Com. v. Fisher

• Decision Date: 06 September 1996
• Citation: 681 A.2d 130,545 Pa. 233
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert FISHER, Appellant.
• Court: Pennsylvania Supreme Court

Page 130

681 A.2d 130

545 Pa. 233

COMMONWEALTH of Pennsylvania, Appellee, v. Robert FISHER, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 28, 1993.

Reargued Jan. 22, 1996.

Decided June 25, 1996.

Reargument Denied Sept. 6, 1996.

[545 Pa. 241] David R. DeStefano, Joseph Hylan, Norristown, for Robert Fisher.

Bruce L. Castor, Patricia E. Coonahan, Norristown, Robert A. Graci, Office of Atty. Gen., for Com.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

ZAPPALA, Justice.

We have before us an automatic direct appeal from the judgment of sentence of death imposed upon Appellant, Robert Fisher, by the Court of Common Pleas of Montgomery County, Criminal Division. ¹ For the following reasons, we affirm the conviction of murder in the first degree, but vacate the judgment of sentence of death and remand for a new sentencing hearing. The relevant facts of this case are as follows.

In the month preceding her murder, Linda Rowden, the victim in the instant matter, had been in contact with the Norristown police. Rowden had complained that her boyfriend, the Appellant, had been harassing her regarding her earlier statements to the police in response to their investigation of the murder of Nigel Anderson. The police had questioned Appellant regarding the Anderson murder case. ²

On July 10, 1980, Rowden was driving her car at a slow rate of speed on Dekalb Street, in Montgomery County. Richard Mayo was seated in the front passenger seat, and Appellant was seated in the backseat. It was daylight, and the windows of the car were down. According to eyewitnesses, Appellant leaned forward and shot the driver, Linda Rowden, twice with a revolver.

The victim slumped forward and her vehicle, uncontrolled, swerved to the right and crashed into parked cars on DeKalb Street. Appellant exited the rear door of the vehicle and walked hastily down an intersecting street with a pistol in his hand. Mayo exited the right front passenger door, yelled for help, went to an emergency telephone and called the police. Subsequent forensic tests and an autopsy performed on the victim confirmed that the victim died of the gunshot wounds.

Immediately following the shooting, Appellant went to Denise Walker's apartment. He told Walker that he had just shot the victim because she "was running her face to the detectives." ³ Appellant changed clothes, told Walker that he was leaving town, and fled the area shortly thereafter. A subsequent search of Walker's apartment uncovered a set of Appellant's clothes and a box of unused bullets. Six of the eight remaining bullets were found to be analytically indistinguishable from the bullets retrieved from the victim's body. Appellant was not apprehended until the fall of 1987 in New York City. Following extradition proceedings in New York, he was returned to Pennsylvania.

In 1988, Appellant was tried and convicted of first degree murder. Following his conviction, Appellant was sentenced to death. On direct appeal, this Court vacated the conviction and the matter was remanded for a new trial. Appellant was retried in August of 1991, and was convicted of first degree murder. The jury found that the aggravating circumstances outweighed the mitigating circumstances and Appellant was sentenced to death. This appeal follows.

Although Appellant does not argue that the evidence was insufficient to convict him of murder in the first degree, under Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27, n. 3, 454 A.2d 937, 942, n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983), this Court is mandated to conduct an independent review of the sufficiency of the evidence and determine whether the evidence presented was sufficient to support the jury's verdict. The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could have determined all elements of the crime to have been established. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). The evidence as described above is more than sufficient to support a first degree murder conviction. Mayo, who was seated in the front seat of the vehicle, directly beside the victim, testified that he observed Appellant shoot the victim. Several other eyewitnesses testified that they observed Appellant quickly leave the crime scene carrying a revolver. Walker testified that Appellant admitted shooting the victim immediately following the event. Appellant himself evidenced his guilt by immediately fleeing the Philadelphia area. Forensic and ballistic reports corroborated all of the eyewitness testimony. A person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes the death of another human being. 18 Pa.C.S.A. § 2501(a). The Crimes Code defines murder of the first degree as "a criminal homicide ... committed by an intentional killing," i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S.A. § 2502(a) and (d). The evidence adduced at trial was clearly sufficient to support the jury's verdict of guilt of murder of the first degree.

