Com. v. Gibbs

• Citation: 533 Pa. 539,626 A.2d 133
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Barry GIBBS, Appellant.
• Decision Date: 20 July 1993
• Court: United States State Supreme Court of Pennsylvania

Page 133

626 A.2d 133

533 Pa. 539

COMMONWEALTH of Pennsylvania, Appellee, v. Barry GIBBS, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 20, 1992.

Decided June 1, 1993.

Reargument Denied July 20, 1993.

D. Benjamin Van Steenburgh, III, Public Defender, Thomas Earl Mincer, Michael P. Gough, Asst. Public Defender, for Gibbs.

Ernest D. Preate, Jr., Atty. Gen., Andrea F. McKenna, Deputy Atty. Gen., Robert A. Graci, for Com.

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

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal from an order of the Superior Court affirming the denial by the Court of Common Pleas of Pike County of a petition of appellant, Barry Gibbs, to preclude the Commonwealth from seeking the death penalty at his second trial based on certain statutory aggravating circumstances listed in 42 Pa.C.S. § 9711(d), 403 Pa.Super. 27, 588 A.2d 13.

Gibbs was solicited by the wife of a housing development security guard to kill her husband. It is not clear whether Gibbs also agreed to kill another guard, who was the ultimate and only victim. The wife promised Gibbs, then eighteen years of age, money, a leather jacket, and a motorcycle or boat in exchange for his services. On the night of March 27, 1984, Gibbs accepted the offer. Accompanied by the wife and three others, he found the husband and the other guard in the housing development security office. Gibbs fired a shot, missing the husband but killing the other man.

On December 14, 1984, a jury convicted Gibbs of first degree murder, criminal attempt to commit homicide, criminal conspiracy to commit homicide, and aggravated assault. At the sentencing stage of the trial, the court instructed the jury on all statutory aggravating circumstances as set forth in 42 Pa.C.S. § 9711(d). The jury found as aggravating circumstances the following: peace officer; contract for pay; and, premeditated: lethal weapon. Having determined that the aggravating circumstances of the crime outweighed the mitigating circumstances, the jury returned a verdict of a sentence of death, pursuant to 42 Pa.C.S. § 9711(c)(1)(iv).

Gibbs appealed his judgment of sentence directly to this Court pursuant to 42 Pa.C.S. § 9711(h). This Court found that his confession was involuntarily given, and vacated the judgment of sentence and remanded for a new trial. Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409, cert. denied, 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 369 (1989).

At the commencement of the second trial on February 15, 1990, the Commonwealth filed a notice in which it stated its intention to seek a sentence of death based on the following aggravating circumstances: peace officer; contract killing; and grave risk of death. ¹ On March 16, 1990, the Commonwealth filed a motion seeking to add an additional aggravating circumstance, that of killing while in perpetration of a felony. ²

Gibbs filed an omnibus pre-trial motion in which he moved to preclude the death penalty based on insufficient evidence as to the Commonwealth's original three grounds at the prior trial. He also filed a motion in opposition to the Commonwealth's notice that it would seek the death penalty based partly upon the "grave risk of death to another" factor. The trial court denied Gibbs's motions and granted the Commonwealth's request to add "killing while in the perpetration of a felony" as an aggravating circumstance.

Gibbs filed a petition for review and for permission to appeal ³ and the Commonwealth then filed a motion to quash the direct appeal. The Superior Court granted Gibbs's petition and denied the Commonwealth's motion to quash, thereby determining that the order in question met the requirements for appealability. The court ruled that Gibbs's double jeopardy right was not violated by the Commonwealth's attempt to seek the death penalty on the basis of "killing while in the perpetration of a felony," and "grave risk of death to another," even though those aggravating factors were presented to, but not found by, the jury in the first trial. Also, it ruled that the trial court correctly held that the murder victim (a night watchman appointed by the Court of Common Pleas pursuant to 53 P.S. § 3704) was a "peace officer" for purposes of 42 Pa.C.S. § 9711(d)(1). It ruled, however, that the trial court erred in determining that the common law principle of transferred intent is applicable with respect to finding a "contract killing" an aggravating circumstance when the victim is not the person the killer was hired to kill. This appeal followed.

