Com. v. Dick

• Decision Date: 18 August 2009
• Docket Number: No. 548 CAP.,548 CAP.
• Citation: 978 A.2d 956
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. Anthony J. DICK, Appellant.
• Court: Pennsylvania Supreme Court

978 A.2d 956

COMMONWEALTH OF PENNSYLVANIA, Appellee v. Anthony J. DICK, Appellant.

No. 548 CAP.

Supreme Court of Pennsylvania.

Submitted October 23, 2008.

Decided August 18, 2009.

Appeal No. 548 CAP from the Judgment of Sentence entered on 08/22/2007 in the Court of Common Pleas, Criminal Division of Columbia County at No. CP-19-CR-0000188-2006, Thomas A. James, Jr., J.

Hugh L. Sumner, Esq., Caroline Roberto, Esq., Columbia County Public Defender's Office, Berwick, for Anthony Dick, J.

Amy Zapp, Esq., Kelley Lynn Nelson, Esq., PA Office of Attorney General; Gary Eugene Norton, Esq., Columbia County District Attorney's Office, for Commonwealth of Pennsylvania.

CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Justice EAKIN.

This is a direct appeal from a death sentence imposed following appellant's conviction on two counts of first degree murder.¹ Appellant pled guilty to killing his two children and waived his right to a penalty phase jury and to presentation of mitigating evidence. At the penalty phase, the trial court found three aggravating circumstances and no mitigating circumstances, and sentenced appellant to death. Appellant did not appeal until after the appeals period had lapsed; this case is now before this Court upon automatic review pursuant to 42 Pa.C.S. § 9711(h)(1).² We affirm the convictions of first degree murder and the sentence of death.

Appellant was living in Room 31 of the Stone Castle Motel with his wife, Betty, 19-month-old son, James, and four-year-old stepson, Creed Vincent. In the early morning hours of January 24, 2006, appellant was watching television and drinking beer as the rest of the family slept.³ Seemingly unprovoked, appellant retrieved a .22 caliber handgun and shot each of his family members twice — once in the head and once in the chest or back. Appellant then turned the gun on himself and shot himself in the stomach.

The two children died instantaneously, but Betty Dick miraculously survived. Upon waking, she was unaware of her injuries, but had trouble breathing and seeing. She called out for her husband, who told her to let him die. Unable to find the telephone, she felt her way out of the hotel room and over to the adjacent room. The neighbor called an ambulance, and police arrived shortly thereafter.

Appellant waived his Miranda⁴ rights and confessed to police that he shot his wife and two children while they slept. He told police he had thought about killing his family for months, he was not sorry for what he had done, and he felt "absolutely nothing" when he pulled the trigger. Upon being told his wife survived, he stated he wished she had died.⁵ Appellant further stated he meant to plead guilty and hoped to be executed for his crimes. Appellant was charged with two counts of first degree murder, attempted murder, and aggravated assault.⁶

On August 22 and 23, 2007, a plea and sentencing hearing was held. Prior to the plea phase, Dr. Richard Fishbein, an adult geriatric and forensic psychiatrist, presented his examination report of appellant. Dr. Fishbein opined, within a reasonable degree of medical certainty, that appellant had a low intelligence quotient and a schitzoid personality, but was competent to fully participate in and understand the trial proceedings. Appellant testified he had the ability to participate in and understand the proceedings; the defense and prosecuting attorneys also agreed appellant was competent to stand trial. Following thorough discussion with Dr. Fishbein and appellant, the trial court found appellant competent to participate in the proceedings.

During the plea phase of the hearing, appellant waived his right to a jury trial, and pled guilty to all charges, telling the court he shot each of his family members twice with the intent to kill them, and that he had thought about killing them for some time. Following an extensive colloquy, the trial court accepted the plea as knowingly, intelligently, and voluntarily entered.

Appellant stated he wished to proceed directly to sentencing, and waived his right to a jury at the penalty phase, orally and in writing. Following another lengthy colloquy, the trial court accepted the waiver as knowing, intelligent, and voluntary; the waiver was certified by defense counsel, the deputy attorney general, and the trial court. Despite being informed by the trial court that failure to present mitigating evidence would likely result in a death sentence, appellant waived his right to present mitigating evidence at the penalty phase.⁷ Following another extensive colloquy, the trial court found the waiver to be knowingly, intelligently, and voluntarily made.

