Com. v. Brown

• Decision Date: 04 April 1996
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Charles BROWN, Appellant.
• Court: Pennsylvania Supreme Court

Page 1178

676 A.2d 1178

544 Pa. 406

COMMONWEALTH of Pennsylvania, Appellee, v. Charles BROWN, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1995.

Decided April 4, 1996.

Barnaby C. Wittels, Philadelphia, for Charles Brown.

Catherine Marshall, Philadelphia, Karen A. Brancheau, Robert A. Graci, Attorney General's Office, for the Commonwealth.

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

OPINION

ZAPPALA, Justice.

This is an automatic direct appeal from the death sentence imposed upon Appellant, Charles Brown, following his conviction for first degree murder. The jury found as an aggravating circumstance that the Appellant had been convicted of another murder committed either before or at the time of the offense at issue, 42 Pa.C.S.A. § 9711(d)(11). No mitigating circumstances were found. Appellant was convicted also of possession of an instrument of crime. ¹ He was sentenced to a consecutive 2 1/2 to 5 year term of imprisonment on that charge. For the following reasons, we affirm the judgment of sentence.

On December 25, 1990, Richard Bethel celebrated the holiday with his common law wife, Gloria Morgan, and her family. Around 11:00 p.m., he decided to visit a neighborhood friend. He returned home an hour later. Bethel informed his wife that he was still on his way to the friend's house and took beverages from the refrigerator to take with him.

Bethel passed the corner of 22nd and Christian Street in Philadelphia on the way to his friend's house. Several men were standing on the corner, including Appellant who held the leash of his Rottweiler dog. As Bethel walked by, the dog snapped at him. Bethel did not stop, but angrily responded that he would have shot the owner and his dog if he had been bitten. Appellant handed the leash to another man and pursued Bethel. Appellant's friend, John Hawkins, followed them.

Appellant chased Bethel down Christian Street to 23rd Street and then to Pemberton Street where Bethel lived. Bethel stopped on Pemberton Street within a short distance of his house. Appellant fired several shots at Bethel with his .45 caliber revolver. Bethel fell to the ground and started crawling to his house. Bethel reached the front of his house and called to his wife, but Appellant shot him again. Bethel's wife had heard shouting and recognized her husband's voice. She opened the door, but shut it when the shots were fired.

Appellant ran around the corner, followed by Hawkins. No shots were fired by Hawkins. Appellant asked him whether he had heard Bethel moan. Hawkins' response was negative, but Appellant stated that Bethel was not dead yet. Appellant went back and fired more shots at Bethel. The two men then fled the scene. Police officers responded to Gloria Morgan's emergency call and transported Bethel to a hospital. Bethel died of multiple gunshot wounds within five hours.

Appellant was identified at the trial as the man who shot Bethel by John Hawkins and Barry Cheeseboro. Hawkins described the entire sequence of events culminating with Bethel's death. Cheeseboro, the victim's neighbor, testified as to the observations he made from the window of his house. Cheeseboro had looked out of his window when he heard people running down his street. He saw the Appellant shoot Bethel, whom he recognized as a neighbor although not by name. He also observed another man at the scene whom he could not identify, but stated that shots were fired only by the Appellant. Cheeseboro testified that Bethel tried to get away and that the Appellant continued to shoot at him.

In all capital cases in which the death penalty is imposed, an independent review of the sufficiency of the evidence must be conducted, even where the appellant 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 of the elements of the offense beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). Applying this standard, we find that the evidence was sufficient to support the verdict of the jury.

I. PRE-TRIAL ERRORS

Appellant asserts that the trial court erred in denying his pre-trial motion to suppress the identification made by Gloria Morgan during a photographic array shown to her prior to his arrest. He claims that the photographic array was unduly suggestive and the identification should not have been allowed since there was no other evidence of reliability of the witness' identification.

At the hearing on the suppression motion, Detective Michael Cahill testified that he contacted Gloria Morgan approximately two to three weeks after the incident to show her a photographic array that included a photograph of the Appellant. The array consisted of black and white photographs depicting front and side views of eight men. He testified that Morgan was not told that the person suspected of committing the crime was included in the array; nor was it suggested that she select any particular photograph. Morgan selected the Appellant's photograph and told the detective that she was not one hundred percent sure but that the photograph looked like the man who killed her husband. Morgan had been shown a separate photographic array, which did not include the Appellant, within three days of the incident and had failed to make an identification.

Defense counsel argued that the photographs were not sufficiently similar and requested that the identification be suppressed. The trial judge examined the photographs and stated that six of the photographs depicted men with similar dark-skinned complexions. He indicated that only one photograph was of a male whose complexion was close to the Appellant's and that the remainder had darker complexions. One person was wearing eyeglasses, but Morgan's description of the perpetrator did not include that detail. The trial judge denied the motion to suppress the identification based on his finding that the photographic array was not suggestive.

At trial, Morgan testified that she had chosen the photograph of the Appellant from the array because she had a feeling that he was the one. She was unable to identify the Appellant at trial, however. She explained that she could not make a positive identification because the perpetrator wore a cap on his head and she could not see his eye area. She testified that the perpetrator shared several physical characteristics of the Appellant, including age, height, weight, and color of complexion.

We find that the trial judge properly denied the suppression motion because the record supports his findings that the photographic array was not suggestive and consisted of photographs sufficiently similar so as not to draw her attention to any particular photograph. Defense counsel was able to vigorously cross-examine Morgan to Appellant's advantage about her inability to identify the Appellant at trial and her testimony that she was not free of any doubt when she selected his photograph from the array. Since the photographic array was not impermissibly suggestive, Morgan's testimony regarding her selection of Appellant's photograph was admissible into evidence.

Appellant next argues that the trial judge erred in ordering him to shave his beard before participating in a lineup. Appellant had requested the lineup, but withdrew his request when the trial judge imposed that condition at the request of the prosecutor. The prosecutor explained to the trial judge that the witnesses had described the perpetrator as clean shaven, that Appellant was clean shaven when arrested, and that he had begun to grow a beard before his preliminary hearing. Appellant's decision to forego the lineup was contrary to the advice of his attorney.

A defendant has no right to participate in a lineup. Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989). Thus, the grant or denial of a request for a lineup is within the trial court's discretion and the decision will not be disturbed absent an abuse of discretion. Id., 522 Pa. at 387, 562 A.2d at 289 (citation omitted). The trial judge's grant of Appellant's request conditioned upon shaving facial hair was not an abuse of discretion when the witnesses to the murder identified Appellant as the perpetrator and described him as clean shaven.

Appellant's related claim that the trial court erred in permitting the Commonwealth to introduce evidence of the change in his appearance after the arrest must also be dismissed. Evidence of change in a defendant's appearance is admissible to show consciousness of guilt. Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978). A jury may infer consciousness of guilt upon finding that a defendant intentionally altered his physical appearance for the purpose of avoiding identification. In this case, the trial court properly admitted evidence that Appellant did not have any facial hair prior to his arrest but began to grow a beard shortly thereafter.

II. TRIAL ERRORS

Appellant asserts that the trial judge erred in refusing to grant a mistrial or, alternatively, to strike the testimony of Officer William Phillips. During his assignment with the South Division Task Force, Officer Phillips routinely patrolled the area where the homicide occurred. In the year before the incident, he often saw the Appellant walking in the neighborhood. He testified that the Appellant had a light mustache most of that time, but did not have a beard.

Officer Phillips also testified that he saw the Appellant in the company of Willie Dukes, the man whom the Appellant was supposed to have handed his gun to after shooting the victim. On direct...