648 A.2d 315 (Pa. 1994), Commonwealth v. Thompson

Citation:648 A.2d 315, 538 Pa. 297
Opinion Judge:The opinion of the court was delivered by: Flaherty
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Louis THOMPSON, Appellant.
Attorney:For Appellant: David Rudenstein, Esquire, For: L. Thompson, Philadelphia.
Case Date:October 06, 1994
Court:Supreme Court of Pennsylvania
 
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648 A.2d 315 (Pa. 1994)

538 Pa. 297

COMMONWEALTH of Pennsylvania, Appellee,

v.

Louis THOMPSON, Appellant.

Supreme Court of Pennsylvania.

October 6, 1994

Argued April 6, 1994.

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[538 Pa. 303] David Rudenstein, Philadelphia, for L. Thompson.

Catherine Marshall, Norman Gross, Philadelphia, for Com.

Robert A. Graci, Harrisburg, for Atty. Gen.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

Thompson was tried before a jury in the Court of Common Pleas of Philadelphia--Criminal Division, and was convicted of murder of the first degree, robbery, criminal conspiracy, and possession of an instrument of crime. The convictions arose from Thompson's shooting of Bill Moye outside a crack house in Philadelphia because Moye owed him money. At the penalty phase of the trial, the jury unanimously determined that the Commonwealth established aggravating circumstance (d)(6) (a killing committed while in the perpetration of a felony), 1 and some of the jurors found that Thompson established mitigating circumstance (e)(8) (mitigating evidence concerning defendant's character, record, and the circumstances of the crime). 2 They unanimously found that the aggravating circumstance outweighed the mitigating circumstance and sentenced the defendant to death.

Trial counsel filed post-trial motions and then was permitted to withdraw. Present counsel was appointed and filed additional post-verdict motions, including claims that trial counsel was ineffective. Trial counsel testified at an evidentiary hearing, explaining the reasons for his conduct, and the court denied post-verdict motions. The court also formally imposed the sentence of death for the murder conviction and imposed concurrent sentences for the other convictions.

[538 Pa. 304] Thompson appealed to this court as of right pursuant to 42 Pa.C.S.A. § 722(4) (automatic review of death sentences).

Pursuant to Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982) and pursuant to Thompson's claim that the evidence is insufficient to support a conviction, we are required to review the sufficiency of the evidence. Testimony established that shortly before the murder, Thompson, carrying a revolver, entered the house at 3849 North Broad Street along with his co-conspirator, and asked whether the victim was present. Persons who were in the house told him that the victim was not present, but Thompson, still holding the revolver, searched the house anyway. Thompson and his co-conspirator then left the house, and shortly after they left, Thompson was heard arguing loudly with the victim and demanding the payment of money. In response to the victim's plea for more time, Thompson stated: "I gave you time." The victim said, "No, man. No. Don't do it. Don't do it." Then a shot was heard, following which a group of people who had been in the crack house came out of the house and saw Thompson, still holding the revolver, and his co-conspirator standing next to the prone body of the victim. The victim was not yet dead, and Thompson was still arguing with him about payment of the debt.

As witnesses attempted to dissuade Thompson from further violence, Thompson replied that the victim owed him "fucking money." The co-conspirator then ripped the pockets from the victim's pants, kicked him in the head, and the two assailants left in Thompson's car. One of the witnesses, Ms. Mouzon, testified that her boyfriend, Hank,

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was cradling the victim's head, and said that "he" did not have to shoot the victim; that "he" was going to get his money. Another witness, Roberson, identified the shooter as Thompson. A third witness, deceased at the time of trial, stated at the preliminary hearing that the victim, as he lay dying, identified Thompson as the person who shot him. Thompson admitted to police that he was at the crime scene and that he got into an argument and scuffle with the victim because of a debt.

[538 Pa. 305] Thompson acknowledges that the Commonwealth is entitled to all reasonable inferences as the verdict winner, Commonwealth v. McCullum, 529 Pa. 117, 123, 602 A.2d 313 (1992), but argues that the trial court's statement of the evidence amounts to distortion. The lower court stated:

Defendant fired a bullet into the victim's chest which passed through the lung, heart, inferior vena cava, the diaphragm and liver. The jury appropriately concluded that the defendant used a deadly weapon on a vital part of the body with the intent to kill.

Thompson's claim is that intent to kill cannot be inferred from Thompson's act because it is "unreasonable to believe that defendant Thompson knew that he was firing through the inferior vena cava of the victim." Instead, Thompson asserts that the evidence supports only a third degree murder conviction.

Thompson acknowledges that an intent to kill may be inferred from the use of a deadly weapon against the vital part of the victim's body, but argues that since the inference is permissive only, it should not have been drawn. Having conceded this much, Thompson's claim must fail because if the jury may conclude that the inference of intent may be drawn, and it in fact drew that inference, it did no more than it was permitted to do.

Thompson also argues that the evidence is insufficient to establish guilt of robbery because he did not take anything personally from the victim and because he had begun to walk away from the victim when his co-actor began to rip the pockets out of the victim's pants.

A person is guilty of robbery if he causes or threatens to cause serious bodily injury during an attempt to commit a theft. 18 Pa.C.S. § 3701(a)(1), (2). 3 The robbery is complete[538 Pa. 306] upon commission or threat of violence, and does not depend upon the occurrence of a completed theft. The robbery was complete when Thompson shot the victim in the course of attempting to take money from him, regardless of subsequent conduct of the co-actor and regardless of whether any property was actually taken. The evidence is that Thompson searched for the victim in order to collect money, found the victim, demanded his money, and then shot the victim in an attempt rob the him as a means of collecting the alleged debt.

Additionally, Thompson is guilty of robbery because he acted in conspiracy with his co-actor to use violence to collect the alleged debt. The two criminals stalked the victim together, confronted him together, and attacked him together and separately. Thompson is responsible for the acts of the co-conspirator in furtherance of the conspiracy, Commonwealth v. Jackson, 506 Pa. 469, 474-75, 485 A.2d 1102 (1984), and it is plain that the co-conspirator was continuing to carry out the plan to collect the alleged debt by force when he ripped the pockets from the victim's pants. In either event, there is sufficient evidence to convict Thompson of robbery.

Thompson's next claim is that the trial court erred when it gave a binding instruction during the penalty phase of the trial as to the presence of an aggravating factor, and that trial counsel was ineffective in failing to

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object to the instruction. The judge instructed as follows:

The felony in question is robbery. You have already found by your verdict that the defendant killed Mr. Moye, that the defendant did so while attempting or committing a robbery, that the defendant was acting with malice and that the intent to commit the felony of robbery existed before the killing. Perpetration means to bring about or to carry out a crime, therefore, the Commonwealth must prove beyond a reasonable doubt that the killing took place while the crime of--was being...

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