Com. v. Gray

• Decision Date: 11 May 1992
• Parties: COMMONWEALTH of Pennsylvania v. James GRAY, Appellant.
• Court: Pennsylvania Superior Court

Page 534

608 A.2d 534

415 Pa.Super. 77

COMMONWEALTH of Pennsylvania v. James GRAY, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 25, 1991.

Filed May 11, 1992.

James A. Lineberger, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.

Before TAMILIA, JOHNSON and CERCONE, JJ.

CERCONE, Judge:

This appeal comes to us from the judgment of sentence of life imprisonment imposed after a jury found appellant, James Gray, guilty of murder in the first degree. Appellant was also convicted of criminal conspiracy, possession of instruments of crime, and aggravated assault. ¹ The lower court imposed concurrent sentences of five to ten years each on the convictions of criminal conspiracy and aggravated assault. Appellant's motion for new trial and/or in arrest of judgment was denied, and appellant filed the instant timely appeal. ² After careful study and evaluation of the record, the briefs of the parties and the opinion of the learned trial judge, the Honorable George J. Ivins, we affirm the judgment of sentence.

The convictions against appellant arose out of the murder of Maureen Dunne and the wounding of Gregory Ogrod on July 31, 1986. Ms. Dunne was stabbed and beaten while she was sleeping at the home of Gregory Ogrod, her boyfriend, who had been engaged in the purchase of drugs with one of the assailants, Morris Spence, also a defendant here. Ogrod, the primary target of the assault, was present in the room with Ms. Dunne on the night of the murder. He was also beaten and stabbed, but survived the attack which was carried out by appellant and three co-defendants: Morris (Marvin) Spence, Richard Hackett and Keith Barrett. All four defendants were convicted of first degree murder. Spence and Hackett received the death penalty for their participation in the crime; appellant and Barrett received sentences of life imprisonment at the hands of the jury. Defendant Hackett is a white male, and appellant, Spence, and Barrett are black males.

The evidence at trial revealed that the murder of Maureen Dunne and the wounding of Gregory Ogrod were inspired by the following circumstances. Gregory Ogrod, a white man, and defendant Morris Spence, a black man, were involved as partners in the sale of illegal drugs. Ogrod's function in the partnership was to supply the cash and Spence was to purchase the drugs for resale. The partnership began to deteriorate because Spence would take money from Ogrod but would neglect to purchase the drugs for which the money was intended. The relationship soured to the point where the two men made threats against each other.

Ogrod also was in a bad relationship with defendant Richard Hackett. Ogrod lived in a house which he jointly owned with his brother Walter. Walter Ogrod invited defendant Hackett to live in the house although Gregory Ogrod strongly objected to Hackett's presence there. An ongoing dispute developed between Hackett and Ogrod, and Hackett began to search for a hit man to kill Ogrod. Hackett subsequently agreed to pay one David Carter to kill Ogrod. Carter was advised that if a girl were with Ogrod at the time of the "hit," then she too would have to be killed.

On the night before the planned attack, Spence went to Carter's house to discuss the killing. At Carter's home were appellant Gray and defendant Keith Barrett, a close friend of Carter's. During the evening, as the details of the proposed killing were discussed, Carter, who had been offered $5,000 by Hackett, decided he was not going to participate in the plans. However, appellant, Spence, and Barrett agreed to do the killing the next night. The following night, July 31, 1986, defendant Hackett drove appellant, Spence, and Barrett to Ogrod's home. Appellant got a crowbar from Hackett's truck, while Spence and Barrett armed themselves with knives. They then went to the basement where they found Ogrod and Maureen Dunne asleep. They proceeded to stab and beat the victims. Somehow, Ogrod managed to chase his assailants out of the house. When he returned to the basement, he found the mortally wounded Maureen Dunne. ³

After the notice of appeal had been lodged with this court in August of 1990, counsel for appellant filed a motion to withdraw which was denied. In December, 1990, appellant filed a pro se supplemental brief. Since appellant raised the issue of ineffectiveness of appellate counsel in this pro se brief on appeal, this court ordered counsel on April 5, 1991, to petition for remand so that an evidentiary hearing could be held on the issue of his ineffectiveness. On June 18, 1991, the case was remanded to the trial court for this purpose. Subsequently, on August 6, 1991, pursuant to a petition for reconsideration filed by the Commonwealth, we vacated our previous orders of April 5 and June 18, 1991, and held that we would consider the merits of both appellant's counseled and pro se briefs. ⁴

On appeal, counsel for appellant raises the following issues:

1. Whether the trial court erred in refusing to permit counsel for appellant to inquire of veniremen who were white whether or not they would be partial to the prosecution because of the fact that the victim was white and the defendants were black.

