Com. v. Bryant

Decision Date10 May 1990
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Robert P. BRYANT, Appellant.
CourtPennsylvania Supreme Court

Alonzo Burney (Court-appointed), Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Pittsburgh, for appellee.



LARSEN, Justice.

On March 31, 1987, a jury convicted appellant, Robert P. Bryant, of murder of the first degree and, in a separate sentencing hearing, the same jury sentenced appellant to death. Post trial motions were filed and denied. Appellant was formally sentenced and this direct appeal followed.

Although appellant does not allege that the evidence is insufficient to sustain the verdict against him, this Court is required in capital cases to review the sufficiency of the evidence. 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). The applicable standard of review is whether, viewing all the evidence in the light most favorable to the Commonwealth as verdict winner, a jury could find every element of the crime beyond a reasonable doubt. Commonwealth v. Strong, 522 Pa. 445, 563 A.2d 479 (1989).

Viewed in accordance with our standard, the evidence presented at trial established the following facts. In November, 1983, prison authorities at the State Correctional Institution at Pittsburgh, acting upon information provided by an inmate named Abe Chapman, found appellant, also an inmate, to be in possession of marijuana. Prison authorities placed appellant in the prison's Restrictive Housing Unit (RHU) for a period of 120 days. When appellant was released from RHU, he stated to the guard who had found the marijuana that he knew that it was Abe Chapman who had "snitched" on him and that he would "take care of it." (N.T. 3/27/87 at 200). The same guard testified that appellant, on at least three other occasions made retaliatory remarks against Chapman, stating at one point that "every dog will have his day." Id.

On the morning of May 15, 1984, appellant and another inmate, Larry Greer, entered Abe Chapman's cell as Chapman lay in his bed. Greer, who weighed between 195 and 200 pounds, held Chapman who weighed 130 pounds, while appellant used an eight-inch long homemade knife to stab Chapman in his chest, back, face and leg. Fifteen stab wounds were inflicted, several of which punctured the victim's lungs, causing severe internal hemorrhaging and resulting in Chapman's death. 1 In the frenzy of the attack, appellant also inflicted errant stab wounds upon himself and Greer. Blood which was consistent with Greer's blood type was splattered on a pair of Chapman's trousers hanging in the cell and on the sleeve of the jacket worn by appellant at the time.

Joseph Hill, an inmate housed in the same cellblock as Chapman, testified that on this same morning of May 15, 1984, Greer and appellant were running toward him as he left his cell for breakfast. Hill noticed blood dripping from Greer's arm. As appellant reached Hill's location, he thrust the knife he was carrying into Hill's hand and told Hill to get rid of it (N.T. 3/26/87 at 73). Hill placed the knife in a bag which he disposed of in a trash can on his way to breakfast. A prison guard who observed Hill placing the bag in the can testified that he thought it odd that Hill did not just toss the package in the can, but rather, "placed" it there. (N.T. 3/26/87 at 170). The bag was later retrieved when the guard was notified of Chapman's murder and remembered Hill's careful placing of the package in the trash.

Appellant and Greer, meanwhile, continued their flight. Greer fled to the shower area where prison authorities later found blood consistent with Greer's blood type on the floor. Appellant entered his cell and was seated on a stool with a handkerchief wrapped around his hand when another inmate, Joseph Ezzo, stopped to inquire whether appellant was going to his prison job that morning. According to Ezzo's testimony, appellant answered that he was not, after which, appellant volunteered that he had killed Chapman. (N.T. 3/26/87 at 113). At that point, prison authorities had been alerted to Chapman's murder and had ordered inmates back into their cells. When an officer of the prison guards passed in front of Ezzo's cell shortly thereafter, he was informed by Ezzo of appellant's statement. The officer then went to appellant's cell and requested that appellant show him his hand. A one-inch gash was observed on the palm of appellant's hand. Based upon the foregoing, we conclude that there is sufficient evidence to sustain the verdict against appellant.

