Com. v. Douglas

Decision Date03 August 1994
Citation537 Pa. 588,645 A.2d 226
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Robert DOUGLAS, Appellant.
CourtPennsylvania Supreme Court




On January 20, 1983, a jury of the Court of Common Pleas of Philadelphia County found appellant, Robert Douglas, guilty of murder of the first degree 1, aggravated assault 2, and possession of an instrument of crime 3. Following these convictions, a separate sentencing hearing was held pursuant to 42 Pa.C.S. § 9711(a). The jury subsequently found the existence of two aggravating circumstances 4 and no mitigating circumstances and sentenced appellant to death.

Post-trial motions were filed and the trial court ordered an en banc hearing on the motions. The court en banc found appellant's trial counsel ineffective for permitting the testimony of a probation officer which implied that appellant was involved in prior criminal conduct, and granted appellant a new trial. On appeal by the Commonwealth, the Superior Court reversed the trial court's decision, and remanded the case for a determination of appellant's remaining post-trial motions which had not been considered, 396 Pa.Super. 653, 570 A.2d 1086. Appellant now brings the present appeal. We affirm the holding of the Superior Court, and remand the case for consideration of the remaining issues raised in appellant's post-trial motions. 5

The facts giving rise to this case are as follows: At approximately 3 a.m. on August 28, 1980, the victim, Donald Knight, and Michael McLaurin were sitting on the benches in the courtyard of the Raymond Rosen Housing Project in Philadelphia when they were approached by appellant who asked them for money. Knight and McLaurin responded that they had none and appellant left the scene. Appellant returned a few minutes later with a handgun and stated, "If you don't got no money, get out of here." Appellant then shot Knight twice killing him. McLaurin, meanwhile, reached for the gun but was shot by appellant in the upper and lower arm. After being shot, McLaurin was able to escape and flag down a passing police vehicle. Since he knew appellant well, he was able to give the officers appellant's name and address.

The officers, however, were unable to find appellant and he remained at large for nearly a year after the shooting. During this time the police encountered appellant on three separate occasions, but each time appellant was able to escape by threatening the officers with either a sawed-off shotgun or a handgun. In addition, on one occasion four days after Donald Knight's funeral, Knight's mother, Mildred Knight, encountered appellant on the street. Appellant taunted her, saying "I just killed Donald," and "you will be next." (Notes of Trial Testimony (N.T.T.), 1/14/83, at pp. 249, 289).

Appellant was ultimately apprehended and the case proceeded to a jury trial before the Honorable Marvin R. Halbert. At the time of trial, McLaurin could not be located and was determined to be unavailable. The Commonwealth, however, was able to introduce his preliminary hearing testimony in which he identified appellant as Donald Knight's killer. In addition, the Commonwealth introduced the testimony of the victim's mother and of two police officers who stated that following the shooting, appellant was chased twice on foot and in an automobile and that on each occasion, he brandished a weapon at his pursuers.

The only evidence presented by the defense was the testimony of appellant's probation officer, Norman Gay. Mr. Gay testified as follows:

Q. Good Morning, Mr. Gay

A. Good Morning.

Q. You [sic] state again who you are employed with please, or by?

A. Adult Probation Department, Gang Control Unit.

Q. How long have you been--that's for the City of Philadelphia; is that correct?

A. That's correct.

Q. How long have you worked for the Probation Department?

A. Approximately six years.

Q. Do you know the defendant Robert Douglas?

A. Yes, I do.

Q. How do you know him?

A. I was Robert Douglas' probation officer from approximately 6/28/77 until present.

Q. Do you remember or does your record reflect the charges that placed the defendant on probation?

A. You are speaking about his initial probation?

(N.T.T., January 18, 1983, pp. 490-491).

At this point the trial court interrupted the questioning and called counsel to sidebar. The court then inquired as to the purpose of this line of questioning. Defense Counsel replied that he wished to demonstrate that Douglas was "amenable to probation and that the death penalty was not warranted ..." (N.T.T., 1/18/83, p. 492). The trial court advised defense counsel that such evidence was irrelevant at that point in the proceedings and would only become relevant at the sentencing phase of the trial if appellant were convicted of first degree murder. Defense counsel, however, noted that he felt he had an inference to overcome and went on to advise the court as follows:

Mr. Quinn: They have heard testimony from police officers that there was a gun chase. Franklin Morris testified to that, so this isn't his only case. I weighed that particular factor when I did this and made this decision. I'm not saying that there is an inference going to be drawn, but I think they have those inferences already.

