Com. v. Buck

• Decision Date: 07 April 1998
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Richard BUCK, Appellant.
• Court: Pennsylvania Supreme Court

Page 892

709 A.2d 892

551 Pa. 184

COMMONWEALTH of Pennsylvania, Appellee v. Richard BUCK, Appellant.

Supreme Court of Pennsylvania.

Argued May 1, 1997.

Decided April 7, 1998.

[551 Pa. 186] Bradley S. Bridge, Philadelphia, for Richard Buck.

Catherine Marshall, Hugh J. Burns, Jr., Philadelphia, for the Commonwealth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

ZAPPALA, Justice.

This appeal raises issues concerning a trial court's authority to make pre-trial determinations as to the propriety of aggravating circumstances alleged by the Commonwealth in a homicide case. We hold that, under the circumstances of this case, the trial court exceeded its authority.

Appellant, Richard Buck, was charged with murder, voluntary manslaughter, involuntary manslaughter, possessing instruments of crime, violations of the Uniform Firearms Act, and recklessly endangering another person. Appellant allegedly fired one shot on February 9, 1994, fatally wounding Larry Ombadykow. The shooting took place in the restroom of a Philadelphia bar. Timothy Weinert, a bar patron, gave a statement indicating that he was walking towards the restroom when he saw Ombadykow in front of him. When Ombadykow grabbed the restroom door handle, Weinert heard a single gunshot. Ombadykow staggered out of the bathroom, and fell onto the steps leading to the bar area. Weinert then saw Appellant in the bathroom holding a black handgun. He wrestled Appellant for the gun and several bar patrons detained Appellant until the police arrived.

A medical examiner's report established that Ombadykow died from multiple gunshot wounds caused by a single projectile. The bullet entered on the left side of the chest/abdomen area, exited on the right flank and then entered and exited Ombadykow's right arm.

On March 2, 1994, the Commonwealth filed a timely Notice of Aggravating Circumstances pursuant to Pa.R.Crim.P. 352. This rule provides as follows:

Rule 352. Notice of Aggravating Circumstances

The Commonwealth shall file a Notice of Aggravating Circumstances which the Commonwealth intends to submit at the sentencing hearing and contemporaneously provide the defendant with a copy of such Notice of Aggravating Circumstances. Notice shall be filed at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of an aggravating circumstance after arraignment or the time for filing is extended by the court for cause shown.

The Commonwealth asserted that it intended to seek the death penalty based on the following aggravating circumstances: the killing was committed while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), Appellant knowingly created a grave risk of death to another person in addition to the victim of the offense, 42 Pa.C.S. § 9711(d)(7), and Appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9).

Appellant filed a motion to quash all three aggravating circumstances on the ground that no evidence existed to support them. Specifically, he asserted that he was not charged with another felony and it could not reasonably be argued that he committed a felony at the time of the killing; that he has no prior felony convictions; and that because he fired one close range shot which hit and killed the decedent, no other person was endangered. Pursuant to Pa.R.Crim.P. 305, the trial court ordered the Commonwealth to provide a written statement of the evidence on which it was relying to support the aggravating circumstances. The Commonwealth refused, contending that it had already provided the discovery required by Rule 305 and that the trial court lacked the authority to mandate any additional pre-trial disclosure.

The trial court held a hearing on the motion to quash where the Commonwealth again challenged the court's authority and refused to make any proffer regarding evidence underlying the alleged aggravating circumstances. The court examined discovery materials previously submitted by the Commonwealth and concluded that no evidence existed to support any aggravating circumstance. Accordingly, it granted Appellant's motion and quashed all three aggravating circumstances without prejudice to the Commonwealth to file an additional or amended Rule 352 notice if it subsequently became aware of evidence of an aggravating circumstance that could not have been discovered earlier.

In its opinion in support of its decision, the trial court asserted that prior to the adoption of the notice provision of Rule 352, courts did not possess the authority to make a pre-trial determination regarding the presence or absence of aggravating circumstances; such determination was to be made solely by the jury. ¹ The court concluded, however, that post-Rule 352 cases demonstrate that, when a challenge is raised by the defendant, the trial court has the responsibility to review the legal sufficiency of the evidence offered by the Commonwealth in support of aggravating circumstances and the procedural appropriateness of the Rule 352 notice.

