Com. v. Collins

• Decision Date: 11 December 1997
• Citation: 549 Pa. 593,702 A.2d 540
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Rodney COLLINS, Appellant.
• Court: Pennsylvania Supreme Court

Page 540

702 A.2d 540

549 Pa. 593

COMMONWEALTH of Pennsylvania, Appellee, v. Rodney COLLINS, Appellant.

Supreme Court of Pennsylvania.

Argued April 28, 1997.

Decided Oct. 27, 1997.

Reargument Denied Dec. 11, 1997.

[549 Pa. 596] James S. Bruno, Philadelphia, for R. Collins.

Catherine Marshall, Jonathan W. Hugg, Philadelphia, Robert A. Graci, Harrisburg, for the Commonwealth.

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

OPINION OF THE COURT

CAPPY, Justice.

Following a jury trial, Appellant was sentenced to death for the first degree murder of Andre Graves ("Graves"). ¹ After a review of the evidence and the issues raised by Appellant, we affirm. ²

On July 13, 1992, shortly before 4 a.m., Lillian Albritton ("Albritton") was awakened by the sound of gunfire on the street outside her home in Philadelphia. She ran to the window and observed a driverless car drift across the street and come to rest in front of her home. Inside, slumped over the front passenger seat, was the dead body of Andre Graves.

The police arrived within minutes. They observed that Graves had two bullet holes in the back of the head, and a large exit wound under his right eye. A third bullet was later found to have grazed his skull. Blood was splattered away from Graves and toward the dashboard in front of him and the seat to his side, both of which were riddled with bullet holes.

The physical evidence indicated that Graves had been shot from the back seat of the car. Both rear doors were wide open. Two copper bullet casings, consistent with the bullets which had killed Graves, were found in the rear passenger compartment, and additional casings were located under the driver's seat and in the street nearby. Two bullets were embedded in the front passenger dashboard and door beside the victim. Two additional bullets were recovered by the police from the homes of Albritton's neighbors and fragments of a fifth bullet lay on the street next to where the car came to rest. Forensic examination revealed that all of the bullets were fired from the same gun.

Homicide detectives interviewed Kevin Cofer ("Cofer"), who informed them that he saw the shooting and that Appellant was the killer. Cofer stated that at the time of the murder, he, Graves and Appellant were returning from an unsuccessful search for members of a West Philadelphia gang, the "Boys from the Bottom". Graves had been seeking revenge against the gang members for a beating he had suffered at their hands the previous afternoon, and was in the front passenger seat. Cofer was in the driver's seat. Appellant sat alone in the back.

Cofer informed the police that Appellant told Cofer to turn onto 54th Street. Cofer stated that, "When I turned up the block, all of a sudden I heard rapid gunfire [from] the back seat ... When I turned, I saw [Appellant] shooting Andre Graves in the back of the head." Cofer stated that he saw Appellant fire at least three rounds from a black handgun into Graves from point blank range.

Cofer slammed on the brakes, almost crashing the car. Appellant exited the back seat and fled to the nearby apartment of his girlfriend, Thiasa Cox ("Cox"). Cofer chased after Appellant and inside Cox's apartment confronted him with Graves' murder. Appellant responded that Graves "could have got us rocked" (i.e. killed). In a subsequent confrontation Appellant asserted that the murder was justified because Graves had informed "The Boys" that Appellant "was doing all the shooting at them."

At Appellant's trial, several witnesses testified that Appellant had been trying to locate Graves on the day of the murder. One witness testified that Appellant owned a black .45 handgun, and that on the day of the murder the witness handed the gun to Appellant. Appellant was still carrying the gun at the time he joined Cofer and Graves. Another witness recalled seeing Cofer, Graves and Appellant in the car, with Appellant in the rear seat, Graves in the front and Cofer driving. Witnesses present at Cox's apartment testified that Appellant had blood on his knee when he entered, and that he was extremely agitated and nervous.

The jury found Appellant guilty of first degree murder and possessing an instrument of crime. In the penalty phase, the jury found two aggravating circumstances: 1) that by shooting the victim as he sat next to Cofer, as well as by doing so in a residential neighborhood and hitting two occupied homes, Appellant knowingly created a grave risk to others when he murdered Graves; ³ and 2) that Appellant had a significant history of committing violent felonies. ⁴ The jury determined that these aggravating circumstances outweighed the mitigating circumstances (that Appellant had a troubled childhood and Appellant's age at the time of the murder). Appellant was sentenced to death.

