Com. v. Baker

Decision Date02 March 1993
Citation614 A.2d 663,531 Pa. 541
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Lee BAKER, a/k/a Herbert Baker, Jr., Appellant.
CourtPennsylvania Supreme Court

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Hugh Burns, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.




Appellant and two accomplices, Eric Joseph and Mark Mitchell, each nineteen years of age, robbed the Metro Oil Company in Philadelphia in February, 1984. On entering the company's premises, the armed actors seized two employees, Adrian Crosby and Thomas Dolan. Mark Mitchell alone was wearing a ski mask. Appellant and Joseph proceeded to a second floor room with Dolan in front of them at gunpoint in order to open a safe. The company's owner, William Gambrell, was sitting in his second-floor office where Appellant fatally shot him twice. Unable to open the safe, the actors fled with weapons found on the premises and money taken from both witnesses. While the one bullet taken from the victim's body was identified as a .38 caliber, the actual weapon used in the crime was never recovered.

Adrian Crosby failed to pick out the Appellant from a photo array but was able to identify him at the preliminary hearing and at trial. Thomas Dolan was shown two photo arrays and selected Baker on the second try. He also picked out the Appellant at trial as the killer of William Gambrell. Other witnesses, Floyd Jenkins and Calvin Budden, identified Appellant and his accomplices from photographs as the persons whom they had seen enter the Metro Fuel Company.

Appellant, who did not testify at trial, originally denied any participation in the crime, insisting that he was repairing the property of Karen Hawkins. When confronted with the conflicting inculpatory statements of witnesses, however, he admitted his presence but stated, in writing to the police, that one of his co-defendants, Eric Joseph, had fired over his shoulder and killed the victim. Following an unsuccessful effort at suppression, a redacted transcription of Baker's statement, dated March 7, 1984, was read at trial. (T.T. September 28, 1984, pp. 4.59-4.70.)

The three co-defendants were tried together before the Honorable Albert F. Sabo and a jury from September 24, 1984, to October 4, 1984, when the jury returned its verdicts of guilt. A separate sentencing hearing was held and on October 5, 1984, the sentencing jury condemned Appellant to death and Joseph and Mitchell to life imprisonment for murder in the first degree. Appellant Baker also received consecutive sentences for conspiracy, robbery, and possessing instruments of crime. 1

At the penalty hearing, the prosecution presented evidence of Appellant's juvenile adjudications which included one robbery, aggravated assault, and five burglaries. Appellant presented evidence of mitigation. 2 While on direct appeal to this Court, 3 Appellant, who was represented by new counsel, filed a pro-se petition alleging ineffectiveness of trial counsel. We remanded for an evidentiary hearing in the form of a proceeding under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541, et seq., and Judge Sabo, as indicated below, denied the petition for relief on November 18, 1987.

As in all death penalty cases, we have conducted an independent examination of the evidence to determine if it supports the verdict of guilt. 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). Our test for determining the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict winner, and thus, to determine whether the jury reasonably could have concluded that all elements of the crime were established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985).

Our review of the record, as noted herein, clearly established a sufficiency of evidence to support the verdict by the jury.

Appellant raises the following allegations of error. We find those allegations to be without merit and affirm the judgment of sentence.

I. Pre-Trial
A. Failure to Suppress Appellant's Pre-Trial Statement

Appellant argues that the inculpatory statement which he gave to the police on March 7, 1984, should have been suppressed on the grounds that its credibility was tainted by his confusion at that moment and that it was the product of coercion. A transcript of the confession was read to the trial court. In his statement, Appellant pointed to an unspecified other "guy" as the killer: "As I got past him, I was looking inside and he put the gun over my shoulder and began firing." (T.T. September 28, 1984, p. 4.66.)

Appellant bases his suppression argument, first, on allegations that there were conflicts in his story. This is a matter of credibility which was fully explored in the jury's presence on cross-examination of the officer who took the statement. (T.T. September 28, 1984, pp. 4.73-4.91, 4.93-4.94.)

