Com. v. Green

Decision Date21 April 1994
Citation640 A.2d 1242,536 Pa. 599
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Samuel Lee GREEN, Appellant.
CourtPennsylvania Supreme Court

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

OPINION OF THE COURT

CAPPY, Justice.

This is an automatic direct appeal 1 from a sentence of death imposed upon appellant by the Court of Common Pleas of Northampton County following his conviction of murder of the first degree, kidnapping and conspiracy arising from the murder of Richard Bowser, a police officer for the City of Harrisburg. 2 For the reasons that follow, we reverse the judgment of sentence and remand for a new trial.

At trial, the Commonwealth sought to prove that on October 22, 1987, while the victim, Richard Bowser, was asleep in his Harrisburg apartment, Appellant entered the victim's apartment through a window and, without waking the victim, took a set of car keys and left the apartment. Appellant then drove the victim's car to Bonnie Sue Pflugler's residence in Allentown. Appellant and his co-conspirator, Bonnie Sue Pflugler, then drove back to the victim's apartment in Harrisburg ostensibly for the purpose of committing another burglary therein.

The two gained entry into the victim's apartment via an open ground level window. It is the Commonwealth's further contention that the co-conspirators took numerous items, including the victim's .357 magnum service revolver and either forced the victim into the trunk of his automobile or shot him twice in the head first and then placed his body in the trunk. They then drove to an area known as the 27th Street Extension located in the Borough of Northampton where the victim was removed from the trunk of his car and his nude body was buried under a pile of brush.

Following the murder, appellant and his co-conspirator fled and subsequently abandoned the victim's car in Richmond, Virginia. They proceeded to North Carolina were they stole a van which they then drove to Florida. On October 30, 1987, they were arrested in Leon County, Florida, after police found them occupying the stolen van. Pflugler was eventually released from custody after appellant told the Florida authorities that she was a hitchhiker whom he had given a ride. Appellant, however, was taken into custody in Leon County.

The victim's car was discovered in Virginia on November 2, 1987, and prints taken therefrom resulted in appellant and Pflugler being suspects in the disappearance of Bowser. Appellant was interrogated while in prison in Leon County by the Leon County Sheriff's Office as well as the F.B.I. and the Pennsylvania State Police. He finally waived extradition on the stolen vehicle charge, which was the only charge he was then facing, and was transported back to Pennsylvania. While in prison and on the drive to Pennsylvania, appellant gave varying statements to the authorities regarding his and his co-conspirator's activities on the night of October 22, 1987. In each statement, however, appellant maintained that he was not with Pflugler when the victim was taken from his apartment; that he only saw Pflugler and the victim standing by the trunk of the victim's car; and that once they had stopped in the area of the 27th Street Extension, appellant walked away from the car and, while he did not see Pflugler actually shoot the victim, he did hear two shots.

Although both appellant and Pflugler were charged with murder, kidnapping and conspiracy, their cases were severed and appellant proceeded to trial first. He was ultimately found guilty of murder of the first degree, kidnapping and conspiracy following which the jury rendered a sentence of death. 3

While traditionally this Court, in reviewing cases in which the death penalty has been imposed, has reviewed the sufficiency of the evidence to sustain a conviction of murder of the first degree, we do not believe it is incumbent upon the Court to so review in the instant matter as we are reversing and remanding for a new trial. 4 Accordingly, we shall proceed directly to the issue upon which we base our reversal.

Appellant contends that the Commonwealth failed to disclose certain exculpatory evidence prior to trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Pa.R.Crim.P.Rule 305. 5 Appellant points specifically to statements made by one Thomas Moser who informed the investigating officers that following the murder, he encountered Pflugler in a bar and that she told him that she did something really big; that she could sit big time for it; that she shot someone; and that she killed a cop. 6 Prior to trial, appellant made a general request for all favorable or exculpatory statements in the Commonwealth's possession. Despite their knowledge of Moser's statements prior to appellant's trial, the Commonwealth failed to disclose this evidence to appellant in discovery or at any time during his trial. Indeed, the defense did not learn of Moser's statement until Moser was called to testify on behalf of the Commonwealth at the subsequent trial of Pflugler. The defense then filed supplemental post-trial motions arguing, inter alia, the Commonwealth's failure to disclose Moser's statements. The trial court found that Moser's statements were neither admissible nor exculpatory and on that basis ruled appellant's argument to be without merit. The trial court's ruling was clearly in error.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defendant, following his conviction of murder in the first degree and sentence of death, learned of an extrajudicial statement of his accomplice, who had been tried separately, wherein the accomplice admitted the actual homicide. The prosecutor in Brady had failed to disclose this statement notwithstanding an earlier timely request by the defendant for all statements of the co-defendant. The United States Supreme Court there held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196-1197, 10 L.Ed.2d at 218. The Court noted further that

[a] prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not "the result of guile," to use the words of the Court of Appeals.

Id. at 88, 83 S.Ct. at 1197, 10 L.Ed.2d at 219.

Recently, in Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1992), this Court discussed in detail the holding in Brady and its progeny. As we noted there, materiality is determined by different standards depending upon whether trial counsel made a specific or a general request for exculpatory evidence. For instance, where the defense gives the prosecution notice of exactly what the defense desires, the test of materiality is whether the evidence might have affected the outcome of the trial. Commonwealth v. Moose, 529 Pa. at 233, 602 A.2d at 1272, quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342, 350 (1976). Where, as here, a general, as opposed to specific, request for exculpatory evidence is made, the evidence is material "if the omitted evidence creates a reasonable doubt that did not otherwise exist ..." Moose, 529 Pa. at 233, 602 A.2d at 1272, quoting Agurs, 427 U.S. at 112, 96 S.Ct. at 2402, 49 L.Ed.2d at 355. The Court in Agurs further stated that

the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

Agurs, 427 U.S. at 112-113, 96 S.Ct. at 2402, 49 L.Ed.2d at 355. In determining the materiality of the omitted evidence we must, therefore, consider any adverse effect that the prosecutor's failure to disclose might have had on not only the presentation of the defense at trial, but the preparation of the defense as well. See, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Upon application of these principles to the facts of the instant case, we conclude that the evidence withheld by the Commonwealth is relevant and material.

Throughout appellant's trial, the Commonwealth sought to establish that appellant was the actual shooter. The Commonwealth did so based solely on circumstantial evidence and inferences. No murder weapon was ever located and while appellant's fingerprints were found on items located inside the victim's apartment as well as in his automobile, Pflugler's prints were also discovered in the victim's vehicle. As the Commonwealth's closing argument at guilt phase amply demonstrates, it was the Commonwealth's objective to have the jury believe that appellant, and not his co-conspirator, actually shot Officer Bowser by referencing the facts that the victim was of a heavy build; that appellant was much bigger than Pflugler; and that he lifted weights and thus was the only one of the two who was strong enough to move a person the size of the victim. The Commonwealth argued this even though there was no evidence suggesting that the victim was shot or killed before having been transferred in the trunk of his car. Alternatively, the Commonwealth argued to...

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