Com. v. Cull

• Decision Date: 11 August 1992
• Citation: 613 A.2d 12,418 Pa.Super. 23
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Demetrius CULL, Appellee.
• Court: Pennsylvania Superior Court

Page 12

613 A.2d 12

418 Pa.Super. 23

COMMONWEALTH of Pennsylvania, Appellant, v. Demetrius CULL, Appellee.

Superior Court of Pennsylvania.

Argued March 12, 1992.

Filed Aug. 11, 1992.

Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Jules Epstein, Philadelphia, for appellee.

Before WIEAND, TAMILIA and CERCONE, JJ.

WIEAND, Judge:

After Demetrius Cull had been tried by jury and found guilty of first degree murder, criminal conspiracy and possession of an instrument of crime, the trial court granted a defense motion for new trial. Relying upon the decision of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the trial court held that defense counsel had been ineffective for failing to move pre-trial or at trial to redact or exclude statements of a co-defendant which implicated Cull in the offenses with which he had been charged. The Commonwealth has appealed. It contends that the statements made by the co-defendant were admissible pursuant to the co-conspirator exception to the hearsay rule and that objections by defense counsel, therefore, would have been unsupportable.

Cull and his co-defendant, Anthony Smith, were tried jointly before a jury, and both were found guilty of first degree murder, criminal conspiracy and possession of an instrument of crime on evidence summarized by the trial court as follows:

[O]n September 13, 1988, the body of Sharon Smith was found in the basement of 248 North Wanamaker Street, a rowhouse located in the City of Philadelphia. The decedent had been shot once in the head with a .32 caliber Smith and Wesson bullet.

On Saturday, September 10, 1988, at approximately 8:00 a.m., Deborah Coleman, who lived in the rowhouse next door to 248 North Wanamaker Street, [had] heard sounds of a scuffle and an argument coming from 248 North Wanamaker Street. Ms. Coleman testified that she [had] heard sounds of a physical struggle on both the first and second floor of the house, with several male voices and a female voice arguing, and that she [had] heard the female voice scream, "Help me, help me, please." Shortly thereafter the noises from next door [had] stopped abruptly.

Ms. Coleman identified both the defendant, Demetrius Cull, and co-defendant, Anthony Smith, as residents of the 248 North Wanamaker Street rowhouse. Several witnesses testified that co-defendant Smith sold "crack" cocaine from the rowhouse, while the defendant often acted as a lookout for police.

Both the defendant and co-defendant Smith were observed leaving 248 North Wanamaker Street between 8:00 a.m. and 8:30 a.m. that morning by a neighbor. Shortly thereafter, the co-defendants drove to the 100 block of Wanamaker Street, where they spoke to Faye Cherry, co-defendant Smith's former girlfriend.

Co-defendant Smith told Faye Cherry that "we just shot this fiend in the head and left her in the basement." Smith told Cherry that Sharon Smith was killed "because we wouldn't give her no drugs and she threatened to call the cops." [Smith also] told Cherry not to tell anyone that she knew him if she was questioned, and also said he was leaving town.

About 30 minutes later, the co-defendant Smith telephoned Fitzroy Lewis (also known as "Mark" or "Shorty"), who had been one of Smith's drug suppliers. In that conversation, Anthony Smith stated that he [had] directed the defendant, Demetrius Cull, to shoot the decedent. Anthony Smith said he was leaving for New York, and telephoned Lewis several days later to say that he was in New York, but would soon be heading south.

Several weeks before the murder of Sharon Smith, Anthony Smith told Lewis that he had purchased a .32 caliber gun. The night before the murder, defendant Demetrius Cull was observed firing a gun into the air outside 248 North Wanamaker Street. Several spent cartridges consistent with the bullet which killed Sharon Smith were found inside 248 North Wanamaker Street.