Regarding the challenge to the voluntariness of the confession, Appellant later denied having signed the document but stated that the police were going to "put it all on me" unless he signed. At trial, the police officer testified that Appellant carefully read all seven pages. (T.T. September 28, 1984, p. 4.71.) There is no dispute that it is Appellant's signature on the document. (Appellant's Brief, p. 44, acknowledges that he signed it but denies that it was done voluntarily and knowingly.) On these facts, and given the refusal of the Suppression Court to silence the statement, no hard evidence appears on the record to support Appellant's allegation of error. We find neither threats, promises, physical force, nor coercion in this record. Where a defendant is informed of his rights, and he understands them and still makes a voluntary and knowing confession, the statement is admissible in a murder prosecution. Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970).

B. Suppression of the Identification Testimony of Witnesses Thomas Dolan and Adrian Crosby Thomas Dolan

Appellant advances two interwoven reasons in support of his contention that witness Dolan's in-trial court identification should not have been permitted. First, he argues that Dolan's photo identification was uncertain at best; and, second, he maintains that Dolan's ability to identify him at trial was aided immeasurably and improperly by contrived police action which lured him into the preliminary hearing room with Baker present, but without informing Baker's attorney that a line-up was underway.

Dolan was an employee of the Metro Fuel Company and was robbed by co-defendant, Mark Mitchell, during the crime taking place in the company's offices. Dolan also was taken upstairs by the assailants to the second floor office where the killing took place. Shortly afterwards, he was shown two photo arrays by the police. In the first array, Dolan selected a photo which was not Baker's. On the second display, however, he selected Baker and stated that the photograph looked like the shortest one of the three actors more so than the other pictures. Picking out Baker as the killer, Dolan then told the police, according to his testimony at the suppression hearing, that, "I said that's one that looks like him to me." (S.T., September 12, 1984, pp. 192-193).

Dolan also went to the subsequent preliminary hearing to give testimony. As the hearing was about to commence, two police officers told Dolan he could sit inside the courtroom, and there he saw Baker. As Dolan left the courtroom because he was not going to be called as a witness, a detective "asked me, the specific conversation, he asked me if I recognized anyone up there, pointing at no one." (S.T., September 12, 1984, p. 20). Dolan replied to the officer at that moment that the sight of Baker cleared his mind of any doubts regarding the prior identification of Baker. Dolan subsequently affirmed this at the suppression hearing where he was cross-examined as a prosecution witness by defense counsel for co-defendant, Mark Mitchell, and he testified as follows:

Q. You said that when you came to the preliminary hearing, you told Detective Nespoli that now it was clear?

A. Yes.

Q. What did you mean by that? You weren't sure who the person was, you were not sure of the photographs that you viewed?

A. Well, I said I had seen two separate photographs that resembled what I thought was Mr. Baker and because there was a doubt in my mind, which was at the point cleared up at the hearing.

Q. And it wasn't until the preliminary hearing that your mind was cleared?

A. It made me at ease, yes.

At suppression, Appellant unsuccessfully sought to crush all of Dolan's identification testimony. Dolan persisted, however, in his recollection that he had selected Baker's photograph because, "I was able to see the person holding the gun." "Q. He is the one who fired the shot? A. Yes he was." (S.T., September 12, 1984, pp. 192, 194). 4

As to the effects of encountering Baker at the preliminary hearing, Dolan told the police that seeing Baker had an effect on him: "it cleared up my mind." (S.T., September 12, 1984, [531 Pa. 551] p. 195). 5

At trial, Dolan once again pointed to Appellant as the killer:

Q. What did you see Mr. Baker do, if anything, as he took the half step forward?

A. I saw his hand come out with the gun that he had at my side and fire what I believe was two shots.

Q. What direction was the gun pointed when the two shots were fired?

A. It was pointed directly through the doorway where Mr. Gambrell was sitting.

Q. He was sitting at the desk; is that right?

A. Yes.

(T.T., September 25, 1984, p. 281).

Appellant now insists that the in-trial...

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