Com. v. Colson

• Decision Date: 04 April 1985
• Citation: 507 Pa. 440,490 A.2d 811
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Martin A. COLSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 811

490 A.2d 811

507 Pa. 440

COMMONWEALTH of Pennsylvania, Appellee, v. Martin A. COLSON, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 25, 1984.

Decided April 4, 1985.

[507 Pa. 448] Mel D. Kardos, Newtown, for appellant.

Michael J. Kane, Dist. Atty., Robert E. Goldman, Chief/Deputy Dist. Atty., Stephen B. Harris, First Asst. Dist. Atty., Doylestown, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

ZAPPALA, Justice.

Appellant, Martin Colson, appeals a judgment of sentence of death for murder of the first degree imposed by the Court of Common Pleas of Bucks County.

The Commonwealth's evidence established that decedent, Thomas Livezey, resided in Fountainville, Bucks County, and was involved in various business enterprises. Among other things, he was a painting contractor. On November 15, 1976, decedent received a call at home from a woman who identified herself as Melinda Kelly. The caller said she wanted an estimate for a painting job at a house into which she was about to move. Decedent referred her to his wife, Barbara Livezey. She took directions from the caller to a purported job site in Upper Bucks County. It was agreed that decedent would go to the site the following Saturday morning, November 20.

Decedent left home in a van on the morning of November 20. He and the van were next seen by passing motorists on Keystone Road in Upper Bucks County. Two of the motorists who stopped at the scene were Donald Landis and Frank Smolinsky. They observed the van parked with the door open and decedent lying on the road near the van. Landis had heard gunshots shortly before. State Trooper Thomas Stotsenburgh arrived at the scene and found decedent dead of gunshot wounds. There were shotgun wadding and shells near the body. Stotsenburgh found a clipboard with directions to the purported job site. The street on which the job was to be done did not exist.

After the killing, it was learned through investigation that decedent was a partner in real estate ventures with his brother, William, and that each of them held large insurance policies on the life of the other. The business was in debt, which led to disputes between the brothers. Early in 1976, decedent offered his brother $4,000 for his interest, which was refused. Decedent initiated legal proceedings to dissolve the partnership, which were in progress at the time of his death. The homicide made William the sole owner of the business. The business received $237,000 in life insurance proceeds. Debts were paid, and William netted $100,000.

William Livezey and Appellant were linked to the homicide by Jerome Randis, who spoke to the State Police on March 22, 1979. Randis said that he was associated with Livezey and Appellant in the drug business. He was present at or party to conversations in which they spoke of their involvement in the killing. On one occasion after the killing, Livezey and Appellant discussed the killing and Appellant said he wanted money for it. During conversations between Appellant and Randis, Appellant said that he arranged to have decedent lured to the scene of the killing, that he shot decedent with a shotgun obtained from William Livezey, and that he then threw the shotgun into the Delaware river. Randis was present on another occasion when Appellant told a third person he did a "hit" for William Livezey. On still another occasion, Livezey told Randis he arranged to have Appellant kill decedent. A further link was provided by Daniel Thurber, another associate of Appellant. Thurber was with Appellant in Florida after the killing. He testified that Appellant told him he "shot a guy in Pennsylvania," was paid for it, and threw the weapon in a river.

After Randis revealed his information, Barbara Livezey participated in a telephone "lineup" under the supervision of the State Police. She heard eight women speak over the telephone and identified one of them as the caller who directed decedent to the scene of the homicide. The woman she identified was Eva Colson, the wife of Appellant. Shortly after the "lineup", Eva Colson left her residence, and according to the testimony of a state trooper at trial, she had not been located thereafter.

