Com. v. Busanet

• Decision Date: 19 December 2002
• Citation: 817 A.2d 1060,572 Pa. 535
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jose BUSANET, Appellant.
• Court: Pennsylvania Supreme Court

817 A.2d 1060

572 Pa. 535

COMMONWEALTH of Pennsylvania, Appellee, v. Jose BUSANET, Appellant.

Supreme Court of Pennsylvania.

Argued December 6, 2000.

Decided December 19, 2002.

Reargument Denied March 20, 2003.

Luis Felipe Restrepo, Lawrence Samuel Krasner, Philadelphia, Jose Busanet.

John P. Ellington, Iva C. Dougherty, Norristown, for Commonwealth of PA.

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

OPINION

Justice CASTILLE.

On February 19, 1999, following a three-day capital jury trial, appellant was convicted of first-degree murder,¹ aggravated assault causing serious bodily injury,² aggravated assault with a deadly weapon,³ two counts of reckless endangerment,⁴ and possessing an instrument of crime.⁵ In addition, appellant was convicted of conspiracy to commit first-degree murder, conspiracy to commit aggravated assault, and conspiracy to commit reckless endangerment.⁶ At the penalty phase, the jury found one aggravating circumstance and no mitigating circumstances; accordingly, it returned a sentence of death.⁷ Trial counsel subsequently withdrew from the case and present counsel entered their appearance and filed post-verdict motions on appellant's behalf in which they claimed, inter alia, that trial counsel had been ineffective. Following an evidentiary hearing, the post-verdict motions were denied on December 22, 1999. This direct appeal followed. For the reasons set forth below, the judgment of sentence is affirmed.

I. Sufficiency of the Evidence

In all cases where the death penalty has been imposed, this Court conducts a review of the sufficiency of the evidence underlying the first-degree murder conviction. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (Pa. 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).⁸ In reviewing the sufficiency of the evidence, we must determine whether the evidence and all reasonable inferences derived therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the jury's finding of all of the elements of the offense beyond a reasonable doubt. See Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217, 1218 (Pa.1986). Evidence is sufficient to sustain a conviction for first-degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the person accused was responsible for the killing; and that the killing was done with premeditation or deliberation. See 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (Pa.1991). "A specific intent to kill may be proven by circumstantial evidence; it may be inferred by the use of a deadly weapon upon a vital part of the victim's body." Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1283 (Pa.2000) (citing Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (Pa.1995)). Each member of a conspiracy to commit murder may be convicted of first degree murder, regardless of which of the conspirators inflicted the fatal wound, where the elements of first degree murder are made out as to that conspirator. Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491, 500 (Pa.1995); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163, 168 (Pa.1973).

Here, Wilson Melendez testified that, in the spring of 1997, he began selling crack cocaine for appellant who was a drug dealer in Reading, Pennsylvania. Melendez also shared an apartment with appellant. Sometime in May of 1997, Melendez was present when another individual who sold drugs for appellant named "Celo" informed appellant that Jason Bolton had stolen his chain and money. After Celo related this information to appellant, appellant went to confront Bolton. When appellant returned, he told Melendez that he was going to kill Bolton. Sometime later, appellant again told Melendez that he was going to kill Bolton because he was tired of Bolton "messin' with his peoples."

Melendez testified that, one night in late May of 1997, appellant left the apartment armed with a handgun and wearing a bulletproof vest. When he returned, appellant informed Melendez that he had just gone to Bolton's house with a friend and that he had "shot the house up."

Melendez further testified that, on June 11, 1997, he was walking to a laundromat when appellant called to him from the second floor window of LaDonna Johnson's house. Melendez knocked on the door of the house and was admitted by Richard Boxley. At appellant's request, Melendez and Boxley left the house to purchase two bags of marijuana and two Phillies Blunt cigars. While Melendez and Boxley were attempting to buy marijuana, they saw Bolton and Tyrone Bryant walking down the street. When Melendez informed Boxley that one of the men was Bolton, Boxley ran to get appellant.

