Com. v. Birdsong

• Citation: 650 A.2d 26,538 Pa. 587
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ralph BIRDSONG, Appellant.
• Decision Date: 09 November 1994
• Court: United States State Supreme Court of Pennsylvania

Page 26

650 A.2d 26

538 Pa. 587

COMMONWEALTH of Pennsylvania, Appellee, v. Ralph BIRDSONG, Appellant.

Supreme Court of Pennsylvania.

Argued April 7, 1992.

Decided Nov. 9, 1994.

[538 Pa. 590] Marlene S. Cooperman, Philadelphia, for appellant.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Div., Kathy L. Echternach, Philadelphia, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

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

OPINION

NIX, Chief Justice.

Appellant, Ralph Birdsong, was convicted of two counts of first degree murder, ¹ possession of an instrument of crime, ² six counts of aggravated assault, ³ involuntary deviate sexual intercourse, ⁴ rape, ⁵ and criminal conspiracy ⁶ on October 27, 1989, following a consolidated bench trial ⁷ before the Honorable Juanita Kidd Stout. A separate penalty hearing was held, and the trial court found two aggravating circumstances: that Appellant "ha[d] a significant history of felony convictions involving the use or threat of violence to the person," 42 Pa.C.S. § 9711(d)(9); and that Appellant "ha[d] been convicted of another murder, committed ... at the time of the offense at issue," 42 Pa.C.S. § 9711(d)(11). No mitigating circumstances were found, and pursuant to 42 Pa.C.S. § 9711(b), the trial judge sentenced Appellant to death for the first degree murder conviction. In addition, the trial judge sentenced Appellant to a consecutive term of fifty-two and one-half (52 1/2) to one hundred five (105) years of imprisonment for the other convictions stemming from the incident which occurred on July 17, 1988. Thereafter, the trial court heard and denied Appellant's post-trial motions.

I. SUFFICIENCY OF THE EVIDENCE

Appellant does not challenge the sufficiency of the evidence; however, we have independently reviewed the record to determine the sufficiency of the evidence supporting Appellant's conviction consistent with our obligation in a case in which the death penalty has been imposed. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 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 test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 303, 489 A.2d 1340, 1342 (1985).

On July 17, 1988, Appellant and his brother, Anthony Birdsong, went to a residence located at 5723 North 17th Street. Appellant entered the residence while Anthony remained outside. The Commonwealth presented the testimony of several eyewitnesses who saw Appellant commit the crimes on the day in question.

Gregory Johnson, who lived at 5723 North 17th Street, testified that he was seated at the dining room table ingesting crack cocaine in the early morning hours of July 17, 1988. Hassan Holmes and Kim Glenn were also present. The doorbell rang, and Holmes arose and observed through a window that Appellant, also known as "Hakeem," was at the front door. At that point, Johnson arose from the table to admit Appellant, whom he had known for ten years. Appellant then entered the house, walked by Johnson, turned around, and shot Johnson in the back of the head with a shotgun. Although the impact of the shotgun blast caused Johnson to fall to the floor, he was nevertheless able to get up and run out of the house.

Hassan Holmes corroborated the testimony of Johnson by identifying Appellant as the person who rang the doorbell on July 17, 1988. Holmes assumed that Appellant wished to purchase drugs from Johnson, who was a dealer. After seeing Johnson shot, Holmes attempted to flee to the basement, but Appellant intercepted him and shot him in the shoulder. Holmes then heard James Bagwell, who was sleeping on the living room couch, get off the couch and attempt to flee to the basement. However, Appellant intercepted Bagwell and fatally wounded him as he ran down the stairs. Shortly thereafter, Holmes managed to flee from the house.

Additionally, Andre Kinard testified that he saw Appellant shoot Bagwell in the head as Bagwell was running down the basement stairs attempting to flee. Kinard then tried to flee, but Appellant shot him as well.