During the penalty phase, the Commonwealth called a number of witnesses who attested to the nature of appellant's actions. Among the witnesses were the police officers who were on duty the night of the incident; they testified about the crime scene, the victims' conditions, and appellant's confessions. Trooper Elwood Spencer, a firearms expert, testified the .22 caliber handgun found at the scene could fire a bullet with sufficient velocity and mass to penetrate a human being. Dr. Samuel Land, an expert in forensic pathology, testified that both Creed Vincent and James Dick died of intermediate range gunshot wounds to the head and chest. He stated the chest wounds were fatal, and each child would have died within seconds to minutes with those wounds alone; however, due to the shots to the head, their deaths were likely immediate.

Betty Dick also testified, corroborating the officers' testimony and appellant's confessions. Betty remains permanently disabled as a result of the gunshot wounds she sustained. She has no peripheral vision in her left eye, suffers chronic headaches, and will require continued treatment for symptoms associated with her injuries — including the eventual installation of a metal plate in her head. Dr. Joseph Williams, the neurological surgeon who performed surgery on Betty, stated bone fragments still remain in her skull, and a bullet still resides in her chest. He indicated these defects could cause additional problems in the future, including seizures, lung function problems, and pulmonary disease.

After reviewing the Commonwealth's evidence, the trial court found three aggravating circumstances: (1) during the commission of the offense, appellant knowingly created a grave risk of death to another person in addition to the victim, 42 Pa.C.S. § 9711(d)(7); (2) appellant was convicted of another murder committed in any jurisdiction before or at the time of the offense, id., § 9711(d)(11); and (3) the victim was a child under 12 years of age, id., § 9711(d)(16). The court found no mitigating circumstances and accordingly sentenced appellant to death.

Initially, appellant indicated he did not wish to appeal his sentence. However, after the appeal filing date lapsed, appellant notified post-trial counsel of his desire to appeal. A motion to allow appeal nunc pro tunc and a petition to allow filing of post-sentence motions nunc pro tunc were filed with this Court; each were denied.

In all cases in which the death penalty is imposed, this Court has an obligation to review the record to ensure the evidence sufficiently supports the first degree murder conviction and the finding of aggravating circumstances, and that the sentence was not the product of passion, prejudice, or other arbitrary factors. 42 Pa.C.S. § 9711(h)(3)(i),(ii); see also Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 68 (2008) ("In all death penalty direct appeals . . . this Court reviews the evidence to ensure that it is sufficient to support the conviction or convictions of first-degree murder.").

Appellant raises four additional claims in his brief:

1. The trial court erred by imposing the death penalty because the Commonwealth did not establish the elements necessary to sustain a conviction of first degree murder.

2. Appellant's plea was not entered knowingly, voluntarily, and/or intelligently.

3. Appellant was not competent or did not have sufficient mental capacity to enter a guilty plea to murder and/or to waive his right to present mitigating evidence in the penalty phase.

4. Appellant's refusal to present mitigating evidence is analogous to a stipulation of death and is therefore unconstitutional.

However, as appellant did not timely file his appeal, any claims unassociated with the statutorily-mandated review of the sufficiency of the evidence have not been previously raised or preserved for appeal, and thus are not properly before this Court. We have already considered and denied appellant's requests for nunc pro tunc relief, and relaxed waiver no longer applies in capital appeals. See Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 402 (2003) (claims not properly raised and preserved in trial court are waived and unreviewable on capital direct appeals).⁸ Therefore, we will not consider appellant's additional claims, and our review consists only of an independent evaluation of whether sufficient evidence exists to support appellant's first degree murder convictions.

In reviewing the sufficiency of the evidence, we must determine whether the evidence at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all elements of the offense beyond a reasonable doubt. Baumhammers, at 68; Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 864 (2000).

A person is guilty of first degree murder where the Commonwealth proves: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. See 18 Pa.C.S. § 2502(a); Baumhammers, at 68 (quoting Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 651-52 (2008)). Intentional killing is a "[k]illing by means of poison, or by lying in wait, or by any other kind of...