Com. v. Johnson

• Decision Date: 22 November 1995
• Citation: 668 A.2d 97,542 Pa. 384
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William JOHNSON, Appellant.
• Court: Pennsylvania Supreme Court

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668 A.2d 97 542 Pa. 384 COMMONWEALTH of Pennsylvania, Appellee,
v.
William JOHNSON, Appellant. Supreme Court of Pennsylvania. Argued April 27, 1995.
Decided Nov. 22, 1995.

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[542 Pa. 390] Lee Mandell, for William Johnson.

Catherine Marshall, Karen A. Brancheau, Robert A. Graci, Attorney General's Office, for Com.

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

OPINION OF THE COURT

CASTILLE, Justice.

This is a direct appeal from a sentence of death ¹ imposed by the Court of Common Pleas of Philadelphia County. Following a

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jury trial, appellant was convicted of the first degree murder ² of John McDonald and of criminal conspiracy to commit murder, ³ possession of an instrument of crime ⁴ and recklessly endangering another person. ⁵ The jury found that [542 Pa. 391] the two aggravating circumstances ⁶ outweighed the one mitigating circumstance, ⁷ and returned a sentence of death. Post-verdict motions were denied and the trial court imposed the death sentence. No additional penalty was imposed for the remaining convictions. SUFFICIENCY OF THE EVIDENCE

Appellant first argues that the evidence was insufficient to support the conviction for first degree murder because appellant did not possess the specific intent to kill the victim. Rather, appellant claims he only had the intent to injure him, but that death occurred as a result nonetheless. As in all cases in which the death penalty has been imposed, this Court is required to independently undertake a review of the sufficiency of the evidence. 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, 77 L.Ed.2d 1327 (1983). The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-34 (1986). After a review of the record, we find that the evidence is sufficient to support appellant's convictions.

Sonya Carr, the victim's fiance, testified at trial that in the early morning hours of June 10, 1991, in the 4800 block of Marion Street in Philadelphia, Pennsylvania, she was sitting on the porch of a house owned by her fiance's uncle when one of two men who were sitting on the porch with her, either [542 Pa. 392] Billy or Rocky, ⁸ "grabbed her butt." (N.T. 5/27/92, a.m. at 54). When Ms. Carr told her fiance, the victim John McDonald, about the incident, McDonald became upset and went in search of Rocky or Billy. The victim found Rocky on a neighbor's porch and began to argue with him about the porch touching incident. Lamont "Wayne" Bruce, one of appellant's co-defendants who was at the neighbor's house, told the victim and Rocky to leave his aunt's house because it was "disrespectful." The victim's uncle, seeing the argument at the neighbor's house, walked over to the neighbor's house, pulled the victim away, and walked with him a bit to calm him down.

Ms. Carr further testified that while McDonald and his uncle were walking, the police arrived on the scene to investigate. At the same time, appellant, Lamont Bruce and Robert Holmes, another co-defendant, waited inside Lamont Bruce's house across the street from the scene until the police left the area. After the police departed, appellant and Robert Holmes returned to the victim's uncle's porch where Ms. Carr was standing, and one of the men--the witness did not know which one--said that "he didn't give a fuck about his bitch, and the man was going to die tonight," (N.T. 5/27/92, a.m. at 59). He also asked Ms. Carr, "Where is your punk boyfriend now?" (N.T. 5/27/92, p.m. at 56).

