Com. v. Graham

• Decision Date: 18 July 1995
• Citation: 661 A.2d 1367,541 Pa. 173
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Harrison GRAHAM, Appellant.
• Court: Pennsylvania Supreme Court

Page 1367

661 A.2d 1367

541 Pa. 173

COMMONWEALTH of Pennsylvania, Appellee, v. Harrison GRAHAM, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 26, 1995.

Decided July 18, 1995.

[541 Pa. 176] Joel S. Moldovsky, Philadelphia, for Harrison Graham.

Catherine Marshall, Ronald Eisenberg, Hugh J. Burns, Jr., Philadelphia, for Com.

Robert A. Graci, Harrisburg, for Atty. Gens. Office.

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

OPINION

ZAPPALA, Justice.

Harrison Graham was tried non-jury and found guilty on seven counts of first degree murder, 18 Pa.C.S. § 2502, and seven counts of abuse of corpse, 18 Pa.C.S. § 5510. Pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h), this is an automatic direct appeal of judgments of sentence of death, which were imposed for six of the murder convictions.

The initial issue to be resolved is whether the Court need address any substantive matters in light of the fact that Graham has expressed his desire that no appeal be litigated. Indeed, he has filed a Petition to Dismiss the appeal.

Graham concedes that this Court has held that we are required by statute to review all cases in which the death penalty has been imposed. See 42 Pa.C.S. § 9711(h); Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991); and Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1989). He argues, however, that this does not affect a capital defendant's ability to waive his right to appeal. He suggests that since the Commonwealth did not object to or seek to modify the sentence after it was imposed in 1988, and he expressly disclaims any interest in having the Court conduct further review, the appeal should be dismissed.

The Commonwealth responds that the automatic appeal required in capital cases is independent of the appellate rights personal to an individual defendant. We agree. As we stated in Appel, "automatic review ... is an integral and absolutely essential procedural safeguard prescribed by the legislature in the enactment of Pennsylvania's death penalty statute.... Thus although no issues have been presented for our consideration in this matter, we must fulfill our statutory obligation by examining the record lodged in this Court to ensure that the sentences imposed comport with the requirements of our death penalty statute and may be legitimately executed." 517 Pa. at 532, 539 A.2d at 781. (Emphasis added.) ¹

For this reason, the rules of appellate procedure are drafted so that in capital cases the appellate process is to be commenced even without the filing of a notice of appeal. Pa.R.A.P.1941 provides that "[u]pon the entry of a sentence subject to 42 Pa.C.S. § 9711(h) (review of sentence of death) the court shall direct the official court reporter and the clerk to proceed under this chapter as if a notice of appeal had been filed 20 days after the date of entry of the sentence of death...." (Emphasis added.)

It would appear that in the present case the court failed to issue the direction to the reporter and clerk mandated by this Rule. No action was taken following entry of the judgments of sentence until March of 1993. At that time, apparently, a memo was issued listing the case for disposition of post-trial motions on April 22, 1993. Counsel for Graham responded with a letter to the trial judge dated March 19, 1993, indicating that he would be unavailable until May 10, and further stating his belief that no proceedings were necessary because Graham, after consultation with his mother and various attorneys, had decided "that no motions be filed attacking the convictions or the sentences and that no appeal be taken." On March 24, 1993, the Deputy Director of Criminal Listings issued a Memorandum "to supersede our memo dated 3/11/93" and stating, "Please cancel the present listing of 4/22/93 in Courtroom 453 before the Honorable Robert A. Latrone, for disposition of Post Trial Motions. All matters concerning this defendant, Harrison Graham, in Common Pleas Court have been disposed."

On April 6, 1993, a Notice of Appeal form was filed, giving notice of appeal to this Court. The areas designated for signatures of the appellant or counsel did not bear signatures, but contained the handwritten notation "(Automatic Appeal)." The court filed its opinion on May 20, 1994, and the record was transmitted to this Court on May 26, 1994. Accordingly, despite the court's failure to perform its duty in accordance with Rule 1941(a), the appropriate actions were ultimately undertaken and this case is properly before the Court.

