Com. v. Gorby

• Decision Date: 21 May 1991
• Docket Number: No. 46,46
• Citation: 527 Pa. 98,588 A.2d 902
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas Jeffrey GORBY, Appellant. W.D. Appeal 1989.
• Court: Pennsylvania Supreme Court

Page 902

588 A.2d 902

527 Pa. 98

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas Jeffrey GORBY, Appellant.

No. 46 W.D. Appeal 1989.

Supreme Court of Pennsylvania.

Argued March 8, 1990.

Decided April 3, 1991.

Reargument Denied May 21, 1991.

John P. Liekar, Sr., Public Defender, Francis C. Sichko, Washington, for appellant.

John C. Pettit, Dist. Atty., William A. Johnson, Asst. Dist. Atty., Washington, for appellee.

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

OPINION OF THE COURT

CAPPY, Justice.

This is an automatic direct appeal ¹ from a death sentence imposed upon appellant by the Court of Common Pleas of Washington County following his conviction of first degree murder. Consolidated with this direct appeal are two appeals transferred from the Superior Court which raise issues related to one of the issues raised in this direct appeal. ² For the reasons that follow, we affirm the judgments of sentence and affirm the orders entered at No. 1027 of 1981.

Following a trial by jury, appellant was convicted of murder in the first degree ³ and robbery ⁴. A separate penalty hearing was held, after which the jury found two aggravating circumstances and no mitigating circumstances, thus, fixing the penalty on appellant's first degree murder conviction at death ⁵. Thereafter, the trial court heard and denied appellant's post-trial motions and imposed the sentence as decided by the jury. In addition, the trial court sentenced appellant to a consecutive term of eight to sixteen years of imprisonment on the robbery conviction. This direct appeal followed.

In each case in which the death penalty is imposed, this Court is required to conduct an independent review of the sufficiency of the evidence, even where the defendant has not challenged the conviction on that ground. ⁶ Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). So viewed, the evidence establishes the following:

On Friday, December 20, 1985, James Yeager, a friend of the victim, Drayton Sphar, telephoned Sphar and asked Sphar to pick him up at the Old Trails Inn. ⁷ Sphar arrived at the Old Trails Inn at approximately 10:00 p.m. that evening. Also present that evening at the Old Trails Inn was the appellant, Thomas Gorby.

When he arrived, Sphar was wearing a leather jacket and a chain belt with a buckle which bore his name on the back. He was also carrying a wallet which was embossed with a Harley Davidson emblem. While there, he bought several drinks for Yeager and appellant. He also bought at least one round of drinks for the entire bar that evening. Each time he bought drinks the victim displayed a large roll of bills which was particularly visible to Yeager and Gorby who were seated next to him.

After a couple hours passed, appellant asked the victim to give him a ride to the Somerset Inn so that appellant could retrieve his car which was supposedly parked in the Somerset Inn's parking lot. The Somerset Inn is located approximately six miles from the Old Trails Inn. Gorby and the victim left the Old Trails Inn somewhere between midnight and 12:30 a.m. on December 21, 1985, in Sphar's 1976 dark green, Mercury Marquis. Upon leaving, the victim assured Yeager that he would return to drive Yeager home.

At approximately 1:00 a.m. that morning, appellant arrived at the Somerset Inn bar alone. Shortly after arriving, appellant bought a round of drinks for everyone in the bar. He then went into the rest room and after returning, bought another round of drinks for everyone and wanted to again buy everyone a drink about ten minutes later. Each time he bought drinks, he displayed a roll of bills.

While at the Somerset Inn, appellant pulled a belt out of his pants similar to the one the victim was wearing earlier that evening. He placed the belt on the bar and it was passed among several of the patrons. Next, appellant gave the bartender, Harold Cain, a wallet which matched the description of the victim's wallet. Very soon thereafter, he displayed a knife stating that he wanted to show Cain how sharp it was and began shaving Cain's arm. Cain testified that while appellant was shaving the hair on his arm, he noticed blood stains on the knife.

Appellant remained at the Somerset Inn until closing, whereupon he asked Cain if Cain could drive him to the Old Trails Inn. Cain dropped appellant at the Old Trails Inn between 2:30 and 3:00 a.m. on December 21, 1985. Before leaving the Somerset Inn, Cain noticed Drayton Sphar's vehicle parked in the lot.

