Com v. D'Amato

• Decision Date: 22 May 1987
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Carmen D'AMATO, Appellant. 117 E.D. 1984
• Court: Pennsylvania Supreme Court

Page 300

526 A.2d 300

514 Pa. 471

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Carmen D'AMATO, Appellant.

117 E.D. 1984

Supreme Court of Pennsylvania.

Argued April 6, 1987.

Decided May 22, 1987.

[514 Pa. 475] Daniel M. Preminger, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Division, Alan Sacks, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.

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

OPINION OF THE COURT

LARSEN, Justice.

Joseph Carmen D'Amato, appellant, was convicted by a jury of murder of the first degree and sentenced by that jury to death. He now brings a direct appeal to this Court ¹ challenging the determination by the suppression court that his confession was admissible at trial, asserting that he was denied a fair trial due to certain allegedly improper remarks by the prosecutor, and claiming that he was denied the effective assistance of trial counsel. We affirm the conviction and the judgment of sentence of death. The record discloses the following.

Several residents living in or near the 2800 block of South Sydenham Street in South Philadelphia heard two gunshots (some of the residents thought they heard firecrackers) shortly after 10:00 p.m. on March 19, 1981. One of the residents, a former Philadelphia police officer, looked out from the rear of his house and observed a yellow or beige two-door coupe automobile in a parking lot across the back alley. He observed a white male "staggering, trying to flee the area, [who] looked as if he'd been injured." Notes of Testimony (N.T.), Trial February 1, 1983 at 52. Another resident heard the injured man, Anthony Petrone, exclaim "Oh my god--I'm shot. I'm shot." N.T. Trial January 31, 1983, at 98-99. The ex-police officer also observed two white males entering on either side of the car and watched as the car left the parking lot with its lights out and sped away. Other residents observed a yellow or beige or light brown midsize car, possibly an Oldsmobile or a Pontiac, exiting the parking lot and the alley with its lights out and two males in the car. Some witnesses heard a loud scraping sound, as of metal scraping against stone.

A Philadelphia police officer, who also lived in the 2800 block of South Sydenham, heard the gunshots at 10:05 p.m. and was the first to reach the victim, who was bleeding from a bullet hole in his right cheek. At this point, the victim was badly injured, and was thrashing about, speaking and screaming incoherently. The officer attempted to find out the name of his assailant, but the only intelligible word that the officer could understand was the word "Al." The victim was taken to nearby Methodist Hospital where he was pronounced dead at 12:20 a.m. the following morning. The cause of death was multiple gunshot wounds to the cheek and head, and to the left side of the front of his chest. He was also wounded in his hand (in an apparent unsuccessful attempt to protect his face). The cause of the wounds were two .38/.357 caliber bullets ² that were probably fired from two different barrels, according to the Commonwealth's ballistics expert. No murder weapon was ever found.

Appellant became the chief suspect in another homicide, the shooting death of Anthony Bonaventura in Philadelphia on March 18, 1981, and an arrest warrant for that homicide was issued for appellant on April 7, 1981. Shortly thereafter, following investigation, Philadelphia police requested and obtained the issuance of a Federal Bureau of Investigation fugitive warrant on a charge of unlawful flight to avoid prosecution. On December 8, 1981, appellant and his girlfriend, Bernadette McFarland, were apprehended by F.B.I. agents in Newton Falls, Ohio, near Youngstown. Philadelphia police were notified of appellant's arrest and Detectives Michael Chitwood, Philip Checchia and Sergeant Daniel Rosenstein left Philadelphia by car that evening, arriving in Youngstown at approximately 2:30 a.m. on December 9, 1981.

The Philadelphia officers first saw appellant at about 11:50 a.m. later that morning at appellant's hearing in Akron before a United States Magistrate on the federal fugitive warrant. At this hearing, appellant was advised by the magistrate of the charges against him, of his rights to remain silent and to counsel, and of his right to post bail to obtain his release. Following this arraignment hearing, appellant spoke with Sergeant Rosenstein regarding extradition, and agreed to waive extradition and return to Philadelphia. A state court proceeding was then held at the Barberton, Ohio courthouse, at which appellant was advised by the presiding judge of his right to contest extradition. After executing a waiver of extradition form, appellant was turned over to the custody of the Philadelphia police officers and returned to Mahoning County Jail in Youngstown for the night. The following morning, December 10, 1981 at about 6:30 a.m., appellant and Ms. McFarland were picked up and transported by the Philadelphia police officers together to Philadelphia, arriving at the Philadelphia police administration building at 1:57 p.m.