The medical examiner conducted an autopsy, which revealed that the decedent [had been] struck by a single bullet in the left side of her head, which [had] pierced the skull and entered the brain. The medical examiner testified that the cause of death, to a reasonable degree of medical certainty, was the gunshot wound to the head.

On January 25, 1989, the defendant was arrested in Columbia, South Carolina and was returned to Philadelphia on January 26, 1989.

The standard we employ to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel's commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). To establish prejudice under this standard "requires [a] showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See: Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975 (1987); Commonwealth v. Gainer, 397 Pa.Super. 348, 352, 580 A.2d 333, 335 (1990) (en banc).

In Bruton v. United States, supra, the Supreme Court held that in a joint trial the admission into evidence of a confession by a co-defendant which inculpates the defendant violates the defendant's constitutional right to confront adverse witnesses under the Sixth Amendment to the United States Constitution. However, statements made by a co-conspirator during the course of a conspiracy are generally held to be admissible against another co-conspirator. "A well-established exception to the hearsay rule permits the out-of-court declarations of one co-conspirator to be admitted against another co-conspirator provided that the declarations [are] made during the conspiracy and in furtherance of the common design." Commonwealth v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981). See also: Commonwealth v. Lambert, 529 Pa. 320, 334-335, 603 A.2d 568, 575 (1992); Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981); Commonwealth v. Moyers, 391 Pa.Super. 262, 267, 570 A.2d 1323, 1326 (1990).

The interplay between the rule announced in Bruton and the co-conspirator exception to the hearsay rule was discussed by the Pennsylvania Supreme Court in Commonwealth v. Coccioletti, supra. The Court there said:

[I]n Bruton, the co-defendant's out of court confession was inadmissible because it violated the hearsay rule of evidence. Id. at 128 n. 3, 88 S.Ct. at 1623 n. 3. The Court expressly reserved judgment about cases where the co-defendant's confession would be admissible under some exception to the hearsay rule. Id. at 128 n. 3, 88 S.Ct. at 1623 n. 3.

....

In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), a criminal case originating in the State of Georgia, the U.S. Supreme Court held that an out of court declaration by a co-conspirator which implicated the defendant was admissible and the defendant's Sixth Amendment rights were not violated even though the co-conspirator did not take the stand. Unlike the Bruton case where no hearsay exception existed, the declarations were admitted in a Georgia Court under the co-conspirator exception to the hearsay rule.

In Dutton, the U.S. Supreme Court refused to equate the hearsay rule with the Sixth Amendment confrontation clause, i.e., even though a statement may come within an exception to the hearsay rule, it must still be tested against the confrontation clause. The Court held that the confrontation clause was not violated whenever the declarations had strong "indicia of reliability". Id. at 89, 91 S.Ct. at 220. These "indicia of reliability" satisfied the Sixth Amendment confrontation clause policy of "practical concern for the accuracy of the truth-determining process in criminal trials ..." Id. at 89, 91 S.Ct. at 220.

Id. 493 Pa. at 111-112, 425 A.2d at 391. Generally, sufficient "indicia of reliability" to pass muster under the confrontation clause "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Idaho v. Wright, 497 U.S. 805, 810, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 652 (1990). See also: Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 2782-2783, 97 L.Ed.2d 144, 157-158 (1987); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980); Commonwealth v. Watson, 355 Pa.Super. 160, 166, 512 A.2d 1261, 1264 (1986). We conclude, therefore, that Bruton is not applicable to exclude out of court statements by a co-defendant which are admissible under the co-conspirator exception to the hearsay rule.

The statements of appellee's co-defendant, which the trial court determined to be in violation of the Bruton rule, were heard by the jury primarily via testimony of Commonwealth witnesses Faye Cherry and Fitzroy Lewis. Cherry, who was a former girlfriend of Smith, testified that at about 8:30 a.m. on September 10, 1988, approximately one-half hour after the murder, Cull and Smith arrived at her home via taxi. She testified that the following then occurred:...