Com. v. Gibson

• Decision Date: 22 January 1997
• Citation: 547 Pa. 71,688 A.2d 1152
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ronald GIBSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 1152

688 A.2d 1152

547 Pa. 71

COMMONWEALTH of Pennsylvania, Appellee, v. Ronald GIBSON, Appellant.

Supreme Court of Pennsylvania.

Argued May 1, 1996.

Decided Jan. 22, 1997.

[547 Pa. 80] Jay S. Gottlieb, Philadelphia, for R. Gibson.

Catherine Marshall, Thomas W. Dolgenos, Philadelphia, for the Com.

Robert Graci, Harrisburg, for Office of Attorney General.

Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

CASTILLE, Justice.

This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of Philadelphia County. ¹ Following a jury trial, appellant was convicted of two counts of first degree murder, ² two counts of criminal conspiracy, ³ and one count of robbery. ⁴ The jury determined that the three aggravating circumstances it found outweighed the one mitigating circumstance it found and returned a sentence of death. ⁵ Post-verdict motions were denied and the trial court imposed the death sentence for each murder conviction. In addition, the trial court sentenced appellant to consecutive terms of five to ten years imprisonment on each criminal conspiracy conviction and ten to twenty years imprisonment on the robbery conviction.

SUFFICIENCY OF THE EVIDENCE

Although appellant does not challenge the sufficiency of the evidence, as in all cases in which the death penalty has been imposed, this Court is required to independently undertake a review of the sufficiency of the evidence. 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). The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-34 (1986). After a review of the record, we find that the evidence is sufficient to support appellant's conviction.

The evidence presented at trial established that on December 24, 1990, appellant and two companions, Gregory Tancemore and David Greene, drove to Woody's Bar in Philadelphia, where approximately thirty other patrons were celebrating on Christmas Eve. While Greene waited in the car, appellant and Tancemore entered the bar and ordered drinks. After the bartender, Princess Pettaway, served the drinks, appellant got up and walked towards the restroom located at the rear of the bar where one of the bar's bouncers, Keith Simmons, was standing. Appellant confronted Simmons at the restroom door and pointed a .45 caliber semi-automatic handgun at Simmons' stomach. Simmons grabbed the handgun and, as appellant and Simmons struggled over the handgun, Sam Ziegler, the other bouncer for the bar, came to Simmons' aid.

While the three men were struggling over the handgun, Tancemore, who was also armed, began firing shots from the front of the bar. Appellant broke free of the two bouncers, took his handgun and joined Tancemore at the front of the bar. As the two began firing shots into the bar, Frederick Dukes, an off duty police officer who was patronizing the bar, drew his handgun. Appellant fired several shots at Officer Dukes, hitting him as well as Vernae Nixon, another patron. Appellant and Tancemore then fled the bar.

Police arrived on the scene several minutes later and transported both Officer Dukes and Nixon to the hospital in a police vehicle. Nixon, who was pronounced dead on arrival at the hospital, had been shot twice, once through the arm and once through the chest, a shot which pierced both lungs and two major arteries to the heart. Officer Dukes underwent several surgeries, but nevertheless died the next morning from his wounds. He had been shot in the right forearm and twice in the chest. One of the bullets passed through his liver and lodged in his aorta. The bullet which was recovered from Officer Dukes' body was a .45 caliber bullet.

On December 26, 1990, both Princess Pettaway and Keith Simmons separately identified appellant from photographic arrays as one of the perpetrators. ⁶ Appellant was arrested later that afternoon and, after waiving his Miranda rights, gave the police two statements. ⁷ In the first statement, appellant admitted being in the bar that night, but denied having a handgun or having fired any shots. He stated that Tancemore had carried both a nine millimeter semiautomatic weapon and a .45 caliber semi-automatic handgun but had handed appellant a .38 caliber revolver as they entered the bar. Appellant stated that Tancemore told him to follow Simmons and another man, who Tancemore said was selling cocaine, into the men's room and to detain them there at gunpoint. Appellant stated that Simmons saw his handgun and that the two struggled until Tancemore began firing shots from the front of the bar. When appellant reached the front of the bar, Tancemore told him to "get the money." Appellant claimed that Tancemore fired all of the shots.

