Com. v. Cox

• Decision Date: 18 February 1997
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Russell COX, Appellant.
• Court: Pennsylvania Supreme Court

Page 1279

686 A.2d 1279

546 Pa. 515

COMMONWEALTH of Pennsylvania, Appellee, v. Russell COX, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 23, 1995.

Decided Dec. 23, 1996.

Reargument Denied Feb. 18, 1997.

[546 Pa. 523] Bernard L. Siegel, Philadelphia, for Russell Cox.

Catherine Marshall, Norman Gross, Robert A. Graci, Attorney General's Office for Com.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

FLAHERTY, Chief Justice.

Appellant, Russell Cox, was convicted by a jury of two counts of murder of the first degree, ¹ of criminal conspiracy ² and of possessing an instrument of crime, ³ and one count of rape. ⁴ At the conclusion of the penalty phase of appellant's trial, the jury returned a sentence of death for each of the two murder convictions. The present direct appeal ensued. We affirm.

The record reflects that appellant's conviction resulted from an incident that occurred on February 27, 1986, in which appellant and his accomplice, Percy Lee, brutally killed Evelyn Brown and her 17-year-old daughter, Tina, and appellant raped Tina. Lee knew the victims since he and his girlfriend and child had lived with Mrs. Brown and her four children for approximately one year before Mrs. Brown asked him to leave in early 1986. On February 26, 1986, appellant and Lee knocked on the front door of the Browns' apartment in the early evening hours and asked to use the telephone. Sonya Brown, one of Mrs. Brown's daughters, recognized Lee and, hearing two voices, knew that he was not alone. Ms. Brown refused to let Lee in. ⁵ Lee then repeatedly kicked and banged on the door for several minutes. He left a note: "All of you bitches, hit man Butter."

Appellant and Lee left but returned to the Browns' apartment in the early morning of the next day. At approximately 2:00 a.m., Denise Williams, a neighbor of the Browns, saw the two men standing outside the Browns' front door. Williams observed appellant conversing through the closed door and heard the voice of one of the female occupants of the apartment. She also saw Lee standing to the side with his back against the wall, outside the view of the peephole in the door. Appellant persuaded the occupants to let him inside the apartment.

At approximately 3:30 a.m., appellant and Lee went to the apartment of a man named Samuel Gilbert, who lived in the same apartment building as the Browns. Gilbert had known Lee and his mother since Lee was a child. Lee had occasionally stayed with Gilbert after he was evicted from the Browns' apartment. Lee awoke Gilbert and told him "I did something bad" and admitted "I stabbed Evelyn." Lee then stuffed clothing into a plastic bag and told Gilbert he was going to his mother's house. Lee left Gilbert's apartment with appellant and both of them stayed together for a while at Lee's mother's home.

The police were called and arrived at the Browns' apartment at 8:40 a.m. They found the body of Evelyn Brown in one of the bedrooms of the apartment. Her hands and feet had been tied behind her back and she was in a kneeling position with her back against the bed. A pair of panties had been stuffed into her mouth. Her body had a total of forty-eight stab, knife and puncture wounds to the face, neck, chest, side and thigh. The wounds had been inflicted through the use of cutting instruments, such as knives and scissors, and with such force that a rib was broken and wounds were inches in length and depth.

In another bedroom, police found the body of Tina Brown. Tina Brown's hands were bound behind her back, and a cloth noose had been tied around her neck. She had been raped and then also stabbed to death with cutting instruments such as knives and scissors. Her body had a total of fifty-three puncture, stab and knife wounds to the head, neck, chest, abdomen, buttocks and thigh. The wounds had also been inflicted with great force.

Police discovered other physical evidence at the crime scene. A bar of blood-stained soap was recovered from a bathroom sink. There were also two playing cards, an ace and a jack, that were lying face up on a pillow next to the body of Evelyn Brown.

