Com. v. Cox

CourtUnited States State Supreme Court of Pennsylvania
Citation581 Pa. 107,863 A.2d 536
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Russell COX, Appellant.
Decision Date22 December 2004

863 A.2d 536
581 Pa. 107

COMMONWEALTH of Pennsylvania, Appellee,
Russell COX, Appellant

Supreme Court of Pennsylvania.

Submitted November 6, 2003.

Decided December 22, 2004.

863 A.2d 539
David Scott Rudenstein, Philadelphia, for Russell Cox

Hugh J. Burns, Philadelphia, Amy Zapp, Harrisburg, Lorie K. Dakessian, for Com. of PA.



Justice NEWMAN.

Russell Cox (Appellant) appeals from the Order of the Court of Common Pleas of Philadelphia County (PCRA court) dismissing his Petition for Post-Conviction Relief pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

863 A.2d 540
For the reasons set forth herein, we affirm the Order of the PCRA court


On February 26, 1986, at approximately 7:00 p.m., Appellant accompanied Percy Lee (Lee) to the North Philadelphia apartment of Evelyn Brown, where Lee resided prior to being evicted. For approximately one year preceding this date, Lee, a former family friend, lived with Evelyn Brown, and her four children, in the apartment.

When Appellant and Lee arrived at the front door of the Browns' apartment, Lee knocked on the door and asked to use the telephone. Sonya Brown, the eldest daughter of Evelyn Brown, recognized Lee and, based upon specific instructions from her mother, refused to allow him to enter. As a result, Lee became enraged and angrily kicked the door repeatedly for several minutes. Before leaving, Lee wrote in black marker across the apartment door: "All you bitches, hit man Butter." (Notes of Testimony (N.T.), April 27, 1987, page 497).

Early the next morning, on February 27, 1986, Appellant and Lee returned to the Browns' apartment. A neighbor of the Browns, Denise Williams (Williams), testified that she saw Appellant and Lee standing outside of the Browns' apartment door shortly before 2:00 a.m. Williams testified that she watched as Appellant conversed with someone inside the apartment. Meanwhile, she also noticed Lee standing with his back pressed against the adjacent wall to avoid being detected through the peephole. Williams further testified that she could hear Appellant conversing with one of the female occupants of the apartment, whom he eventually persuaded into opening the front door. When the door opened, both Appellant and Lee entered the apartment, which at the time was occupied by Evelyn Brown, along with her seventeen-year-old daughter Tina Brown and five-year-old son Daniel Brown.

After entering the Browns' apartment, Appellant and Lee were not spotted again until approximately 3:30 a.m., when they unexpectedly appeared at the apartment of Samuel Gilbert (Gilbert). Gilbert, who lived in the same apartment building as the Browns, was a family friend of Lee, with whom Lee had occasionally lived following his eviction from the Browns' apartment. Lee awakened Gilbert and explained to him that he "did something bad." (N.T., May 1, 1987, page 1075). After Gilbert inquired further, Lee admitted that he stabbed Evelyn Brown. At this point, Lee gathered up a few articles of clothing from Gilbert's apartment and informed Gilbert that both he and Appellant were leaving to stay at his mother's house.

Later that same morning, Sonya Brown returned home from an overnight babysitting job to find her mother and younger sister brutally murdered.1 The police were immediately notified and arrived at the Browns' apartment at approximately 8:40 a.m. In the rear bedroom of the apartment, the police discovered Evelyn Brown in a kneeling position with her back against her bed. Her hands and feet had been hog-tied behind her back and a pair of panties was stuffed inside her mouth. She had been stabbed with a knife and scissors a total of forty-eight times in the face, neck, chest, side, and thigh. The

863 A.2d 541
deep puncture wounds from the weapons caused blood to spatter as much as four feet from her corpse. Next to her body, the killers left behind two playing cards, an ace and a jack, face-up on a pillow

In a nearby bedroom, the police also discovered the blood-soaked body of Tina Brown. Tina's hands had been tied behind her back with a shoelace and a cloth noose had been positioned around her neck. Her pants had been removed and she had been raped prior to being stabbed an aggregate of fifty-three times in the face, head, neck, chest, abdomen, buttocks, and thigh. Similar to the gashes suffered by her mother, Tina's deep puncture wounds had been inflicted by a knife and scissors.