Nancy Jennings McDonald, the victim's aunt, also testified regarding the incident on the porch and the ensuing argument. She

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testified that after Ms. Carr was told that the victim was going to die, one of the men pointed a gun at Ardell McDaniel, a neighbor who was standing nearby, mistakenly believing that McDaniel was the intended victim, McDonald. Co-defendant Lamont Bruce told him, however, that McDaniel was not the person they were looking for and the gun was lowered. ⁹

[542 Pa. 393] Mrs. McDonald further testified that when the uncle came back down the street toward the uncle's home, Lamont Bruce said to him, "I hope your nephew is ready." As the victim, who had been walking a short distance behind, neared where his uncle, Lamont Bruce and Robert Holmes were standing, Lamont Bruce said to appellant, "there he is." In response to that signal, the victim's aunt testified that she observed appellant run onto the sidewalk from between parked cars and shoot the victim six times in the back, including one shot to the back of the head. ¹⁰

Francis Bruce, a neighbor, also testified concerning the initial argument between the victim and co-defendant Lamont Bruce. She further testified that after the argument, Lamont Bruce made a phone call and that shortly thereafter, she saw appellant and Robert Holmes arrive and talk to Lamont Bruce. She also testified that she saw appellant point the gun at Ardell McDaniel and ask Lamont Bruce if McDaniel was the person for whom they were looking, and that, as the victim approached where appellant and his co-defendants were standing, she saw appellant shoot the victim.

Ardell McDaniel also testified that he saw appellant shoot the victim. He further testified that appellant and his two co-defendants then fled the scene in a white Chevy Blazer. McDaniel followed the vehicle for several blocks until shots were fired at him from the passenger side of the vehicle. Appellant was arrested several days later. ¹¹

Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was done with deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, [542 Pa. 394] 550, 599 A.2d 624, 626 (1991). Specific intent to kill can be inferred by the use of a deadly weapon upon a vital part of the body. Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972). The evidence the Commonwealth presented established that appellant, with malice aforethought, intentionally shot the victim six times in the back and head, causing his death. Therefore, the evidence is clearly sufficient to sustain appellant's conviction for first degree murder. We find appellant's claim challenging the sufficiency of the evidence to be meritless.

WEIGHT OF THE EVIDENCE

Appellant's second claim is that the verdict was against the weight of the evidence. The weight of the evidence is exclusively for the finder of fact who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses. Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104 (1984); Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1113 (1981). Furthermore, an appellate court is barred from substituting its judgment for that of the finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Thus, we may reverse the decision of the lower court only when the verdict is so contrary to the evidence as to shock the conscience. Commonwealth v. Walker, 540 Pa. 80, 93-95, 656 A.2d 90, 97, cert. denied, --- U.S. ----, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995), citing Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155 (1986).

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Appellant does not specify why the verdict is against the weight of the evidence other than to point out how the testimony elicited from his witnesses contradicted the testimony of the Commonwealth witnesses. The jury's decision to believe the testimony of four Commonwealth eyewitnesses that they saw appellant shoot the victim instead of the testimony of five defense witnesses who came out of their homes after hearing shots that they did not recall seeing appellant on the street does not shock the conscience. Therefore, this claim fails to provide a basis for relief.

[542 Pa. 395] BATSON CLAIM

Appellant next argues that the Commonwealth violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using its peremptory challenges to selectively exclude prospective black jurors from the final jury panel. ¹² At the outset, a review of the available record fails to reveal that the defense raised a Batson claim at any time during voir dire. See Commonwealth v. Abu-Jamal, 521 Pa. 188, 195-96, 555 A.2d 846, 849 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990) (failure to allege discriminatory use of peremptory challenges during voir dire results in waiver of Batson claim). The record also fails to reflect a finding by the trial court during voir dire that the defense established a prima facie showing that the Commonwealth was using its peremptory challenges to exclude potential black jurors, which would arguably suggest that such a challenge was made. However, for reasons which do not appear in the record, the trial court sua sponte asked the Commonwealth mid-trial to explain the reasoning behind its use of peremptory strikes.

In order to establish prima facie case on Batson claim, defendant must make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury. Commonwealth v. Simmons, 541 Pa. 211, 230-32, 662 A.2d 621, 631 (1995), citing, Commonwealth v. Spence, 534 Pa. 233, 246, 627 A.2d 1176, 1182-83 (1993). The record here only contains notes of testimony for two days of the voir dire procedure, May 21, 1992...