Com. v. Basemore

Citation582 A.2d 861,525 Pa. 512
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. William BASEMORE, Appellant.
Decision Date16 November 1990
CourtUnited States State Supreme Court of Pennsylvania

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Jack McMahon, Asst. Dist. Atty., Harrisburg, Kathy L. Echternach, Philadelphia, Robert A. Graci, Chief Deputy Atty. Gen., Harrisburg, for appellee.

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

OPINION OF THE COURT

LARSEN, Justice.

On May 3, 1988, Appellant, William Basemore was convicted by a jury of murder of the first degree, robbery, burglary and possession of an instrument of crime. On May 4, 1988, a sentencing hearing was held pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711, and the jury unanimously sentenced Basemore to death. 1 On February 15, 1989, post-trial motions were argued by counsel and denied by the trial judge, who formally sentenced Basemore to death. 2 This direct appeal followed.

Although, Appellant does not raise the issue, pursuant to this Court's decision in 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) we are required to review all death penalty cases for the sufficiency of the evidence to sustain a conviction for murder of the first degree.

Viewing the evidence in the light most favorable to the Commonwealth, the record reveals the following facts: Two days before Christmas, on December 23, 1986, a burglary, robbery, and murder occurred at the Riverfront Dinner Theater (the Riverfront) in Philadelphia, Pennsylvania. Appellant, who had previously been employed at the Riverfront as a pantry worker but had been fired in November of 1986, entered the restaurant by removing the slats from a window in the men's room in the rear of the building. After entering the building, Appellant placed a chair under the window and used a homemade hook device to lift an acetylene tank, an oxygen tank, a cutting torch, martial arts weapons 3 and other equipment (a wrench, safety goggles and a striker which is used for lighting torches) into the building. Appellant confronted George Weiss, an elderly security guard who was working the "graveyard shift" at the Riverfront, in the reservation office where Weiss was watching television. Appellant brutally attacked and murdered the deceased who made an effort to defend himself, but proved no match for Appellant and his martial arts weapons. 4

Appellant then dragged the body into the sales office of the Riverfront where a safe was located. Appellant used a cutting torch, fueled by oxygen and acetylene, to burn a hole into the top of the safe. The content of the safe caught fire and was doused with water. Appellant took from the safe money and imitation gold coins inscribed with the name of the company that owned the restaurant (Tabas Enterprises) which were sold as gift certificates, and fled the premises. In fleeing, Appellant left behind the murder weapons, the acetylene and oxygen tanks and the aforementioned other equipment.

The deceased's body was discovered in the early morning on December 24, 1986, in the sales office. The deceased was found lying on his back with his legs spread apart, a chair resting on top of him and his clothing pushed up under his arms exposing his chest and stomach. A blood-stained knife was found entangled in the clothing. In the sales office the police also discovered the acetylene and oxygen tanks, the homemade ten-inch spear, made of a wooden pole with a martial arts throwing knife attached to one end with black electrical tape, and a martial arts throwing star attached to the other end with yellow synthetic rope. Charred currency was found near the safe along with charred boxes that had previously contained the "gold coins gift certificates". In the reservation office the police found a wrench, safety goggles, and a striker which is used for lighting welding torches. In the men's bathroom (the point of entry) a chair was discovered underneath the bathroom window. Under the chair was a mesh-type sling made from yellow synthetic rope held together with black electrical tape. In the hallway at the north end of the building the police discovered a curtain rod with a hook device taped to one end with silver duct tape.

The police initiated their investigation by tracing the serial numbers from the fuel tanks to the Woodland Oxygen Company, a retail store which sells cylinders, gasses, welding supplies and equipment. The business records and receipts at the Woodland Oxygen Company showed that Appellant purchased acetylene bottles on November 24, 1986, and an oxygen tank on December 10, 1986, which he brought back to the store on December 11, 1986, for repair. The police also traced the martial arts weapons found at the Riverfront to the Asian Martial Arts World store. Employees from both the Woodland Oxygen Company and Asian Martial Arts World stores picked Appellant out of a photo array and later identified him at trial as a customer.