Kim Glenn also testified that Appellant, whom she had known for one and one-half years, rang the doorbell that morning. Glenn was able to identify Appellant because she had sold drugs for him in the past. Glenn hid under the dining room table as Appellant proceeded to shoot Johnson, Holmes, and Bagwell. When Appellant went upstairs, Glenn hid under a mattress in the front of the house. From there she heard a second man enter the house and warn Appellant about the police. ⁸

The Commonwealth presented the testimony of Monroe Clark, who testified that he was in the second floor bedroom with Gloria Pannell when Appellant kicked in the bedroom door. Appellant fired shots, but missed Clark. Appellant's shots hit Pannell. After leaving the room for a brief instant, Appellant reentered the room and fatally shot Pannell while standing over her as Clark hid in the bedroom closet.

Fifteen-year old Quinzell Pannell testified that he, his brother Albert, and his sister Yiana were in another bedroom when Appellant entered and struck them repeatedly with the butt of his gun. ⁹ After beating the children, Appellant then directed them into another bedroom. On the way, Appellant struck Quinzell in the back of the head causing Quinzell to fall to the floor. Next, Appellant took Albert out of the room and shot him. Appellant then returned, stated "I am going to rape you, bitch," and took Yiana out of the room. (N.T. 10/24/89, 284-85).

Yiana corroborated the testimony of Quinzell. She also testified that Appellant forced her out of the house and across the street to a park where he proceeded to rape and sodomize her. By stipulation, the results of the rape kit taken at the hospital were admitted, showing the presence of sperm in Yiana's vagina and rectum. (N.T. 10/25/89, 399).

Albert Jones testified that Appellant, whom he had known for sixteen years, showed up at Jones' apartment in the early morning hours of July 17, 1988, with blood on his hands and the back of his legs. Appellant then requested a ride to pick up his car and Jones assented. When the two arrived at the driveway where Appellant's truck was located, they were stopped by Detective Thomas Augustine.

Detective Augustine testified that when he stopped Jones, the passenger in Jones' car, who was later identified as Appellant, looked very nervous. Detective Augustine noticed a jacket under the passenger seat, picked it up, and felt a magazine from a gun. When Detective Augustine asked whose jacket it was, Appellant admitted it was his, but fled the scene when Detective Augustine indicated that he would like the two men to come with him. Through continued questioning of the driver, Detective Augustine adduced that the passenger was Appellant. Additionally, upon further investigation, the detective discerned that the jacket contained an empty magazine from a .45 caliber handgun.

Appellant disappeared from Philadelphia and was subsequently arrested in Fort Lauderdale Florida, on November 14, 1988. ¹⁰

The parties stipulated that the jacket recovered from Jones' automobile was stained with human blood. It was further stipulated that Gloria Pannell and James Bagwell died of multiple gunshot wounds. Finally, it was stipulated that Albert Pannell suffered a gunshot wound to the back of the head which rendered him permanently disabled and confined to a wheelchair.

Clearly, the evidence introduced at trial, viewed in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, was sufficient for the trier of fact to reasonably have determined all elements of the crime beyond a reasonable doubt.

II. ALLEGATIONS OF TRIAL ERROR

Appellant raises four allegations of trial error; two relate to a claim of ineffectiveness of trial counsel, and two relate to a claim of abuse of discretion by the trial court. The issue of trial counsel's effectiveness may be raised in this direct appeal because Appellant is represented by different counsel. Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978).

In order to prevail on a claim of ineffectiveness of counsel, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) that counsel's actions were prejudicial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant asserts that trial counsel was ineffective for failing to move for a change of venue because of the extensive coverage his case received in the Philadelphia newspapers. Appellant contends that, as a result of this coverage, he was forced to waive his constitutional right to trial by jury and instead was forced to accept a bench trial.

In order to buttress his argument that he would have opted for a jury trial if trial counsel would have successfully sought a change of venue, Appellant cites to the following portion of the jury waiver colloquy, in which Appellant and co-defendant Anthony Birdsong, were being questioned to determine whether they were waiving their right to a jury trial:

MR. McMAHON [assistant district attorney]: Has anyone, with respect to this hearing, promised you, coerced you or made suggestions of a promise as to giving up your right to have 12 people make that decision?

ANTHONY BIRDSONG: The whole thing is the media exploited us in the paper, and I don't think we can get a fair trial by, you say, our peers. I don't think w...