A short time later, Melendez encountered appellant and Boxley and informed them which way Bolton had gone. Melendez, Boxley and appellant then followed Bolton and Bryant for several blocks, during which time appellant stated that he was going to kill Bolton in broad daylight. After Bolton and Bryant had rounded the corner onto Sixth Street, appellant asked Melendez to look around the corner to see where Bolton was.

When Melendez looked around the corner, he saw Bryant speaking to someone on the second floor of a house. He also saw three people across the street at a church, four children playing outside and a woman sitting on a porch. Melendez testified that appellant told Boxley to approach Bolton first because Bolton would not recognize him. As Boxley was walking toward Bolton, his gun went off in his back pocket. Bolton looked at Boxley and stepped onto the porch. Boxley then began running toward Bolton and firing his gun. Appellant fired two shots at Bolton as well. Boxley chased Bolton up onto the porch and fired shots at him through the door of the building. Bolton was fatally wounded.

Melendez testified that, following the shooting, the three men returned to Johnson's house where appellant asked Boxley, Are you sure you got him? Thereafter, at appellant's instruction, Melendez hid the firearms used by appellant and Boxley at his mother's house. These firearms, a 9 millimeter Ruger and a Sturm Ruger double action revolver, were subsequently recovered by the police and were introduced into evidence at appellant's trial.

Tamika Johnson also testified at appellant's trial. She related that she was present at LaDonna Johnson's house on the morning of June 11, 1997, and that she overheard appellant tell Boxley that Bolton had forty-eight hours to live because Bolton had held up one of his boys. Later that day, while she was at a neighbor's house, Johnson heard sirens and saw appellant, Melendez and Boxley running on Chestnut Street away from the direction of Sixth Street, the scene of the shooting. When she returned to LaDonna Johnson's house, Tamika Johnson saw appellant, Melendez and Boxley celebrating and yelling, Yeah, we got that nigger. Tamika Johnson testified that appellant instructed her to go to the crime scene and determine whether Boxley was dead. She did so, and, when she returned to LaDonna Johnson's home and informed appellant that the victim was going to die, Boxley appeared "scared to death" while appellant and Melendez remained happy.

Trooper Kurt Tempinski of the Pennsylvania State Police, an expert in toolmarks, ballistics and firearms, testified that bullet fragments and shell casings recovered from the crime scene matched the 9 millimeter Ruger and Sturm Ruger revolvers recovered by the police. In addition, the Commonwealth introduced into evidence a statement appellant gave to New York City police on July 1, 1997, in which he admitted, among other things, that he used a 9 millimeter Ruger during the incident, that three young children were present at the scene of the shooting, and that he fired two shots at Bolton. In a statement appellant made to the Reading police, he again admitted that he had shot twice at Bolton. At trial, appellant identified the firearms introduced by the Commonwealth as those he and Boxley had used in the shooting.

The foregoing evidence is sufficient to establish beyond a reasonable doubt that Jason Bolton was unlawfully killed pursuant to a conspiracy in which appellant played an active part, including himself firing shots at the victim, which fully warranted a conclusion that he harbored a specific intent to kill. We now turn to appellant's specific claims of error.

II. Ineffective Assistance of Counsel

Appellant raises a total of seven claims of ineffective assistance of trial counsel during both the guilt and penalty phases.⁹ Appellant forwards his claims under both the federal and the Pennsylvania Constitutions. He does not argue that the right to counsel implicated by his claims differs under those charters, instead forwarding a single argument as to each claim. In any event, it is well-settled that the test for counsel ineffectiveness is the same under both charters: It is the performance and prejudice test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Bell v. Cone, 535 U.S. 685, ___-___, 122 S.Ct. 1843, 1850-52, 152 L.Ed.2d 914 (2002); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa.1987).¹⁰ To prevail on a claim that counsel was constitutionally ineffective, the appellant must overcome the presumption of competence by showing that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (Pa.1999).¹¹ A failure to satisfy any prong of the test...