Com. v. Hall

Decision Date19 October 1989
Citation523 Pa. 75,565 A.2d 144
PartiesCOMMONWEALTH Of Pennsylvania, Appellee, v. Donald HALL, Appellant. 97 E.D. 1984
CourtPennsylvania Supreme Court

John P. Cotter, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Before LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

The appellant was tried by a jury and found guilty on two counts of murder in the first degree 1 and one count of possession of an instrument of crime. 2 After further deliberations that same jury rendered two separate verdicts of death for the two first degree murder convictions. 3 Subsequently, the trial judge ordered a new trial. This order was vacated, the convictions were reinstated and the case was remanded to the Court of Common Pleas of Philadelphia County, for sentencing. See Commonwealth v. Hall, 361 Pa.Super. 634, 517 A.2d 1364 (1986). Judgement of sentence was entered on June 18, 1987. 4 In addition to imposing the sentences of death fixed by the jury, 5 the sentencing judge ordered that any commutation of the death sentences was to run consecutive to each other and the other unrelated sentences the appellant was then serving. He further imposed a consecutive sentence of two and one-half to five years imprisonment on the conviction for possession of an instrument of crime. Appellant directly appealed the judgements of sentence. 6

The pertinent facts are as follows. On Wednesday, the 18th of March, 1981, at approximately 2:00, A.M., members of the Philadelphia Police Department's Mobile Crime Detection Unit were summoned to investigate a disturbance in a building at 2308 West Diamond Street in Philadelphia, Pennsylvania. Upon arrival they discovered the bodies of Richard Mayberry and George Ellerbee. Mayberry's body, with two gun shot wounds to the head, was found on the second floor landing of the north fire tower of this building. From there police followed a trail of blood which lead them to apartment 305 of the building, where they found Ellerbee's body slumped on the sofa in the living room. From the apartment police recovered several fire-arms, live ammunition, spent cartridges, money and a large quantity of illicit drugs. Police learned that the apartment was rented to an Evelyn B. Lingham. On March 20, 1981, Ms. Lingham informed the police that she was present on the night of the murders. She named the appellant as the individual who killed Mayberry and Ellerbee. Another individual, a Paul Fisher, also informed the police that he too was in the the apartment on the night in question. He also named the appellant as the killer. On May 20, 1981, two months later, the appellant was apprehended and formally charged in connection with the killings. His trial began on April 28, 1982 and the jury returned a verdict of guilty on May 11, of that year. He raises several claims of trial court error. Before addressing these claims we must first determine whether the evidence was sufficient to sustain his convictions. 7

A review of the record reveals that the principle evidence presented at trial were statements by Ms. Lingham and Mr. Fisher. The trial court permitted the Commonwealth to introduce these statements as substantive evidence, 8 even though both witnesses recanted prior statements. Two days after the murders, Ms. Lingham made three separate statements. The first two were transcribed by the police and signed by her and the third was tape recorded.

In the first statement Ms. Lingham denied any knowledge of the murders. Subsequently, in her second and third statements, she told them that she was contacted at her sister's house by the appellant and that he asked her to meet with him, which she did. She stated that when she did he asked her to do him a favor, namely to telephone her apartment and to tell Mayberry that she wanted to come up to Mayberry's apartment. Ms. Lingham stated that the appellant told her that he wanted to see Mayberry because Mayberry had cheated him in a drug deal. Further she explained that Mayberry was a drug dealer and that he had been paying her $300.00 a week to use her apartment to sell drugs.

Ms. Lingham also testified that she called, as appellant requested, but that Mayberry told her to wait for a half an hour. She and the appellant then waited together during which time the appellant showed her a .22 caliber revolver which was concealed under his jacket. They went to the apartment together and appellant knocked on the door. When Mayberry answered, the appellant told him that Ms. Lingham wanted to lay down and get some rest. Mayberry then opened the door. As the appellant entered the apartment, he walked next to Ellerbee, who was sitting on the couch and said, "why do people cross people". He then shot Ellerbee in the head, turned to Mayberry and repeated "why do people cross people". At that point she ran and Mayberry followed. She then heard two more shots. After she got to the first floor, she returned to her apartment and found Mayberry lying in the hallway, bleeding from the back of his head. She then saw the appellant, with gun in hand, trying to get Paul Fisher to come out of the bedroom of Mayberry's apartment. Ms. Lingham then ran outside the apartment and attempted to flag down a cab. By the time she had gotten a cab to stop, the appellant arrived. Both got into the cab and later dropped the appellant at a hotel.

Fisher's statement to the police corroborated Ms. Lingham's second and third statements to them. He stated that he went to the apartment on the night in question with his girlfriend and that both were admitted by Mayberry. Further that he and his girlfriend were in the bedroom when the appellant and Ms. Lingham arrived, that the bedroom door was partly open and that he saw both of them. He stated that he then heard four shots and that afterwards, he saw the appellant coming towards the bedroom door. He then quickly shut the door and locked it. He and his girlfriend then exited the room through a window.

This evidence, if accepted by the jury, was sufficient to sustain the appellant's conviction beyond a reasonable doubt. See Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978).

These statements were also corroborated by the trial testimony of other Commonwealth witnesses. A Ms. Geraldine Baxter testified that she was Paul Fisher's girlfriend at the time and that she was in the bedroom of the apartment during the shootings. She testified that she had been sleeping and that she was awakened by the sound of gun fire. When she awoke, Fisher was leaning against the bedroom door holding it shut. Further that he called out to a Ms. Lingham by name and that a women replied. She then heard a male voice on the other side of the door telling Fisher to let him in. She testified that they looked for a gun in the room but that when they could not find one, they both exited the bedroom through the window. 9

The statements made by Ms. Lingham and Mr. Fisher were corroborative of Ms. Baxter's testimony. The testimony given by the investigating officers and the medical examiner, further aided in that regard. 10 Finally, the appellant himself testified that he knew that the police were looking for him in-connection with the murders two days after they were committed, but that he did not turn himself in. We believe that the evidence was sufficient to sustain the appellant's convictions. We will next address the appellant's specific claims of error, seriatim.

The first issue raised by the appellant is that the trial court erred by allowing certain trial exhibits, namely the written and tape recorded statements of Mr. Fisher and Ms. Lingham, to be sent out with the jury during deliberations. He asserts that this violated Rule 1114, of the Pennsylvania Rules of Criminal Procedure. Rule 1114 provides:

Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.

He concedes that these exhibits were not specifically prohibited by the rule but argues that the practice of allowing written and tape recorded statements to go out with the jury during its deliberations in general, could be used to circumvent the rule's prohibition against trial transcripts by unscrupulous individuals who could manufacture such evidence specifically for trial. While the appellant points out an obvious hazard of the rule, there is no evidence in the record to suggest such a finding in this case, thus we do not believe that the trial court abused its discretion. See Commonwealth v. Riggins, 478 Pa. 222, 232-33, 386 A.2d 520, 525-26 (1978). 11

The appellant further argues that the trial court erred by allowing certain testimony to be introduced which established that Ms. Lingham failed a polygraph examination after giving her first statement to police, but prior to her second statement. The record reflects that the first time the jury was made aware of Ms. Lingham's polygraph examination was during defense counsel's cross-examination of a Detective Curcio. It is apparent from the record that appellant's trial counsel intentionally elicited this information in an attempt to establish that the later two statements, by Ms. Lingham, were coerced by the police. See N.T., 5/4/82, pp. 5.24-5.25. 12 It is well established that failed trial tactics of defense counsel are not grounds for a new trial. Thus the appellant cannot complain regarding reference to the polygraph examination made during trial. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 ...

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