Com. v. Bond

Citation652 A.2d 308,539 Pa. 299
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Jesse BOND, Appellant.
Decision Date12 January 1995
CourtUnited States State Supreme Court of Pennsylvania

Robert A. Graci, Harrisburg, for Attorney General's Office.

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

OPINION OF THE COURT

CAPPY, Justice.

This case is before the Court as an automatic direct appeal from the judgment of sentence of death. 1 Following a trial before a jury, appellant was found guilty of murder in the first degree, robbery, possessing an instrument of a crime and conspiracy. 2 At the penalty phase hearing the jury was presented with evidence of three aggravating circumstances: the defendant committed the killing while in the perpetration of a felony; 3 the defendant has a significant history of felony convictions involving the use or threat of violence to the person; 4 and, the defendant has been convicted of another murder committed either before or at the time of the offense at issue. 5 In mitigation the defense presented evidence of the appellant's character; that his history of felony convictions was not "significant;" and that he was only 25 years of age at the time of the murder. 6 After deliberation, the jury found all three aggravating circumstances, no mitigating circumstances, and returned a verdict of death. For the reasons that follow we affirm the conviction for murder in the first degree and the sentence of death. 7

As appellant alleges insufficient evidence was presented to sustain his conviction for murder in the first degree we will begin our review of this case with a discussion of the evidence adduced at trial.

At approximately 6:39 p.m., on the evening of October 31, 1991 appellant and his codefendant, Aaron Wheeler, 8 entered the Stop and Go Deli at 2200 North Broad Street in Philadelphia. While the codefendant acted as a look-out, appellant pointed a gun at a store employee, Yang-Jin Kim, and ordered him to open the cash register and give appellant the money. Mr. Kim called to the store manager, Jai Ho Lee, who was behind the counter. Mr. Kim went to the register and hit the "no-sale" button in order to open the drawer. Mr. Lee closed the drawer and locked the register and then threw the key on the floor. The defendant, who was standing about four feet in front of Mr. Lee when Mr. Lee threw the key on the floor, responded by shooting Mr. Lee in the upper left side of his chest. The bullet entered the left lung and perforated the aorta, the main blood vessel to the heart, and then exited the body. Mr. Lee was pronounced dead fifteen minutes later having bled to death as a result of the gunshot. Appellant and his codefendant fled from the store after the shot was fired.

Appellant and his codefendant each confessed to their participation in the robbery and murder. Appellant asserts, however, that he did not intend to murder Mr. Lee when he fired the gun. Although appellant concedes that firing the gun at Mr. Lee is indicative of malice and the intent to cause serious bodily injury, he argues that as he only fired the gun once, the jury could not reasonably conclude that appellant possessed the requisite specific intent to kill Mr. Lee.

Appellant's argument is wholly without merit. Specific intent to kill may be inferred from the use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931 (1992). Appellant entered the store with a gun which is clearly a deadly weapon. Appellant then aimed the gun at a vital part of Mr. Lee's body and pulled the trigger. At the time appellant fired the gun he was standing four feet away from Mr. Lee. Taking all of the circumstances surrounding the shooting into consideration, the jury had sufficient evidence from which they could reasonably conclude appellant possessed the specific intent to kill Mr. Lee. Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). Appellant's claim is thus, without merit.

In addition to reviewing the sufficiency of the evidence in order to address appellant's claim regarding the element of specific intent this Court has a duty to conduct an independent review to determine if the evidence is sufficient to sustain the underlying conviction for murder in the first degree in all cases where a sentence of death has been imposed. Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994); 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). In order to prove murder of the first degree the Commonwealth must show that a human being was unlawfully killed, that the accused committed the killing, and that the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). Based upon our review of the evidence of record, as set forth above, we conclude that the Commonwealth sufficiently established that Mr. Lee died as the result of an unlawful shooting committed by appellant in an intentional, deliberate and premeditated manner.

Next, appellant argues that his confession should have been suppressed as it was involuntary and also because it was not concluded within six hours of his arrest. Appellant surrendered to authorities on November 25, 1991 at approximately 11:40 a.m. in connection with another murder which had occurred on October 21, 1991. On November 26, 1991 Mr. Kim positively identified appellant from a photo array as the person who shot Mr. Lee on October 31, 1991. On November 27, 1991 at 8:05 p.m. appellant was arrested for the murder in the instant case. The police informed appellant of his Miranda 9 rights and he gave a statement admitting his involvement in the robbery and shooting which resulted in the death of Mr. Lee. Appellant's statement to the police began at 9:55 p.m. and concluded at 12:10 a.m. on November 28, 1991.

Appellant asserts that his statement was coerced by the tactics of the officers who questioned him on the evening of November 27, 1991. Specifically, appellant avers that the officers kept him in a small enclosed room and hollered at him and threatened him with physical violence if he did not confess. The officers testimony contradicted that of appellant. The trial court did not find credible appellant's testimony that he was psychologically intimidated or threatened with physical violence by the officers who questioned him. The Court found the confession to be voluntary and the waiver of constitutional rights to have been valid and denied the motion to suppress the confession as involuntary.

A decision of the suppression court will not be reversed where the factual findings and the legal conclusions drawn therefrom are supported by the record. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993). Appellant's arguments regarding the coercion of his confession are identical to those raised in the suppression hearing. Essentially, appellant seeks a different ruling from this Court on the matter of the credibility of the witnesses. Upon review of the testimony and rulings of the suppression court we find the record clearly supports the findings of the lower court and affirm the denial of the motion to suppress. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989).

Additionally, appellant argues that his statement given on November 27th must be suppressed because it occurred 48 hours after his arrest on November 25th and thus was in violation of the six hour rule. See Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). The six hour rule requires that an arrestee be arraigned within six hours of arrest in recognition of the inherently coercive nature of prolonged custodial interrogation. Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987). Appellant claims that since he was in custody from November 25th at 11:40 a.m., the confession made between 9:55 p.m. November 27th and 12:10 a.m. November 28th clearly violates the Davenport rule. Appellant overlooks the fact that his initial arrest on the 25th was for a different crime. The arrest for the murder of Mr. Lee did not occur until November 27th. The fact that appellant was in custody for a different offense at the time he was arrested for the instant murder is not relevant to a determination of whether the six hour rule was violated when he confessed to the second murder.

The purpose of the six hour rule as established in Davenport and modified in Duncan is to insure that an arrestee is not held indefinitely in a coercive custodial atmosphere without the benefit of an arraignment which provides the arrestee with a full explanation of his constitutional rights and the nature of the charges against him. Duncan, 514 Pa. at 402-03, 525 A.2d at 1181. In the instant matter the dictates of Duncan were not violated. Appellant was arrested and arraigned on November 25th for a homicide that occurred on October 21, 1991. Appellant's subsequent arrest on November 27th for a different crime began a separate event for purposes of the legal requirements of Duncan. Thus, appellant's statement of November 27th was concluded within 4 hours and 5 minutes after his arrest on the instant charges and Duncan was not violated. Appellant's motion to suppress his confession for violation of the six hour rule was properly denied.

In his next allegation of error, the appellant alleges that the District Attorney used his preemptory challenges during the jury selection process to systematically exclude black jurors from the petit jury panel. Appellant claims that his constitutional right to a fair trial as guaranteed by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712...

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    ...to death as a result of the gunshot. Appellant and his codefendant fled from the store after the shot was fired. Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 310 (1995) (footnote omitted). Appellant was represented at trial by appointed counsel, James S. Bruno, Esquire, and co-counsel, ......
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