A search warrant and an arrest warrant were authorized and executed at Appellant's residence. Appellant was present in the residence when the police arrived but diverted their attention by stating that he was the boyfriend of Appellant's sister and that the last time he saw Basemore (Appellant), Basemore was sleeping on the living room couch at 3:00 a.m. TT., April 27, 1988, p. 290-291. The police ascertained Appellant's identity after noticing a distinguishing scar on his left forearm and placed him under arrest. Appellant then blurted out that "he worked at the Riverfront and there's lot of shit going down there and he wanted to tell [the police] about it". TT., April 27, 1988, p. 294.

While executing the search warrant, the police found two shoe boxes hidden in Appellant's bedroom under a bureau, containing all but four of the "gold coin gift certificates" missing from the Riverfront. (The gift certificates were identified by serial number.) Located in a bureau drawer was a receipt dated December 10, 1986, from the Woodland Oxygen Company listing Appellant's name and indicating the purchase of a "set for oxygen service" and an adapter. A wallet hidden under a bed contained a twenty-five dollar ($25.00) "gold coin gift certificate" and identification cards belonging to Appellant. A footlocker in the bedroom contained ninety dollars ($90.00) in charred United States currency. In Appellant's mother's bedroom under a mattress the police found several knives wrapped in newspaper. Attached to one of the knives was yellow cord similar to the cord used on the sling device and spear found at the Riverfront. Some of the knives were wrapped with black electrical tape in a manner similar to the weapons found at the Riverfront. In the basement at Appellant's residence the police discovered numerous martial arts weapons including a homemade spear made of a wooden pole with a martial arts throwing knife attached to one end with black electrical tape, and a martial arts throwing star attached to the other end with yellow synthetic rope--a replica of the spear found at the Riverfront. The police also found blood stained overalls which were later tested and showed the presence of blood consistent with the blood type of the victim, George Weiss. (Weiss' clothing was also tested and showed the presence of blood consistent with the blood type of Appellant.)

Based upon the foregoing evidence, we find that the evidence was sufficient to support the jury's verdict of first degree murder beyond a reasonable doubt.

In this appeal Appellant raises six issues for our review. Appellant initially argues that he was denied a fair trial because the trial court refused to grant his request for a continuance to obtain new court-appointed counsel.

The decision of whether to grant a request for a change of counsel is a matter vested to the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975), Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987). Our rules of criminal procedure provide that "[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons". Pa.R.Crim.Pro. 316(c). See also, Williams, supra.

In Commonwealth v. Szuchon, 506 Pa. 228, 248, 484 A.2d 1365, 1376 (1984), quoting, Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), this Court determined that while a criminal defendant has a constitutionally guaranteed right to be represented by counsel of his own choosing that right is not "absolute ". We stated that the defendant's right to choose his own counsel "must be weighed against and may be reasonably restricted by the State's interest in the swift and efficient administration of criminal justice". Commonwealth v. Szuchon, 506 Pa. at 249, 484 A.2d at 1377, quoting Moore v. Jamieson, 451 Pa. 299, 308, 306 A.2d 283, 288 (1973).

In Szuchon, a capital case, the defendant refused court appointed counsel until one week before trial. He then refused to co-operate with court appointed counsel until several days before trial and refused to waive his right to a speedy trial in order to allow counsel additional time to prepare a defense. In resolving Szuchon's claim of ineffective assistance of counsel we stated:

Where a defendant knowingly and intelligently waives his right to counsel, or knowingly and intelligently refuses appointed counsel while insisting on privately retained counsel without taking steps to secure such private counsel, the defendant must be prepared to accept the consequences of his choice.

Id. 506 Pa. at 250, 484 A.2d at 1377. We held that under these circumstances the trial court is...

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