When appellant returned to the Old Trails Inn, he again purchased drinks for all the patrons. At that time, appellant was wearing the belt, which was later identified as belonging to the victim, wrapped around his hand. While there, appellant played pool with Nanette Leeper. Leeper noticed dried blood stains on appellant's pants and when she questioned him as to those stains, he told her that he had been gutting deer earlier that day. Appellant and Leeper left the Old Trails Inn around 4:00 a.m. Leeper last saw appellant when she dropped him off at the Eighty-Four Truck Stop shortly after 4:00 a.m. on December 21, 1985.

Appellant's girlfriend, Susan Loveland, testified that appellant called her on Friday, December 20, 1985 and asked her if she had any money. That same day, at approximately 3:00 p.m., she drove appellant to the Old Trails Inn and gave him $20.00. She did not see appellant again until 4:30 p.m., Saturday, December 21, 1985 when she met him and his mother at the corner of LeMoyne and Lockhart Streets, in Washington, Pennsylvania. Appellant's mother drove Loveland and appellant to the Howard Johnson Motor Lodge where a room was registered in Susan Loveland's name. It was in this room that appellant confessed to Loveland to killing Drayton Sphar. Appellant told Loveland that he had stabbed Sphar and then slit his throat with a knife. He told her that the killing occurred in the Somerset Inn parking lot in Sphar's car. He also told Loveland that he had taken money from Sphar. In addition, Loveland testified that appellant had Sphar's leather jacket and his belt in the room. Later in the evening, appellant placed the victim's wallet, belt and leather jacket as well as a wash cloth and one glove in a pillow case and disposed of the pillow case in a trash can located on the premises of the Howard Johnson Motor Lodge.

On Monday, December 23, 1985, John Logar, an employee of the Howard Johnson Motor Lodge, found, while emptying the trash, a pillow case containing a leather jacket, a wallet, a lighter, a belt, a pair of gloves and a wash cloth. Logar testified that after finding the belt, he tried it on and noticed that the name Drayton Sphar was embossed on the back of the buckle. Because Logar had just read in the newspaper about the murder of Drayton Sphar prior to finding the pillow case, he called the County Coroner.

Pursuant to their investigation, members of the Pennsylvania State Police questioned appellant at the home of his mother, Mrs. Betty Stevens on December 22, 1985. On December 23, 1985, the police filed a Criminal Complaint against appellant and attempted to serve him with an arrest warrant at his mother's home. When they arrived, Mrs. Stevens informed them that appellant had left her home shortly after being questioned on December 22, and that she had not seen him since.

After an extensive search, appellant was finally located in Houston, Texas, following his arrest there under an assumed name. Appellant waived extradition and returned to Pennsylvania on April 24, 1986.

Appellant contends that the evidence was insufficient to convict him of the crimes charged because it consisted only of circumstantial evidence, which, therefore, resulted in a verdict based solely on speculation.

The law is well settled that circumstantial evidence can be sufficient to convict one of a crime, including first degree murder. Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985). In testing the sufficiency of circumstantial evidence, we view it not alone, but with all the inferences and conclusions logically drawn from that evidence. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981). Of course, any verdict based wholly on inference and suspicion must be overturned. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982).

After reviewing the record, it is clear that the evidence, although circumstantial, was overwhelming to support appellant's conviction for first degree murder for killing Drayton Sphar and robbery as a result of his taking the victim's money, leather jacket, belt and wallet.

Having concluded that the evidence was sufficient to support the verdict, we shall now address appellant's particular claims of error.

Appellant first contends that the trial court erred in denying his request for a change of venue due to the allegedly extensive publicity concerning this case. He argues that the newspaper articles relating to this incident go beyond objective reporting to the point of becoming emotional and inflammatory. ⁸

The determination of whether to grant a change of venue rests within the sound discretion of the trial court whose decision thereon will not be disturbed on appeal absent an abuse of that discretion. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). In reviewing the trial court's decision, our inquiry must focus upon whether any juror formed a fixed opinion of the defendant's guilt or innocence as a result of...