Com. v. Bricker

• Decision Date: 21 September 1990
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert BRICKER, Appellant.
• Court: Pennsylvania Supreme Court

Page 147

581 A.2d 147

525 Pa. 362

COMMONWEALTH of Pennsylvania, Appellee, v. Robert BRICKER, Appellant.

Supreme Court of Pennsylvania.

Argued March 6, 1990.

Decided Sept. 21, 1990.

[525 Pa. 364] John Elash, Pittsburgh, Pa., for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Christopher Conrad, Sandra Preuhs, Asst. Dist. Attys., Pittsburgh, Pa., for appellee.

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

OPINION OF THE COURT

CAPPY, Justice.

Robert Bricker was sentenced to death for his role in the conspiracy to murder Thomas Sacco. The sentence is reversed and the case remanded for a new trial. ¹ Our disposition of this case is necessitated by the fact that the trial court committed two errors, either of which would require reversal. The trial court improperly refused appellant's request that the jury be instructed to review Charles Kellington's testimony as coming from a corrupt and polluted source, and further erred in allowing the plea agreements of Charles Kellington and Charles Rossi to be sent out with the jury during their deliberations.

Appellant Bricker was originally charged by information filed on July 17, 1981, and the case proceeded to jury trial on November 11, 1981. The jury returned a verdict of first degree murder and appellant was sentenced to death. Upon appellant's direct appeal to this Court the judgment of sentence was reversed and the case was remanded for a new trial. Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (plurality decision).

On remand, as indicated above, a jury once again convicted appellant of first degree murder and imposed the death sentence. Post trial motions were filed and denied and the case is again before this Court on direct appeal. ²

In each case in which the death penalty is imposed, this Court is required to conduct an independent review of the sufficiency of the evidence, even where the defendant has not challenged the conviction on that ground. 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, reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986).

Appellant is guilty of murder of the first degree if he was an accomplice of another who intentionally killed Thomas Sacco.

18 Pa.C.S. § 306 provides, in pertinent part:

(a) General rule. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

(b) Conduct of another. A person is legally accountable for the conduct of another person when:

(3) he is an accomplice of such other person in the commission of the offense.

(c) Accomplice defined. A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it....

18 Pa.C.S. § 2502(a) provides that "a criminal homicide constitutes murder of the first degree when it is committed by an intentional killing."

The Commonwealth's principal evidence in this case was the testimony of one Charles Kellington, who testified pursuant to a plea agreement and as a participant in the federal witness protection program. Kellington's testimony was quite lengthy and very detailed regarding the circumstances which led to the death of Thomas Sacco, the victim herein. According to Kellington, the murder was the culmination of a conspiracy orchestrated among William "Eggy" Prosdocimo, Miles Gabler and appellant.

To set the stage for the events surrounding the actual killing, Kellington gave the jury certain background information about the relationship of Sacco and himself to the conspirators in order to establish a motive for the murder. Kellington told of his own lengthy relationship as a distributor for Eggy Prosdocimo, a man who made his living as a drug dealer, specializing in the illicit sale and distribution throughout Pittsburgh of dilaudid. Sacco, whom Kellington had known all his life, also worked for Prosdocimo as a distributor of drugs. Kellington testified that he had only met the appellant a few months before the murder. Kellington believed that appellant was also involved in distributing drugs for Prosdocimo.

The relationship between Sacco and Prosdocimo began to deteriorate over the issue of money. Sacco was in debt to Prosdocimo in excess of $4,000 for drugs Sacco was to have sold on consignment. As their business relationship soured, the personal animosity between the two men escalated. A series of events involving name-calling and threats to each other of personal violence erupted. During one of these incidents shortly before the murder, Prosdocimo offered Kellington $1,500 to "mess up" Sacco. The final act by Sacco, precipitating Prosdocimo's desire to eliminate him, was Sacco's threat to give information about Prosdocimo's drug network to a particular Pittsburgh police narcotics detective.

Two weeks before the murder, appellant introduced Kellington to the last member of the conspiracy, Miles Gabler. At appellant's request, Kellington agreed to house Gabler, who had just escaped from prison, in his apartment. According to Kellington, it was appellant who suggested to Prosdocimo the idea of using Gabler to murder Sacco.

Several days before the murder a meeting took place in Kellington's apartment. Present were Gabler, Prosdocimo, Kellington and appellant. The object of the meeting was to discuss the best method and location for killing Sacco. Alternate scenarios were devised.

At some time prior to this meeting, appellant had provided Kellington with a .357 magnum which Kellington kept at his apartment. During the discussion of how to kill Sacco, Kellington told appellant where he kept the weapon and how many bullets were presently in the gun. The murder weapon was never recovered, but the bullets that killed Sacco were the same caliber as those that Kellington stated he knew were in the gun when it was handed to Gabler.

An initial plan was reached to attempt to "hit" Sacco that evening, as they believed he would be at the Red Door night club in Pittsburgh. After appellant and Prosdocimo left the apartment, Gabler expressed doubts to Kellington about actually having to kill Sacco. Kellington advised him that if he did not want to kill Sacco, he could A few days later Thomas Sacco was fatally shot while standing on the sidewalk in front of an after hours club frequented by all the players in this particular crime network. Kellington arrived at the club, known as Butchie's, prior to the shooting. As he approached the entrance he saw appellant sitting in a car in front of the club. Appellant asked him if he would be around that evening. When Kellington responded affirmatively, appellant said, "I might need you."

just shoot him in the leg and pretend that he had tried to kill him. Kellington arrived at the Red Door later that evening and learned that this first attempt had failed.

Upon entering the club, Kellington noticed that Sacco was present. According to Kellington, appellant had lured Sacco to this location by offering to sell him drugs. While Kellington was talking on the telephone, he observed Sacco and two other men go outside. Immediately thereafter, Kellington heard what sounded like a firecracker. Kellington emerged from the club and saw Sacco lying on the ground. He bent over the body and ascertained that Sacco was still alive, but quickly went back into the club as the police approached.

As Sacco was taken from the scene in an ambulance, Kellington received a phone call at the club from appellant who asked if Sacco was dead. Learning that Sacco was not dead, appellant instructed Kellington to obtain further information and then meet him in Hazelewood at another club known as the Chasmar. Shortly thereafter, Kellington discovered that Sacco was dead and proceeded to the Chasmar lounge where he met appellant, Prosdocimo and Gabler.

The four men met alone in a back room with the gun allegedly used in the murder on the table before them. Kellington told the others that Sacco's last words were "no Bobby no," which angered appellant. ³ After discussing the murder, appellant and Prosdocimo left to dispose of the gun and Kellington took Gabler back to his apartment.

Kellington's testimony was bolstered by Charles Rossi, a federal prisoner serving time in the federal prisoner-witness protection program, who also testified pursuant to a plea agreement. Rossi testified that he had known appellant for fifteen years prior to the shooting and that over a six month period appellant told him two or three times that a man named Gabler had killed Sacco and that appellant was going to kill Gabler when it was all over. Appellant also indicated to Rossi that appellant had been paid for the killing. Appellant presented no witnesses at trial, but put on five character witnesses during the penalty phase of the case.

The evidence establishes that appellant aided others in planning and committing an intentional killing. The evidence, therefore, is sufficient to establish that appellant is guilty of first degree murder.

In his brief and argument before this court appellant has raised numerous allegations of error. As indicted above the conviction must be reversed on the basis of two reversible errors committed by the trial court. Our opinion will be limited to a discussion of the two issues upon which we...