However, during a break in the interview, police were informed that a .45 caliber handgun had been found in Greene's apartment and that Greene claimed that appellant had given him that handgun for safekeeping. When appellant was confronted with that information, he admitted that the .45 caliber handgun was his and that he had taken it to the bar on the night of the murders and subsequently hidden it at Greene's apartment. He stated that after struggling with Simmons, he went to the front of the bar and saw Officer Dukes draw his handgun. Appellant stated that he then fired three shots at Officer Dukes before fleeing the bar.

At trial, appellant testified on his own behalf that he, Tancemore and Greene had gone to a bar on Christmas Eve. He further testified that he had in his possession a .38 caliber handgun which he carried at all times for protection because he dealt illegal drugs. He stated that he and two other men in the bar struggled over his firearm near the restroom. However, appellant denied having fired any shots in the bar or having intended to commit a robbery. Rather, he claimed that Tancemore and Greene had begun firing shots while appellant and the other men were struggling over appellant's handgun.

Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was done with deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). Specific intent to kill can be inferred by the use of a deadly weapon upon a vital part of the body. Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972). Furthermore, all co-conspirators to a murder can be found guilty of first degree murder, regardless of who actually inflicted the wound which resulted in death. Commonwealth v. Jones, 542 Pa. 464, 484, 668 A.2d 491, 500 (1995), citing Commonwealth v. Joseph, 451 Pa. 440, 449, 304 A.2d 163, 168 (1973).

Here, the evidence the Commonwealth presented sufficiently established that appellant and a co-conspirator went to a crowded bar with the intention of committing a robbery and fired numerous shots into the crowd, killing two patrons as the result of gun shot wounds to vital parts of their bodies. Such evidence clearly demonstrated that the killings were committed with the malice aforethought sufficient to sustain appellant's convictions for first degree murder. Hence, no relief is warranted on this issue.

JURY SELECTION

1. Batson Claim

Appellant's first allegation of error is that the Commonwealth violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using its peremptory challenges to exclude all black prospective jurors from the final jury panel. In order to establish a prima facie case on a Batson claim defendant must make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury. Commonwealth v. Simmons, 541 Pa. 211, 231-32, 662 A.2d 621, 631 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996), citing, Commonwealth v. Spence, 534 Pa. 233, 246, 627 A.2d 1176, 1182-83 (1993).

At the outset, appellant contends that the trial court found a prima facie case of discriminatory exercise of peremptory challenges by the prosecutor. However, a review of the record demonstrates that, although appellant twice raised a Batson claim, the trial court found on both occasions that appellant had failed to make out a prima facie case, and therefore did not require the Commonwealth to explain the exercise of its peremptory strikes. N.T. 9/27/91 at 96-98; N.T. 10/1/91 at 114. ⁸

Furthermore, the record does not indicate the racial composition of the venire, the race of the venirepersons against whom appellant exercised his peremptory strikes or the final racial composition of the jury. Thus, the record does not support appellant's contention that he was tried by a jury violative of the Batson rule. The record does demonstrate, however, that at the time the Commonwealth used its eleventh peremptory strike, it had used only seven strikes against black venirepersons, one of which appellant conceded was race-neutral. N.T. 9/26/91 at 97; 10/1/91 at 114. This Court has held that the use of ten to twelve peremptory strikes against black venirepersons does not in itself establish a prima facie case of discrimination. Commonwealth v. Wilson, 538 Pa. 485, 500-01, 649 A.2d 435, 443 (1994), cert. denied, --- U.S. ----, 116 S.Ct. 145, 133 L.Ed.2d 91 (1995). Therefore, absent additional evidence of discrimination, appellant has failed to establish a...