Com. v. Cull

• Decision Date: 28 March 1995
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Demetrius CULL, Appellant.
• Court: Pennsylvania Supreme Court

Page 476

656 A.2d 476

540 Pa. 161

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

Supreme Court of Pennsylvania.

Argued Jan. 25, 1994.

Decided March 28, 1995.

Jules Epstein, Philadelphia, for D. Cull.

Catherine Marshall, Karen A. Brancheau, Philadelphia, for Com.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

CASTILLE, Justice.

The two related issues raised in this appeal from the order of the Superior Court reversing the order of the Philadelphia Court of Common Pleas granting a new trial are (1) whether a third-party witness' testimony regarding appellant's co-defendant's statements incriminating appellant were admissible at trial, and (2) whether appellant's trial counsel rendered ineffective assistance for failing to object to the admission of the third party's testimony regarding appellant's co-defendant's statements. For the reasons set forth below, we find that the Superior Court properly reversed the trial court's grant of appellant's motion for a new trial because the statements made by appellant's co-conspirator were properly admitted at trial and, therefore, trial counsel was not ineffective for failing to object to their admission.

Following a joint jury trial in the Philadelphia County Court of Common Pleas, appellant Cull and his co-defendant, Anthony Smith, were convicted of First-Degree Murder, ¹ Criminal Conspiracy ² and Possession of an Instrument of Crime. ³ However, a post-verdict, pre-sentence motion for a new trial was filed by new counsel and granted by the trial court on the basis that trial counsel had been ineffective for failing to object to the admission of certain of appellant's co-defendant's statements incriminating appellant in the crimes charged.

The Commonwealth appealed the trial court's grant of a new trial to the Superior Court. The Superior Court in a unanimous panel opinion found that co-defendant Smith's statements were admissible into evidence pursuant to the co-conspirator exception to the hearsay rule because they were made in furtherance of the conspiracy existing between appellant and Smith. Commonwealth v. Cull, 418 Pa.Super. 23, 32-33, 613 A.2d 12, 16-17 (1992). Having so found, the Superior Court then reversed the order of the trial court on the basis that trial counsel was not ineffective for failing to object to properly admitted evidence. Id., 418 Pa.Super. at 33, 613 A.2d at 17. See Commonwealth v. Smith, 490 Pa. 380, 390, 416 A.2d 986, 990-991 (1980) (defense counsel cannot be deemed ineffective for failing to object to admission of properly admitted rebuttal testimony). Appellant filed a Petition for Allowance of Appeal of the Superior Court's order with this Court, which was granted. Commonwealth v. Cull, 535 Pa. 613, 629 A.2d 1376 (1993).

The evidence admitted at trial established that on September 13, 1988, the body of Sharon Smith was found in the basement of 248 North Wanamaker Street in Philadelphia. The victim had been shot once in the head with a .32 caliber Smith and Wesson firearm. A neighbor who lived in the rowhouse next door to 248 North Wanamaker Street testified that on Saturday, September 10, 1988, at approximately 8:00 a.m., she heard sounds of a scuffle and an argument coming from 248 North Wanamaker Street. The neighbor also heard the shouts and screams of male voices and one female voice come from both the first and second floors of the house. The neighbor heard the female voice scream, "Help me, help me, please," shortly after which the shouts and screams abruptly stopped. Both appellant and his co-defendant were identified as the residents of the 248 North Wanamaker Street rowhouse. Several other witnesses testified that co-defendant Smith sold crack cocaine from the rowhouse, while appellant Cull often acted as a lookout for police activity.

About thirty minutes after the victim's pleas for help were heard, another neighbor saw both appellant Cull and co-defendant Smith exiting 248 North Wanamaker Street. The two conspirators immediately drove to a nearby destination in the 100 block of Wanamaker Street, where they spoke to Faye Cherry, co-defendant Smith's former girlfriend. Witness Cherry testified that Smith instructed her not to tell anyone that she knew him if she was questioned, and also said he was leaving town.