While at the administration building, appellant gave three separate written confessions, preceded in each instance by Miranda warnings, ³ to three homicides in the Philadelphia area. Between 3:45 p.m. and 4:50 p.m., appellant confessed to the murder of John Amato in February, 1981; from 5:01 p.m. to 6:05 p.m., appellant confessed to the murder of Anthony Petrone; and from 6:06 p.m. to 7:25 p.m., appellant confessed to the murder of Anthony Bonaventura. ⁴

Regarding Anthony Petrone (the victim herein) appellant stated that he had seen the victim at a restaurant known as Cozy's at 16th and Ritner Streets. Appellant was alone eating dinner when the victim came up to appellant and asked him if he was still interested in an insurance fraud scheme involving stealing and "cutting up" appellant's girlfriend's (Ms. McFarland's) car, a 1979 yellow two-door Oldsmobile Cutlass. Appellant suggested the two go for a ride to talk about it as the restaurant was crowded. They left the restaurant and drove off in Ms. McFarland's car, driving to a parking lot nearby.

In the parking lot, appellant (who said he had taken quaaludes that evening) became suspicious that the victim was "setting him up" for the killing of John Amato, and told Anthony Petrone to get out of the car. Appellant "got mad and crazy," walked around to the victim, pulled a two-shot .38 caliber Derringer (with two "over-under" barrels) from his coat pocket, and shot the victim twice at close range. Appellant stated that he had been alone when he shot Anthony Petrone.

Appellant was arraigned at 7:33 p.m. on December 10, 1981 before a judge of the Municipal Court of Philadelphia.

Pre-trial motions to suppress appellant's confessions and to suppress evidence seized during several searches conducted by law enforcement officers in Philadelphia and Ohio were filed, and a hearing was held on June 7, 1982. Following argument, Judge Murphy of the Court of Common Pleas of Philadelphia County, denied appellant's pre-trial motions on June 17, 1982.

After extensive voir dire proceedings beginning January 18, 1983, trial commenced on January 31, 1983. Appellant's confession was, understandably, the critical and most damaging evidence introduced at trial. The confession was corroborated by the witnesses from the 2800 block of South Sydenham area (who observed a car matching the description of Ms. McFarland's car leaving the parking lot), by witnesses who had seen both the victim and appellant at Cozy's Restaurant on the evening of March 19, 1981 (although they had not been observed together), and by William Boyle who testified that he gave appellant a .38 caliber Derringer earlier that day (which he later that day reported as stolen to the police). In defense, appellant attempted to demonstrate to the jury that his confession of December 10, 1981 was involuntary because the Philadelphia police officers threatened to prosecute members of appellant's family for aiding and abetting appellant's escape unless appellant gave a confession.

On February 8, 1983, the jury returned a verdict of guilty of murder of the first degree. A sentencing proceeding was conducted the following day pursuant to section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711, and the same jury sentenced appellant to death based on its finding of one aggravating circumstance (that appellant had been convicted of another offense, the murder of John Amato, for which a sentence of life imprisonment had been imposed, 42 Pa.C.S.A. § 9711(d)(10)) and no mitigating circumstances.

Post-verdict motions were denied and appellant was formally sentenced on July 25, 1984. This automatic appeal, in which appellant is represented by new counsel, was then filed.

Initially, although appellant does not challenge the sufficiency of the evidence, we hold that the evidence is clearly sufficient beyond a reasonable doubt to sustain his conviction for murder of the first degree for the willful, intentional slaying of Anthony Petrone. ⁵ We proceed, therefore, to appellant's allegations in support of his request for the granting of a new trial.

Appellant first contends that the lower court erred in denying his motion to suppress his confession which appellant alleges was involuntary and obtained as a result of unnecessary delay between arrest and arraignment in violation of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and our rules of criminal procedure. We reject this contention.

An accused may, of course, relinquish his constitutional right to remain silent. The waiver of that right must be knowing, intelligent and voluntary. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A confession given as a result of custodial interrogation is admissible only if the accused's Miranda...