Com. v. Blystone

Decision Date17 October 1988
Citation549 A.2d 81,519 Pa. 450
CourtPennsylvania Supreme Court
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Scott Wayne BLYSTONE, Appellant.

Samuel J. Davis, John M. Purcell, Davis & Davis, Uniontown (court-appointed), for appellant.

Alphonse LePore, Jr., Dist. Atty., James J. Nesser, Ewing D. Newcomer, Uniontown, for appellee.

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

OPINION

McDERMOTT, Justice.

A jury found the appellant, Scott Wayne Blystone, guilty of murder of the first degree,1 robbery,2 criminal conspiracy to commit homicide,3 and criminal conspiracy to commit robbery.4 After further deliberation that same jury set the penalty for the murder conviction at death.5 The appellant was also sentenced to ten to twenty years imprisonment for the robbery conviction.6 He directly appeals these judgments of sentence.7

It is the practice of this Court in cases in which the death penalty has been imposed to review the sufficiency of the evidence supporting an appellant's conviction. 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). We do so with an eye to see whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). In the instant case the evidence presented to the jury, together with all reasonable inferences in favor of the Commonwealth, discloses the following.

On the night of Friday, September 9, 1983, Scott Blystone, his girlfriend and another couple were riding around Fayette County in Blystone's automobile. Blystone, who was driving, worried about the fact that his automobile was low on gasoline and he had no money with which to purchase more. At approximately midnight, Blystone observed Dalton Charles Smithburger, Jr., hitchhiking. Blystone announced to his companions: "I am going to pick this guy up and rob him, okay, ...?" His friends endorsed the idea, or at best did nothing to oppose it, so Blystone pulled over to pick up his victim. Unfortunately, Smithburger, who was not acquainted with anyone in the car, accepted the ride.

Once underway Blystone asked Smithburger if he had any money to contribute for the purpose of purchasing gasoline. Smithburger replied that he had only a few dollars and reached into his pocket. Dissatisfied with that response, Blystone drew a revolver which he held to Smithburger's head. In no uncertain terms Blystone ordered Smithburger to shut his eyes and place his hands on the dashboard. Smithburger understandably offered no resistance. Though in the course of a taped interview he would later admit that "I almost splattered him right there in the car," Blystone assured Smithburger that he would lose only his money, not his life.

Blystone pulled the car off the road at a lonely spot and walked Smithburger at gunpoint a short distance into an adjacent field. Blystone searched Smithburger, finding thirteen dollars. He ordered Smithburger to lie face down on the ground and wait. Smithburger complied. Blystone briefly returned to his companions in the car to inform them that he was going to kill Smithburger. The best that can be said for Blystone's friends is that perhaps they were startled into ambivalence by the enormity of the statement.

In any event Blystone decided to kill Smithburger. He returned to the field where he found his victim as he had left him. Blystone knelt on Smithburger's back and asked him whether he could identify the vehicle which had picked him up. Smithburger correctly replied, "all I know is it was green and the back end was wrecked." Blystone then said, "goodbye" and emptied his revolver into the back of Smithburger's head.

Such "goodbyes" are rarely the end. Such deaths take on a life of their own and rattle through the lives of the those who know, until chance or nature loosens tongues. Appellant Blystone heard more than the voice of his passengers; he heard his own voice bragging in vivid and grisly detail of the killing of that unlucky lad. (See the Appendix attached to this opinion.)

Blystone eluded detection as Smithburger's murderer for over three months. However, his associates eventually exposed him. The testimonial evidence they contributed to the Commonwealth's case, along with physical evidence, would have been sufficient to support Blystone's convictions. Additionally, an audio tape of Blystone describing the murder to an informant was presented to the jury (See Appendix). The combined effect of all this material was to present the jury with evidence of the appellant's guilt which was more than sufficient; it was overwhelming.

Nevertheless, the appellant attacks the sufficiency of the evidence supporting his robbery conviction and, consequently, the imposition of the death penalty.8 Specifically, the appellant argues, the Commonwealth did not present sufficient evidence to satisfy the corpus delicti requirement for the crime of robbery. To establish the corpus delicti of robbery, the Commonwealth must prove a theft by criminal means. Commonwealth v. Tallon, 478 Pa. 468, 475, 387 A.2d 77, 81 (1978). In other words, the Commonwealth bears a burden to show that the crime actually occurred.

The Commonwealth presented ample evidence, apart from the appellant's own admissions, that Scott Blystone did in fact rob Dalton Smithburger. Both of the young women in the car that night testified that the armed appellant took thirteen dollars from Smithburger. One of the women testified on this point as follows:

Q. [Prosecutor]: Did Scott say whether or not he took the money?

A. He didn't have no money on him before and that is how he got the gas is with that money.

Q. With that thirteen dollars?

A. With that thirteen dollars Thus the appellant's argument on this point is meritless.9

Apart from the sufficiency of the evidence supporting this robbery conviction, the appellant asserts a second theory which would render this felony harmless for the purpose of setting the penalty for his murder conviction. Blystone argues that the robbery of Smithburger was completed prior to the murder and since the killing was not committed "while in the perpetration of a felony," 42 Pa.C.S. § 9711(d)(6), he cannot be sentenced to death.10 This proposition is absurd.

The crime of robbery is clearly defined:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree;

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or

(v) physically takes or removes property from the person of another by force however slight.

(2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S. § 3701(a).

The evidence concerning the robbery and killing was uncontroverted. The appellant searched his victim at gunpoint, taking thirteen dollars; forced him to lie down; and instructed him not to move unless he wished to die. Blystone then traversed the short distance to his automobile, remaining there only long enough to announce his murderous intent and gain the endorsement of his companions. Meanwhile, Smithburger remained motionless on the ground out of fear that Blystone would fulfill his deadly promise should he resist or attempt to flee. Indeed, Blystone described in detail how he instilled doubt in Smithburger's mind as to whether his robber was merely a few feet away or fled the scene: "He never moved. He thought I was there. I stepped around him, right, and I walked a little bit in a circle and I stopped. I didn't make no noise, and I said 'don't think I am gone, mother-f-----r,' and then I f-----g tiptoed off, you know." Upon his return from the automobile Blystone killed Smithburger; only then did he flee the scene. Thus, this robbery was not complete when Blystone took Smithburger's money, nor when Blystone went to his car, but when he successfully fled the scene after murdering his victim.

Finding the evidence sufficient to support the convictions, we turn our attention to what the appellant characterizes as errors of the trial court. The appellant contends that these rulings by the court tainted his trial in such a way that he must be granted another. We address these rulings of the trial judge in chronological order.

A particularly incriminating piece of evidence in the Commonwealth's arsenal consisted of a tape recording of a conversation between the appellant and a police informant (See Appendix). On the tape Blystone is heard to recall the Smithburger robbery and homicide in lurid detail. Of course, the appellant attempted to keep this evidence from the jury by means of a pre-trial suppression motion.

After a suppression hearing the trial judge denied the appellant's motion and portions of the tape were played before the jury during trial. The court found the tape admissible because the surveillance was conducted in compliance with procedures permitted under the Wiretapping and Electronic Surveillance Control Act11 in that the informant consented to wear a "wire".12 The Act provides in pertinent part:

§ 5704. Exceptions to prohibition on interception and disclosure of communications.

It shall not be unlawful under this chapter for:

* * *

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to...

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