The Superior Court reversed and remanded for further proceedings. It held that the cases relied upon by the trial court did not involve determinations of the "sufficiency of evidence" of aggravating circumstances and therefore did not provide authority for the court to conduct such pre-trial inquiries.

Our analysis begins with an examination of Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977). In Bullock, informations were filed against a fifteen year old defendant, charging him with murder, robbery and related offenses. Prior to jury selection, the trial court sua sponte conducted a hearing to determine whether a jury could find that the offenses warranted the imposition of the death penalty. The trial court concluded that due to the youth and lack of maturity of the defendant at the time of the crime, the case should proceed non-capital. Although not referred to as such, the court essentially conducted a pre-trial evaluation of the mitigating evidence and determined that it outweighed any possible aggravating circumstances.

We reversed, ² holding that the Sentencing Code ³ did not authorize the court to make a pre-trial determination regarding whether the death penalty was appropriate in any given case. Rather, the detailed legislative mandate made such determination solely a function of the jury.

We relied on Bullock in Commonwealth v. Tomoney, 488 Pa. 324, 412 A.2d 531 (1980). Recognizing that it is the responsibility of the jury to determine whether the death penalty is appropriate, we held that the trial court is not empowered to direct the prosecutor to designate a case as capital or non-capital before trial commences.

In Commonwealth v. Scarfo, 416 Pa.Super. 329, 611 A.2d 242 (1992), alloc. denied, 535 Pa. 633, 631 A.2d 1006 (1993), the Superior Court similarly held that the trial court lacked authority to determine whether there was a potential death penalty issue in the case. Because the arraignment in Scarfo occurred prior to the effective date of Rule 352, the Superior Court specifically noted that it was considering the defendant's claims pursuant to the procedures and law employed at that time.

Two propositions arise from these cases. First, the Sentencing Code establishes that the jury must weigh the evidence in support of aggravating and mitigating circumstances; the trial court has no authority to do the same. Bullock. Second, the trial court may not interfere with the Commonwealth's pre-trial designation of a murder case as capital; the Commonwealth need not even make such a pre-trial determination. Tomoney; Scarfo.

We reaffirm the first proposition because the death penalty statute, although amended subsequent to our holding in Bullock, continues to provide that the jury shall act as the factfinder, weigh evidence of aggravating and mitigating circumstances and determine the appropriate sentence in a capital case. ⁴ It is obvious, however, that since the Commonwealth is now required to file a notice of aggravating circumstances alleged, it must disclose at the time of arraignment whether it will seek the death penalty.

We recognize that the prosecutor possesses the initial discretion regarding whether to seek the death penalty in a murder prosecution. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986). That discretion, however, is not unfettered. Id.

In Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), alloc. denied, 530 Pa. 651, 608 A.2d 27 (1992), the Superior Court held that the trial court had no authority to examine the methods employed by the prosecutor in making the determination of whether to proceed with a murder prosecution as a capital case. ⁵ The court further held that absent a threshold showing of a valid claim of purposeful abuse, a trial court's pre-trial determination regarding proposed aggravating factors violated the constitutional principle of separation of powers. Thus, the court implicitly recognized that in limited circumstances the prosecutor's designation of a case as capital could be challenged.

We find that a valid claim for purposeful abuse exists when the Commonwealth files an unwarranted notice of aggravating circumstances. Implicit in the notice requirement is the presumption that the allegations contained therein are based upon verifiable facts. It is well-established that the Commonwealth has no pre-trial burden of proving an aggravating factor. However, the trial court must be able to ensure that the Commonwealth is not seeking the death penalty for an improper reason. The nature of the court's inquiry is focused solely upon whether the case is properly designated as capital, not whether each aggravating factor alleged is supported by evidence. We note that, pursuant to 42 Pa.C.S. § 9711(c)(1)(i), the trial court is required to instruct the jury...