the trial court. Commonwealth v. Williams, 514 Pa. 62, 68, 522 A.2d 1058, 1061 (1987). Moreover, although the right to counsel is absolute, there is no absolute right to a particular counsel, Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968), and appointed counsel shall not be removed except for substantial reasons. Pa.R.Crim.P. 316(c).

The trial court determined that whatever merit there may have been in the position of counsel in seeking removal, there was reason for it to believe that, by waiting until some two weeks before trial to present his pro se motion, appellant was simply trying to insure a delay in trial. Furthermore, the trial court, while mindful of the constitutional rights guaranteed to appellant, observed that counsel had provided skilled and dedicated representation throughout the prior trial and the proceedings leading up to the present trial. It determined that appellant's contention of ineffective representation by counsel totally lacked substance, and concluded that in view of the fact that present counsel had already tried this case from beginning to end, appellant's own interest could be best served by continued representation by such counsel in view of their extensive familiarity with all of the various issues presented at trial.

Given this, we conclude that under the particular circumstances of this case, the trial court did not abuse its discretion in refusing to remove appointed counsel. Appellant's reliance on Nicolella is misplaced as it involved a defendant that had not spoken with counsel since the preliminary hearing. His reliance on Tyler, while more appropriate, does not alter our conclusion, as it involved a defendant forced to trial without representation, and there was no evidence that his request for the appointment of counsel was arbitrarily made or made for [534 Pa. 540] the sole purpose of delaying trial. Moreover, as appellant clearly received zealous representation throughout the proceedings, and has failed to allege facts to reasonably support this claim, we find no reasonable basis upon which to remand this matter for an evidentiary hearing.

Next, appellant claims that the trial court erred in denying his motion to suppress pre-trial photographic identification by Mrs. Romanchick, resulting in a fatal taint upon his trial.

We recognize that in response to this challenge, the Commonwealth bears the burden of establishing that any identification testimony to be...

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