On the same day, Samuel Gilbert informed Philadelphia homicide detectives of Lee's admission. Lee was later arrested at his mother's home. A search warrant for the premises was executed and the police recovered two knives, a pair of scissors, and various items of clothing that were removed from Lee's person. ⁶

Within a week, appellant gave two statements to the police about his involvement in the incident. On the first occasion, four days after the incident, appellant came to the police station voluntarily to give information. Even though appellant was not a suspect in the case, the police warned appellant of his Miranda rights, which he waived. Appellant then told Detective Bennett the following. Appellant had been present at the outside of the apartment earlier on the day when the killings occurred. He had observed someone else knocking on the door and departing when the knock was not answered. He later met the other person who showed appellant the two bloodied bodies and admitted that he had killed the victims. After giving this statement, appellant agreed to return soon to take a polygraph examination and departed for home.

On the second occasion, appellant voluntarily was transported by the police to the police station for the polygraph examination. After waiving his Miranda rights but before submitting to the examination, appellant told the polygraph examiner, Detective Davis, that he wanted to talk to Detectives Nachurski and Lory about the murders rather than to take the polygraph examination. Appellant then admitted he raped Tina Brown. At that moment, the detectives stopped him from making any further statements and gave him Miranda warnings again. Appellant waived his rights and was placed under arrest.

Appellant then gave a statement confessing to the rape but denying involvement in the murders. The statement reflected that: both appellant and Lee had gone the evening before the incident to the apartment, had left and had returned; someone from the apartment let them in after appellant conversed through the peephole; Lee told appellant to help unstring a shoe lace from a shoe in order to bind one of the victims, which appellant did; after Lee bound and gagged Tina and removed most of her clothes, Lee told appellant to have sex with Tina, which appellant did; and, Lee stabbed both women many times with scissors and a knife, which appellant eyewitnessed.

Appellant was tried jointly with Lee before a jury and found guilty of two charges of murder of the first degree, criminal conspiracy and possessing an instrument of crime and one count of rape. ⁷ At the conclusion of the penalty phase, the jury found three aggravating circumstances and three mitigating circumstances. The aggravating circumstances were: the defendant committed a killing while in the perpetration of felony, 42 Pa.C.S. § 9711(d)(6); the offense was committed by means of torture, 42 Pa.C.S. § 9711(d)(8); and, the defendant had been convicted of another offense for which a sentence of life imprisonment or death could have been imposed, 42 Pa.C.S. § 9711(d)(10). The three mitigating circumstances were: the defendant had no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); the age of the defendant at the time of the crime, 42 Pa.C.S. § 9711(e)(4); and other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). The jury found that the aggravating circumstances outweighed the mitigating circumstances and returned a sentence of death for each of the two murder convictions.

The court imposed a sentence of death for each of the two convictions of first-degree murder, which sentences were to run consecutively. In addition, the court imposed sentences of ten to twenty years for rape, five to ten years for criminal conspiracy and two and one-half to five years for possessing an instrument of crime, all of which were to run concurrently with the death penalty imposed on appellant's first conviction for first-degree murder.

Post-verdict motions were filed by trial counsel; however, new counsel was appointed and supplemental motions alleging ineffective assistance of counsel were filed. All post-verdict motions were subsequently denied and this appeal followed.

Although appellant has not specifically challenged the sufficiency of the evidence supporting his two first-degree murder convictions, we have nonetheless independently reviewed the evidence pursuant to the standard established in 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 applicable standard of review is whether, viewing all the evidence in the light most favorable to the Commonwealth as verdict winner, a jury could find that every element of the crime exists beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 567, 574 A.2d 590, 592 (1990). This standard is equally applicable in cases where the evidence is circumstantial rather than direct, provided that the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Murphy, 540 Pa. 318, 324, 657 A.2d 927, 930 (1995).

To prove murder of the first degree, the Commonwealth must demonstrate that the defendant killed with a specific intent to kill. 18 Pa.C.S. § 2502. The Commonwealth must show that: 1) a human being has unlawfully been killed; 2) the defendant participated in the killing; and 3) the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). Circumstantial evidence can itself be sufficient to prove any element or all of the elements of the crime of criminal homicide....