In December 1978, William Livezey went to the office of James Hansley, Police Chief of the Borough of Lansdale, Montgomery County to pay some traffic fines. Hansley had been acquainted with both Livezey and decedent. He told Livezey he was a suspect in the murder on the basis of what was then known about his business dealings. Livezey said he had discussed the matter with the State Police and had been advised by his attorney not to say anything. On February 20, 1979, Hansley learned that there were warrants outstanding for Livezey's arrest on drug charges. He attempted to locate Livezey and was not able to do so. Livezey's whereabouts were unknown until September 17, 1979, when police were called to a residence in Lansdale where a disturbance was going on. Livezey's girlfriend, Barbara Kelly came out of the residence. She said that Livezey was inside, had a gun, and was determined not to be taken alive. Hansley attempted to persuade Livezey to come out. When this failed, tear gas canisters were thrown into the residence. One canister came into contact with a curtain on a window and started a fire. Police entered the residence after the fire was put out and found Livezey dead of a self-inflicted bullet wound in the head.

Appellant claims to have been denied due process of law by delay in his arrest. Such claim, if accepted, would entitle him to a discharge. Appellant was arrested on February 20, 1980, which was more than three years after the crime. He argues that this was unfair because certain potential defense witnesses were dead or could not be located, those who could be located no longer had independent recollections of events, and Appellant himself no longer had a clear memory of events at the time of the murder. A state trooper gave reasons for the delay at a pre-trial hearing on this issue. The State Police did not believe they had probable cause to make any arrests until they spoke to Jerome Randis. After that, they determined that William Livezey and Martin and Eva Colson should be arrested. They desired to locate and arrest all three at the same time, fearing that if one were arrested, the other two would go into hiding. They found that they were unable to locate any of the suspects in the Commonwealth. The State Police had information indicating that Appellant was in Wisconsin and Florida at different times. They followed leads in those states. Appellant was ultimately located and arrested in Tampa, Florida.

In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Court addressed the question of delay in the filing of charges, which raises issues similar to those involved in a delayed arrest. The court held that proof of prejudice is a necessary, but not sufficient, condition for a finding of denial of due process. The prosecution is under no constitutional duty to file charges as soon as it obtains sufficient evidence to establish probable cause or prove guilt. It may delay doing so in order to continue its investigation. A delay for a reasonable investigation does not violate due process even if it adversely affects the defendant's case. Lovasco involved an eighteen month delay in the filing of federal firearms charges. The delay was due to an investigation conducted for the purpose of finding co-conspirators. The Court determined that the delay for such purpose was reasonable. Consequently there was no denial of due process.

Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976), involved a murder prosecution. We found that a four year delay in the filing of charges did not deny due process where the police had difficulty putting together the facts and the defendant was put on notice at the time of the murder that he was a suspect. A seven month delay in the arrest of a rape defendant did not deny due process where the police made reasonable efforts to locate him at the residences of relatives and at various hangouts, Commonwealth v. Sanders, 260 Pa.Super. 358, 394 A.2d 591 (1978). In the instant case, although Appellant claims he was prejudiced, there is no evidence to support that contention. He appears to have had notice that he was a suspect, given his departure from the Commonwealth and the testimony of his statements that he committed the murder. The pre-arrest delay was reasonable in view of the initial difficulty experienced by the police in ascertaining the facts, Appellant's absence from the Commonwealth, and the diligent efforts to locate all of the suspects. Therefore, we find no denial of due process.

Appellant asserts various grounds for a new trial. One of these is that the jury was improperly death qualified. Prospective jurors who stated that they would not under any circumstances vote for the death penalty were excluded. Appellant argues that this was improper because it resulted in a jury that was more conviction-prone and did not contain a representative cross-section of the community. The death qualification procedure followed here was approved in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Similarly, we have held that death qualification does not deprive the defendant of a fair determination of guilt or innocence, Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975). See also, Commonwealth v. Travaglia, 502 Pa. 474, 503 n. 2, 467 A.2d 288, 302-03 n. 2 (1983).

Appellant also argues that death qualification was improper because this should not have been treated as a capital case. The argument is based on the fact that he was accused of committing a murder prior to the enactment of the present death penalty statute, Act of September 13, 1978, P.L. 756, No....