Com. v. Harris

• Decision Date: 20 November 2002
• Citation: 817 A.2d 1033,572 Pa. 489
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Francis Bauer HARRIS, Appellant.
• Court: Pennsylvania Supreme Court

817 A.2d 1033

572 Pa. 489

COMMONWEALTH of Pennsylvania, Appellee, v. Francis Bauer HARRIS, Appellant.

No. 271 Capital Appeal Docket.

Supreme Court of Pennsylvania.

Argued May 2, 2000.

Decided November 20, 2002.

Reargument Denied March 20, 2003.

William W. Boyd, Thelia Jean Eaby, Lancaster, for F. Harris.

Craig W. Stedman, Lancaster, for the Com. of PA.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

Justice CASTILLE.

This is a direct appeal from the sentence of death imposed on appellant by the Court of Common Pleas of Lancaster County.¹ On October 4, 1997, following a jury trial, appellant was convicted of first-degree murder.² After a penalty hearing, the jury found one aggravating circumstance and no mitigating circumstances and, therefore, returned a sentencing verdict of death.³ Post-verdict motions were filed and denied and the trial court formally imposed the death penalty. On appeal, appellant raises six claims, many of which have multiple subparts. For the reasons that follow, we affirm the judgment of sentence.

Although appellant has not specifically challenged the sufficiency of the evidence, we begin, as we do in all death penalty direct appeals, by performing our self-imposed obligation to review the evidence underlying the first-degree murder conviction. See Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1283 (2000)

. In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, supports the jury's finding of all of the elements of the offense beyond a reasonable doubt. Id.; Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217, 1218 (1986).

Evidence is sufficient to sustain a conviction for first-degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the defendant is responsible for the killing; and that the killing was committed with premeditation or deliberation. See 18 Pa.C.S. § 2502(d); Spotz; Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (1991). A specific intent to kill may be proven by circumstantial evidence; and it may be inferred from the defendant's use of a deadly weapon upon a vital part of the victim's body. Spotz; Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (1995).

The evidence adduced at trial showed that: On August 1, 1995, Daryl Martin intervened in an argument between appellant and appellant's former girlfriend, Maxine Snook, at the Pipeline Bar in Lancaster, Pennsylvania. Appellant beat Martin severely and, as a result, was charged with aggravated assault. Appellant's trial for aggravated assault was scheduled for November 1996. Prior to that time, appellant obtained the addresses from police reports of several of the witnesses against him, including Martin. Appellant instructed his then-girlfriend, Kimberly Kistler, to confirm that Martin lived at the address that appellant had obtained. Kistler did so.

On the weekend of November 2-3, 1996, appellant, who lived in East Rutherford, New Jersey, visited Kistler at her home in Elizabethtown, Pennsylvania. At appellant's request, Kistler called Martin on November 3rd and lured him into what proved to be a fatal encounter. Kistler identified herself to Martin as a woman named "Patty" from Ohio, and claimed that she had met Martin on a prior occasion when he was drunk. She arranged to meet Martin for drinks at the Tobias S. Frogg restaurant in Lancaster between 7:30 and 8:00 that evening. Appellant and Kistler arrived at the Tobias S. Frogg well before the designated hour and, after surveying the area, waited in their car for Martin. After Martin arrived and entered the restaurant, appellant slashed the left front tire of Martin's car, and then he and Kistler lay in wait for Martin in a nearby parking lot. At approximately 8:45 p.m., Martin left the restaurant, entered his car and attempted to drive away. Upon discovering that his vehicle had a flat tire, Martin pulled into the parking lot of an abandoned Dunkin' Donuts. He then walked back to the restaurant and called his brother for assistance from the restaurant's pay phone. When Martin returned to the Dunkin' Donuts lot, however, appellant ambushed him with a knife, slashing Martin's throat with such force as to leave a wound over eight inches in length and three inches deep, killing him.

Kistler was the Commonwealth's key witness at trial. She testified that, after Martin had entered the Dunkin' Donuts lot, appellant drove his truck behind the lot, exited the vehicle, and instructed Kistler to drive around the neighborhood for a few minutes before returning to pick him up. After circling the neighborhood for approximately five minutes, Kistler returned to the lot and saw appellant running towards the car. When appellant entered the vehicle, he was shaking, growling and breathing heavily. He was no longer wearing the plaid jacket that he had been wearing when he exited the vehicle earlier. Kistler further testified that, as they were driving on Route 741 near the Route 30 bypass, appellant threw his black Fila sneakers out of the car window.