While Appellant does not specifically contest the sufficiency of the evidence to sustain his conviction, in any case in which we affirm the imposition of the sentence of death, we are required to determine if the evidence is sufficient to sustain Appellant's conviction for first degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert denied 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The test is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth as verdict winner, the trier of fact could have found that the defendant's guilt was established beyond a reasonable doubt. Commonwealth v. Burgos, 530 Pa. 473, 476, 610 A.2d 11, 13 (1992).

To prove murder in the first degree, the Commonwealth must show that a person was killed unlawfully, that the person accused did the killing and that the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 (1995). The Commonwealth presented evidence which showed that Graves was unlawfully killed by multiple gunshots fired into the back of his head, and that Appellant fired the gun. The use of a deadly weapon on a vital part of the victim's body establishes the degree of intent necessary to support a first degree murder charge. Id. at 171, 666 A.2d at 226. Additional evidence of premeditation could be found in testimony that Appellant was looking for Graves earlier in the day and that Appellant took a gun with him without revealing the fact to Graves and Cofer, and in Appellant's explanation to Cofer of his motive for killing Graves. The evidence is clearly sufficient to support a finding of first degree murder.

Appellant brings three specific assignments of error to our attention: that the Commonwealth attorney's statements and tactics were so inflammatory that they diverted the jury's attention from its function; that Appellant's trial counsel was ineffective for failing to object to those statements and tactics; and that his trial counsel was ineffective for not requesting that an alibi instruction be given to the jury.

The statements to which Appellant takes exception took place during the Commonwealth's examination of Cofer and during closing argument. As noted above, Cofer had given a statement to the police in which he accused Appellant of the murder of Graves, and had subsequently given preliminary hearing testimony to the same effect. At trial, however, Cofer attempted to recant his prior statements. The Commonwealth introduced Cofer's statement to the police, his prior testimony and two letters written by Appellant to Cofer, in which Appellant pressed Cofer to recant or risk being branded a "snitch". The Commonwealth also elicited testimony from Cofer that he was afraid for his life if he testified. ⁵

Cofer did not testify that Appellant, or anyone else, had actually threatened him. Instead, Cofer testified that his fear arose from the fact that he was in prison. Appellant nevertheless contends that the line of questioning was improper because it unfairly created the false impression that Appellant had threatened Cofer with reprisals if he were to testify. Appellant claims that this effect was magnified by the Commonwealth's closing argument, when the prosecutor argued to the jury:

Because wouldn't it be great, wouldn't we live in a fabulous city where someone accused of murder can scare off and pay off and influence all of the witnesses against him, and all you have to do is come to Court, and when they change their story and they say, I got amnesia now, or you don't have to testify, I don't want to be involved in this no more, then oh, we will all just throw up our hands and say, sorry we bothered you, let's find him not guilty.

(N.T. May 17, 1993, pp. 748-49) (Emphasis added).

Appellant argues that this summation mischaracterized Cofer's testimony, once again by implying that Appellant had threatened Cofer with reprisals if he were to testify against Appellant.

Appellant correctly argues that threats against a witness are not admissible as an admission of guilt against the accused unless the accused is linked in some way to the making of the threat. Commonwealth v. Carr, 436 Pa. 124, 127, 259 A.2d 165, 167 (1969).

That was not the purpose for which the testimony was elicited. The portion of the oral cross-examination of Cofer to which Appellant objects was prompted by Cofer's failure to testify at trial in accordance with his previous statement to the police and with his preliminary hearing testimony, in each of which Cofer had stated that Appellant had shot Graves in the back of the head. Thus, the Commonwealth's line of questioning was permissible to demonstrate Cofer's motive for changing his testimony was that he was afraid of the consequences if he testified truthfully. Id.; Commonwealth v. Ragan, 538 Pa. 2, 27-28, 645 A.2d 811, 823-24 (1994); Commonwealth v. Floyd, 494 Pa. 537, 431 A.2d 984 (1981); Commonwealth v. Martin, 356 Pa.Super. 525, 531, 515 A.2d 18, 20-21 (1986).

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