Witness Cherry further testified at trial that, in appellant's presence, co-defendant Smith told her that "we just shot this fiend in the head and left her in the basement." Smith told Cherry that they murdered their victim simply "because we wouldn't give her no drugs and she threatened to call the cops." Appellant Cull then interjected "I shot the bitch because she scratched me in my face." Ms. Cherry testified that consistent with appellant Cull's inculpatory statement, she observed scratches on his face. Before departing, Smith made certain that Cherry possessed no photographs of him from which he might be identified and requested her telephone number so that he could keep himself informed as to "what's going on down here."

Fitzroy Lewis, one of Smith's drug suppliers, testified that Smith telephoned him at about 9:00 a.m. on the very same morning of the victim's untimely demise, advising Mr. Lewis that he and appellant Cull were going to close the "crack house" and leave town. Apparently Smith had come to the realization that the aforementioned murderous deed would adversely affect their ongoing drug operation. Mr. Lewis testified that in explanation for their sudden move, Smith stated that he and appellant had just killed Sharon Smith because "she was giving some problem." Smith described to Mr. Lewis how he and appellant Cull had dragged her down to the basement and beaten her, that appellant Cull had shot her at Smith's direction, and that, after cleaning up the blood, the two men packed their belongings and left the house for the purpose of permanent relocation. Smith then asked Lewis to recommend a hotel where he and appellant could stay until nightfall, after which they could then travel to New York under the cloak of darkness. Smith telephoned Lewis several days later to say that he was in New York, but would soon be heading south.

According to Mr. Lewis' testimony, Smith admitted to him that he had purchased a .32 caliber handgun several weeks before the murder. Lewis also testified that the night before the murder, he observed appellant Cull test-firing a handgun into the air outside 248 North Wanamaker Street. Police found several spent cartridges outside 248 North Wanamaker Street that matched the caliber of bullet which killed Sharon Smith.

The medical examiner's autopsy revealed that the victim 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's conclusion was that the cause of death, to a reasonable degree of medical certainty, was the gunshot wound to the head.

After searching fruitlessly for Smith for over three months, police finally located him in a North Carolina jail after which he was extradited to Philadelphia. At the time of his arrest, Smith gave a statement to the Philadelphia police placing himself at the scene of the crime but pinning the blame on appellant Cull for the murder. After four months of searching for appellant Cull, the police eventually captured him hiding in the closet of a house in Columbia, South Carolina.

At a joint trial for Smith and appellant Cull, the Commonwealth introduced the admissions of appellant Cull and co-defendant Smith to Faye Cherry and Fitzroy Lewis pursuant to the co-conspirator exception to the hearsay rule without any defense objection. Neither appellant nor co-defendant Smith testified at trial.

The first issue raised for this Court's consideration is whether co-defendant Smith's statements to Faye Cherry and Fitzroy Lewis incriminating appellant Cull were admissible against Cull. Appellant cites Bruton v. United States, 391 U.S. 123, 135-136, 88 S.Ct. 1620, 1627-28, 20 L.Ed.2d 476 (1968), for the proposition that the Confrontation Clause of the Sixth Amendment to the United States Constitution forbids the use of a non-testifying co-defendant's statements as evidence against the defendant in a criminal trial. Appellant argues that Bruton prohibits the introduction of any of his co-defendant's statements because his co-defendant chose not to take the stand at their joint trial.

In Bruton, the issue was whether statements of a co-defendant made outside the presence of the appellant to a postal inspector while the co-defendant was in jail were admissible in the appellant's and co-defendant's joint trial. The trial court admitted the third party's testimony regarding the co-defendant's statements and instructed the jury that the co-defendant's statements had to be disregarded in determining appellant's guilt. The Supreme Court of the United States, however, held that the co-defendant's out-of-court statements, secured in a police setting and outside the presence of appellant, were not admissible since admission thereof would violate the appellant's right to cross-examination under the Confrontation Clause of the Sixth Amendment. The Supreme Court emphasized that such statements were inherently unreliable and were not such that a jury could ignore them in its deliberations despite the trial court's limiting instruction.

However, two years after Bruton was decided, the Supreme Court held in Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970), that a criminal defendant's constitutionally-guaranteed right to confront an adverse witness is not violated whenever the declarations of a non-testifying co-defendant possess strong indicia of reliability. In Dutton, the trial court permitted a prosecution witness to testify (pursuant to a Georgia statute allowing the admission of statements made in concealment of...