2. Whether the defendant was denied a fair and impartial trial as a result of the impaneling of a death qualified jury.

3. Whether the trial court's alleged frequent criticism of appellant's counsel in the presence of the jury adversely and prejudicially contributed to the guilty verdict.

4. Whether the trial court erred in requiring appellant to stand trial without retained counsel of his choice.

(As to the first claim, it must be pointed out that there was one white and three black defendants.) In his pro se brief, appellant alleges ineffectiveness of counsel for failure to preserve the following issues in post-verdict motions for purposes of appeal:

1. That defense counsel permitted appellant to appear before the jury selection panel and jury in his prison garb.

2. That appellant was denied his right to retain paid counsel of his own choosing to represent him at trial in violation of Article I, section 9 of the Pennsylvania constitution.

3. That appellant's arrest was illegal because the police entered his house to arrest him without compliance with the knock and announce rule.

4. That appellant was denied his constitutional rights under Articles 1, 8, 9, and 14 [sic] of the United States Constitution and amendments 4, 6, and 14 where the police officers who arrested appellant willfully and wrongfully delayed taking appellant before the nearest judicial authority (magistrate) for arraignment on the charges.

5. That counsel for appellant failed to pursue a petition for reconsideration of sentence or an appeal.

We will first consider the issues raised in appellant's counseled brief.

Voir Dire Questions Concerning Racial Bias

Appellant's initial contention is that the lower court erred in prohibiting counsel from asking the following question on individual voir dire: "Would the fact that the victim in this case is white and defendants are black and that you are white cause you to be somewhat partial towards the prosecution?" Appellant contends that the case was a racially sensitive one, and therefore, the question should have been permitted. He argues that the lower court abused its discretion in not permitting the question, because the court's prohibition left in doubt the degree of racial bias among the venire persons who were selected.

In Pennsylvania, it has long been held that the scope of voir dire examination rests within the sound discretion of the trial court. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Richardson, 504 Pa. 358, 473 A.2d 1361 (1984); Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976); Commonwealth v. Brown, 464 Pa. 625, 347 A.2d 716 (1975); Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). However, when the issue of the potential racial bias of venire members has been raised, the Pennsylvania courts have placed some limitations on the trial court's discretion in determining the scope of voir dire. In Commonwealth v. Brown, supra, a black male defendant was convicted of the rape of a white female minor. The trial court refused to allow on voir dire a question proposed by appellant to ascertain racial bias or prejudice on the part of the prospective jurors. ⁵ On appeal, the Pennsylvania Supreme Court held that the lower court erred in failing to pose the question. The court reasoned that the proposed question was proper because it "was designed to elicit the prospective jurors' bias or prejudice concerning black-white relationships which, if shown, would subject them to disqualification." Id., 464 Pa. at 629, 347 A.2d at 718.

In Commonwealth v. Richardson, supra, the defendant had also been convicted of rape. The defendant was black and the victim was white. The defendant requested that the trial court ask prospective jurors on voir dire a series of five questions designed to probe their racial prejudice. ⁶ The trial court refused to use the language prepared by the defendant, but posed its own question as follows:

I have just been advised that the victim in this case was a white person. You see that the defendant is black. Would these racial differences present such a problem to you that it could interfere with your honest appraisal of the case and interfere with your ability to be completely fair to both the Commonwealth and the Defendant?

504 Pa. at 361, 473 A.2d at 1362. The Richardson court found that the lower court's conduct of the voir dire was adequate and not an abuse of discretion. Id., 504 Pa. at 364, 473 A.2d at 1363...