Appellant's first argument is that the trial court erred in denying his pretrial motion to dismiss the criminal homicide charge against him on the ground of prior prosecutorial misconduct. Appellant had been previously tried and convicted for Chapman's murder in April, 1986. A new trial was granted, however, after a potentially prejudicial police report was sent out with other exhibits for the jury to consider during deliberations. Appellant argues that the report, which was never introduced into evidence, reached the jury as a result of prosecutorial misconduct. Appellant has also raised a separate but related issue of whether his retrial should have been barred by the constitutional guarantee against double jeopardy.

The police report in question contained a statement by an inmate that he had seen appellant and Greer in Chapman's cell on the morning of the killing. When, in the first trial, the trial judge received a note from the jury foreman inquiring whether the report should have been included with the other exhibits in the jury's possession, the trial judge instructed the jury to disregard the report. A hearing was then held in chambers to determine why the report was sent out with the jury. During that hearing, the prosecutor explained that the inmate who had given the statement to police refused to testify. The report was then placed in a file with statements of other witnesses who would not be testifying at trial. During trial, one of those other witnesses decided that he would testify, causing the prosecution to bring the file into court. The defense was notified at that time that the witness would be testifying. The minute clerk stated that when he gathered up the exhibits to be sent out with the jury, the report was among those exhibits. Although the defense moved for a mistrial, defense counsel stated that he did not feel that there had been any type of intentional action by any source to have the report go out with the jury. (N.T. 4/15/87 at 681). The trial judge found that there was no evidence of any prosecutorial misconduct and denied the motion for a mistrial. After the jury returned a verdict in favor of the Commonwealth, and after post trial motions were filed, the trial judge granted a new trial based on the possibility that the jury may have been prejudiced by the report.

Before appellant's second trial, defense counsel filed his pretrial motion for dismissal asserting that the prosecutorial misconduct involving the above-described police report incident was so outrageous that a second trial would violate appellant's right not to be held in double jeopardy. Double jeopardy, as it relates to prosecutorial misconduct, will attach only where the prosecutorial misconduct is calculated to trigger a mistrial. Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987). Here, the trial judge found that there was no such prosecutorial misconduct, and the record amply supports the court's holding. Thus, the trial court's denial of appellant's motion for dismissal based on prosecutorial misconduct and double jeopardy was correct.

Appellant's next argument is that it was error for the trial court to deny appellant's request to act as co-counsel. It is well established that a criminal defendant has a constitutional right to present his own defense at trial. Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). There is no constitutional right, however, to act as co-counsel. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). The decision as to whether a defendant may act as co-counsel is within the sound discretion of the trial court. Id. The record before us provides no basis for finding an abuse of that discretion.

Appellant also argues that the trial court erred in permitting him to represent himself since he had spent his entire adult life in prison and was incapable, per se, of an intelligent and knowing waiver of his right to counsel. The procedure to be followed when a defendant seeks to waive his right to counsel is provided in Pa.R.Crim.P. 318(c) as follows:

(c) Proceedings Before a Judge. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.

The record reveals that the trial judge in the instant case conducted an extensive colloquy. During that colloquy, appellant was repeatedly advised of the hazards of representing himself. The trial judge pointed out to appellant that he should not rely on the fact that he had been through the entire prior trial on this particular charge and thus may have gleaned something from that experience. (N.T. 3/25/87 at 53). Appellant was advised that he would be bound by the same level of knowledge as a person who is trained in the law and would be expected to abide by all the normal rules of procedure. (Id. at 62). When the trial judge asked appellant whether he felt that ...

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    ...jury returned a sentence of death on March 31, 1987.1 This Court affirmed the judgment of sentence on May 10, 1990. Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590 (1990). Mr. Burney represented appellant on that On June 3, 1996, appellant filed a pro se PCRA petition. Appellant requested......
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