If you say that I must hold it, then I will withdraw it and go no further and ask it be stricken then.

(N.T.T., 1/18/83, pp. 494-495).

The trial court then determined that this line of questioning was improper and advised the jury to disregard both the question and the answer. When questioning continued, counsel proceeded as follows:

Q. During your supervision of the defendant (appellant) approximately how long or how often did you see him?

(N.T.T., 1/18/83, p. 496). The court once again interrupted counsel and instructed the jury to disregard the question and the answer. 6 Defense counsel then ceased his questioning and dismissed the witness.

Following his conviction, appellant filed post-verdict motions alleging, inter alia, that this line of questioning had constituted ineffective assistance of counsel since it placed evidence of prior criminal activity before the jury, i.e., that he was on probation as the result of a conviction of another crime. An evidentiary hearing was held before the trial court en banc. Appellant presented no evidence at the hearing. The Commonwealth, in turn, presented the testimony of appellant's trial counsel, who testified as follows:

Q. Why did you call Mr. Gay, the probation officer of the Defendant Robert Douglas?

A. At the time--I'm trying to recall all of the circumstances--I felt that on the basis of the testimony that was presented by the prosecution throughout the trial, it was to a degree insurmountable. On the basis of it I had subpoenaed approximately six or seven witnesses to testify on the defendant's behalf at the time he was to present the defense. Of the six or seven witnesses, two actually accepted the subpoenas that I had served, the other ones either refused or there was no address that I was provided with. So as a result, I had no witnesses on behalf of the defendant on the day I was to present my defense. The only person available was Mr. Norman Gay, the probation officer. At the time what I intended to show was--the incident occurred in August, as I recall.

Q. That would be August of '82?

A. '82.

Q. '81?

A. '81.

Judge Halbert: 81

Mr. Quinn: '81. Subsequent to the incident occurring in August, the defendant (appellant) had reported on a regular basis to Mr. Gay in September and most of October of--

Judge Kubacki:

If I may interrupt. You're not answering the question. During this trial you asked, "Do you know the defendant Robert Douglas?" He said, "Yes, I do. How do you know him? I was Robert Douglas' probation officer from approximately 6-28-77 until the present." You asked, "Do yo [sic] remembered [sic] or does your record reflect the charges that placed the defendant on probation?" He answered, "you are speaking about his initial probation?" the court in dismay interrupts at that point. Why?

Mr. Quinn: I was attempting to show that someone who would be on probation and committed the alleged crime that he was charged with in August would not have continued to report to his probation officer on a regular basis after that period of time. I felt that by introducing testimony of that nature I could mitigate that prior testimony that was presented by the prosecution throughout the trial.

Judge Kubacki: Continue.

By Mr. Williams:

Q. Now, you do recall that the Commonwealth had put on numerous police officers who testified to flight on behalf of the defendant Robert Douglas?

A. Yes.

Q. Chasing him through North Philadelphia, jumping fences, that sort of stuff?

A. Yes.

Q. Was that evidence you sought to rebut with this reporting to his probation officer?

A. That was part of it. Also the mens rea of intent to commit the homicide. Because if a person would have done that, why would he continue to report to his probation officer?

Q. Flight is an indicia of guilt; is that correct?

A. Correct.

Q. In other words as you recall, Mr. Norman Gay was not permitted to testify that the defendant had been reporting, is that right, that he had continued to see him, he did not testify to that?

A. No, he did not.

Q. And do you also recall that the jury who heard this case never knew what the defendant was on probation for?

A. As far as I recall they did not or they did not.

Q. They didn't hear it in this courtroom, it's not on this record; is that right?

A. That's right.

(N.T.T., June 1, 1987, pp. 14-16).

The en banc panel of the Court of Common Pleas found that, because at the time of appellant's...

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