Appellant asserts a total of thirty separate issues for our review. ⁴ First, Appellant asserts that the trial judge erred in not recusing himself. Appellant argues that the trial judge was incapable of remaining objective and unbiased in light of its participation in Appellant's first conviction in Fisher I. This argument fails. Recusal is required whenever there is substantial doubt as to a jurist's ability to preside impartially. Code of Judicial Conduct, Canon 3, subd. C(1)(a); Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). Before the trial commenced, the trial court entered an order which clearly set forth that if Appellant chose a bench trial or entered a guilty plea, the court would recuse itself; but if Appellant demanded a jury trial, the court would not recuse itself. The court stated clearly that if a jury trial was demanded, the jury would decide all issues of fact, and that the court was able to set aside anything that was adduced at the previous trial and had no preconceived ideas concerning the second trial. Further, a reading of the trial court opinions in both Fisher I and Fisher II illustrate that the court's rulings were based on the appropriate application of legal principles and not improper personal opinion or bias of the trial judge. If a judge rules that he or she can hear and dispose of the case fairly and without prejudice, that decision will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990). There was no abuse of discretion.

Next, Appellant alleges that the trial court erred by failing to dismiss the charges against Appellant under Pa.R.Crim.P., Rule 1100. Appellant points to the eight year period between July 11, 1980, when the Commonwealth filed a criminal complaint against Appellant, and July 18, 1988, when his trial commenced. However, Appellant was arrested in the Fall of 1987, in New York City where he had been hiding out since the 1980 murder.

Rule 1100(c)(3)(i) provides as follows:

"(c) In determining the period for commencement of trial, there should be excluded therefrom: (3) such period of delay at any stage of the proceedings as results from: (i) the unavailability of the defendant...."

Accordingly, under Rule 1100(c)(3)(i), that portion of the delay which can be attributed to Appellant's seven year absence from the Commonwealth is excludable. Appellant insists that the Commonwealth must show that it exercised due diligence in its efforts before it may take advantage of a Rule 1100(c) exclusion. However, the due diligence requirement "does not demand perfect vigilance and punctilious care, but rather a reasonable effort." Commonwealth v. Polsky, 493 Pa. 402, 407, 426 A.2d 610, 613 (1981). "Common sense, the public interest, and justice demand that a defendant not be permitted the windfall of an absolute dismissal underRule 1100 when he voluntarily absents himself from the jurisdiction, refuses to return, and due diligence by law enforcement authorities fails to secure his return." Polsky 493 Pa. at 407-08, 426 A.2d at 613. A review of the record reveals that local police authorities continued reasonable efforts to apprehend Appellant throughout his eight year absence. Local authorities submitted his name and description to a national wanted persons list, set up a stake-out upon reports that Appellant was returning to the area, followed up leads, and continued to interview witnesses, friends and families regarding the murder and Appellant's possible whereabouts. The authorities exercised due diligence, and thus, there was no error.

Next, Appellant contends that the trial court erred by refusing to suppress physical evidence discovered by police officers during a search pursuant to a warrant at Appellant's apartment immediately following the shooting. Appellant contends that the affidavit of probable cause did not support a finding of probable cause, in that Appellant's criminal "street activity", if any, did not bear a "substantial nexus" to Appellant's residence, citing Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985). However, the affidavit sets forth the following pertinent facts: Rowden had been shot; witnesses to the shooting saw Appellant leave Rowden's car holding a pistol and wearing a white shirt; officers had reliable information that Appellant had been living at the specified address, and that shortly after the shooting Appellant had been seen entering the apartment wearing a white shirt and then shortly thereafter leaving the apartment wearing a burgundy colored shirt; Appellant was still at large and the weapon used in the...