Gibbs argues that the Commonwealth should be precluded from seeking the death penalty on the basis of "killing while in the perpetration of a felony" and "grave risk of death to another" because both aggravating factors were argued but not found by the jury in the first trial. He grounds his claim on double jeopardy principles, asserting that by not finding the two statutory aggravating factors, the sentencing jury in the first trial "acquitted" him of these factors. Therefore, Gibbs claims, by submitting these grounds at the second trial, the Commonwealth violated his constitutional right not to be twice put in jeopardy.

This issue of whether a sentencer's rejection of an aggravating circumstance raises a double jeopardy bar to the consideration of that circumstance by another jury on retrial was considered and rejected by the United States Supreme Court in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). ⁴ The Supreme Court emphasized that:

Aggravating circumstances are not separate penalties or offenses, but are "standards to guide the making of [the] choice" between the alternative verdicts of death and life imprisonment.... [T]he judge's finding of any particular aggravating circumstance does not of itself "convict" a defendant (i.e. require the death penalty), and the failure to find any particular aggravating circumstance does not "acquit" a defendant (i.e., preclude the death penalty).

Poland v. Arizona, 476 U.S. at 156, 106 S.Ct. at 1755, 90 L.Ed.2d at 132-33.

The Pennsylvania death penalty statute is structured like the Arizona statute in that aggravating circumstances are standards to guide the making of the choice: if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances, then the verdict must be for the death sentence. 42 Pa.C.S. § 9711(c)(1)(iv). Following the reasoning of Poland, it is not the finding of the presence or absence of an aggravating circumstance that is dispositive of whether the defendant will receive the death penalty, but rather it is the ultimate conclusion reached after the factfinder weighs all the factors found, both aggravating and mitigating. Concluding, when a jury has imposed a death penalty in a first trial, double jeopardy does not attach no matter what aggravating circumstances were found by the jury in the first trial or what aggravating circumstances are presented to the jury in the second trial.

In Gibbs's case, the sentencing jury in the first trial returned a verdict of the death sentence. The Superior Court correctly concluded that no matter what aggravating factors that the jury considered, so long as the jury found that the presence of one or more factors weighed against other circumstances warranted the death penalty, the prosecution here is not precluded from seeking to prove any specific aggravating factors and clearly is not precluded from again seeking the death penalty.

Gibbs next argues that the Superior Court erred in concluding that the murder victim was a "peace officer" for purposes of 42 Pa.C.S. § 9711(d)(1). 42 Pa.C.S. § 9711(d)(1) provides, in pertinent part, as follows: "The victim was a ... peace officer ... who was killed in the performance of his duties." Gibbs argues that the security guard-victim was not a peace officer because section 9711(d)(1) applies only to one who falls within the definition of "peace officer" under 18 Pa.C.S. § 501, and the victim does not fall under this definition because he was employed as a security guard at a private housing development.

The victim here was a "peace officer" within the meaning of 42 Pa.C.S. § 9711(d)(1) because he was appointed as a night watchman by the Court of Common Pleas of Pike County pursuant to the Night Watchman's Act, 53 P.S. § 3704. 18 Pa.C.S. § 501 defines a "peace officer" as one who " by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests...." The Night Watchman's Act, 53 P.S. § 3704, provides as follows:

It shall be lawful for any number of persons owning or occupying real estate in any city, borough or township of this commonwealth, upon application to and with the approval of the court of quarter sessions of the proper county, to employ a night watchman or night watchmen for the purpose of protecting their premises and property in the night-time and all persons so appointed, with the approval aforesaid, as night watchman shall have, exercise and enjoy all the rights, powers and privileges, now vested by law in constables or police officers duly elected or appointed in said cities or boroughs....

According to the relevant statutes, when a security guard is properly empowered by the court of common pleas as a "night watchman," he is acting in the capacity of a "police officer" when performing his duties. Since a "police officer" is a "peace officer" within the meaning of 18 Pa.C.S. § 501, one acting in the capacity of a "police officer" (i.e., a properly empowered night watchman) is a "peace officer" for purposes of 42 Pa.C.S. § 9711(d)(1). See ...