Later that same day, Gilbert informed the investigating homicide detectives of his early-morning encounter with Lee, in which Lee admitted to stabbing Evelyn Brown. Based on this information, the police immediately obtained an arrest warrant for Lee. The police also executed a search warrant for the home of Lee's mother, seizing two knives and a pair of scissors consistent with the types of weapons used to inflict the deep puncture wounds on both victims.

A few days later, on March 2, 1986, Appellant voluntarily appeared at the police station to provide information about the incident. At this time, Appellant was not a suspect in the ongoing investigation; however, the homicide detectives informed Appellant of his Miranda2 rights, which he voluntarily waived. Appellant admitted to the detectives that he was present outside of the Browns' apartment earlier in the day when Lee knocked on the door. Appellant, however, denied any involvement in the murders. Instead, Appellant explained that Lee merely showed him the two blood-soaked bodies and, thereafter, admitted killing the victims. After providing this information, Appellant arranged to return at a later date for a polygraph examination.

On March 4, 1986, Appellant returned to the police station to take a polygraph examination. The homicide detectives yet again informed Appellant of his Miranda rights, which he voluntarily waived. Before submitting to the polygraph examination, Appellant notified the detectives that he wished to discuss the murders instead of taking the polygraph. Appellant then proceeded to confess to the detectives that he raped Tina Brown. At this point, the detectives stopped Appellant and once again informed him of his Miranda rights, which he again voluntarily waived. Thereafter, the police placed Appellant under arrest.

Once under arrest, Appellant fully confessed that he raped Tina Brown. Appellant also admitted that he was present during both murders. However, Appellant denied any involvement in the murders and claimed that Lee acted alone in killing both victims. In his statement to the police, Appellant admitted, inter alia, that he: (a) accompanied Lee to the Browns' apartment earlier in the night; (b) returned to the apartment later that night and someone let him into the apartment after conversing through the front door; (c) helped bind one of the victims with a shoelace; (d) had sex with Tina Brown after Lee bound and gagged her; (e) watched as Lee stabbed both victims numerous times with a knife and scissors; (f) accompanied Lee to Gilbert's apartment afterward; and (g) accompanied Lee to his mother's house where Lee cleaned the murder weapons.

From April 9, 1987 until May 20, 1987, Appellant was tried jointly with co-defendant

863 A.2d 542
Lee. On May 20, 1987, the jury found Appellant guilty of two counts of first-degree murder,3 criminal conspiracy,4 rape,5 and possessing an instrument of crime (PIC).6 On May 22, 1987, following a two-day penalty hearing, the jury sentenced Appellant to death for both murder convictions. In reaching its sentence of death, the jury found three aggravating circumstances and three mitigating circumstances. The three aggravating circumstances presented by the Commonwealth and found by the jury included: (1) Appellant committed the murders while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); (2) Appellant committed the offenses by means of torture, 42 Pa.C.S. § 9711(d)(8); and (3) Appellant had been convicted of another offense for which a sentence of life imprisonment could be imposed, 42 Pa.C.S. § 9711(d)(10). The three mitigating circumstances advanced by Appellant and found by the jury included: (1) Appellant had no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); (2) the age of Appellant at the time of the crime, 42 Pa.C.S. § 9711(e)(4); and (3) any other evidence of mitigation concerning the character and record of Appellant and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). After weighing the three aggravating circumstances against the three mitigating circumstances, the jury found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Appellant to death for each murder conviction.

Trial counsel filed Post-Verdict Motions; however, the court appointed new counsel after Appellant claimed that his trial counsel was ineffective. Thereafter, new counsel filed additional Post-Verdict Motions. Following an evidentiary hearing at which trial counsel testified, the trial court denied the Post-Verdict Motions. The court then formally imposed consecutive sentences of death for each of the two first-degree murder convictions against Appellant. The court also sentenced Appellant to concurrent terms of: (1) ten to twenty years' imprisonment for rape; (2) five to ten years' imprisonment for criminal conspiracy; and (3) two and one-half to five years' imprisonment for PIC.

Appellant filed a direct appeal to this Court and we affirmed the Judgments of Sentence on December 23, 1996. Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279 (1996), cert. denied, 522 U.S. 999, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997). Thereafter, on December 17, 1997, Appellant filed a pro se PCRA Petition. The court appointed counsel, who subsequently filed an Amended PCRA Petition on February 11, 1999. Unfortunately, the trial judge, the Honorable Robert A. Latrone,...

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