Because Graham has advanced no issues we review only the sufficiency of the evidence to establish first degree murder, and the validity of the sentences of death, as to the six counts for which the death penalty was imposed. See Appel and Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).

At trial, the Commonwealth introduced the testimony of police officers who, responding to a call by the landlord who had just evicted Graham, had discovered in Graham's apartment the remains of seven females in various stages of decay. Also introduced as evidence was a statement Graham gave to police in which he admitted that each of the women had died in the same way. Graham stated that a woman would come to the apartment with him to shoot drugs and drink liquor. Later, while they were engaged in sexual intercourse, Graham would grab the woman by the neck and ultimately choke her to death. Graham characterized the strangulations as "accidental," saying that in each instance he did not realize what had occurred until he later woke up and found that the woman lying next to him was dead. He would then dispose of the body in the back room of the apartment. Several other persons who had been in the apartment and had seen Graham with some of the victims offered corroborating testimony.

"A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing...." 18 Pa.C.S. § 2502. An intentional killing is a killing "by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing...." Id.

The common pleas court recognized that the design to kill required for first degree murder can be formulated in a fraction of a second. Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976). As was its prerogative, the court, as finder of fact, chose not to believe Graham's explanation of the strangulations as accidental, describing this claim as "self-serving and wholly incredible." Having examined the record, and viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we are satisfied that as to each of the victims the evidence was sufficient to establish all the elements of first degree murder beyond a reasonable doubt.

For each of the six first degree murder verdicts involved in this appeal, ² the court found two aggravating circumstances ³ which outweighed two mitigating circumstances, ⁴ thus requiring a sentence of death, 42 Pa.C.S. § 9711(c)(1)(iv).

We find no evidence to suggest that the sentences of death were "the product of passion, prejudice or any other arbitrary factor." Given the seven verdicts of first degree murder in this trial, the evidence unquestionably supports the aggravating circumstances that were found. Upon review of the statistics compiled by the Administrative Office of Pennsylvania Courts, the sentences are not "excessive or disproportionate to the penalty imposed in similar cases." Accordingly, the judgments of sentence of death must be affirmed. 42 Pa.C.S. § 9711(h)(3).

The issue that remains is the validity of the trial court's order that the death sentences be consecutive to the other sentences imposed. In its sentencing order, the court imposed consecutive sentences of one to two years imprisonment for each of the seven abuse of corpse convictions, ordered that the life imprisonment term be consecutive to these sentences, and directed that the six sentences of death be consecutive to the other sentences. The court explained in its Opinion that

The initial life sentence was humane in nature, but it assured that this mass murderer would not be granted any further opportunities to satisfy his homicidal instincts. The six consecutive death penalties assured that the first sentence of life imprisonment was, in fact, an assured life imprisonment without opportunity for parole.

Opinion at 8. ⁵

The Commonwealth argues that the court had no authority to make the death sentences consecutive to the life sentence, and that to the extent that it does so the order is illegal. The Commonwealth points out that the statute makes a death sentence mandatory where aggravating circumstances and no mitigating circumstances are found, and when, as here, aggravating circumstances outweigh mitigating circumstances. The Commonwealth argues that this mandatory feature intended by the legislature is obviated if the court, in formally imposing the sentence, can effectively nullify the decision made by the sentencing body. ⁶

In support of this argument, the Commonwealth notes the significance of the mandatory feature of § 9711 to the capital sentencing scheme, describing it as necessary to forestall the problems of arbitrariness and potential jury nullification identified in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (plurality) and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Furman invalidated capital sentencing schemes that vested unfettered discretion in the sentencer, finding an unacceptable risk of arbitrary application. Woodson invalidated a scheme, adopted in response to Furman, that removed all discretion from the sentencer and required the death penalty upon conviction for capital murder. The Court concluded that in practice juries might arbitrarily nullify the death sentence by improperly refusing to convict some defendants of capital murder.

The...