Kistler stated that she and appellant arrived back at her house at 9:15 p.m., whereupon appellant began to construct an alibi. Appellant instructed Kistler to call his brother, Russell, on Russell's cell phone and tell Russell to call one John Russo and then use appellant's parents' phone to call Kistler back. Appellant also told Kistler to tell the police that he had left Elizabethtown between 6:00 and 6:30 p.m. and had arrived home in New Jersey between 9:00 and 9:30 p.m. Kistler further testified that, after appellant left to return to New Jersey, she indeed called Russell Harris on his cell phone and instructed him to call John Russo. Then, Kistler called Russell back at appellants' parents' home phone number and instructed him to call her back, which he did.

At trial, Kistler identified the pair of bloodstained, size 13, black Fila sneakers later found by police along Route 741 near the Route 30 bypass as the shoes that appellant had been wearing on the night of the murder. She also identified a plaid jacket found near the crime scene as the jacket appellant had been wearing on the night of the murder. The jacket was stained with blood that proved to be consistent with the blood type and DNA of Martin.

Paul Janowski, the former owner of the Pipeline Bar, and Sherry Henry, an acquaintance of appellant's from the Pipeline Bar, both identified the plaid jacket as appellant's. Maxine Snook identified the bloodstained knife police found near the crime scene, which proved to be consistent with an object inflicting the type of wounds inflicted on Martin, as being similar to a knife that she had seen appellant carrying prior to the murder. Snook further identified the bloodstained Fila sneakers as similar to the sneakers that appellant had worn to his preliminary hearing in his assault case. Mark Dodge, a long-time friend of appellant's, also identified appellant's sneakers.

Detective John Ator of the Lancaster County Police Department testified that he questioned appellant about the murder of Daryl Martin. Appellant told Ator that he had gone to visit Kistler in Lancaster on the weekend of November 2-3, 1996, but that he had left Lancaster on Sunday evening at 6:00 p.m. Appellant claimed that he had arrived in East Rutherford, New Jersey, at 9:30 p.m. and, subsequently, left a message on John Russo's answering machine. Then, he called Kistler to tell her that he had made it home safely. Appellant told Ator that he went to look for Russo at the Mardi Gras bar in Lyndhurst, New Jersey. He claimed that he arrived at the Mardi Gras at 10:00 p.m. and asked the owner if Russo was around.

Several witnesses contradicted appellant's fabricated claim of alibi. John Russo testified that there was no message on his answering machine from appellant on November 3, 1996, but that he did receive a message from appellant's brother Russell on that date. Martin Nowinski, the owner of the Mardi Gras bar, testified that he did not remember appellant coming into the bar and speaking with him on November 3, 1996. Russell Harris testified that, on November 3, 1996, Kimberly Kistler called him on his cell phone at 9:15 or 9:30 p.m. and asked him to call John Russo. Harris testified that he made the call and left a message for Russo telling him to call Kistler. Two minutes later, Harris called Kistler back to tell her that Russo was not home. Harris further testified that he was living with appellant at their parents' house on November 3 and that he did not see appellant at all on that day. Lurline Harris, appellant's mother, testified that on November 3, 1996, she had been downstairs in her home until 11:00 p.m. and also did not see appellant at all that day. At approximately 11:30 that evening, however, when Mrs. Harris was in bed, she heard appellant say, "Hi, ma" from outside her bedroom door.

Deborah Calhoun, a forensic pathologist, testified that two hairs retrieved from the plaid jacket found at the scene of the murder were consistent with appellant's hair, two other hairs came from Kistler, and a fifth hair was consistent with hair from Daryl Martin. Calhoun further testified that two hairs found in the truck driven by appellant on the night of the murder could have come from Martin. Finally, Calhoun testified that blood found on the knife and the plaid jacket was consistent with Martin's blood.

The Commonwealth also produced telephone records indicating that a pre-paid phone card was used to make a phone call to Kistler's home from a pay phone in Bethel, Pennsylvania at 10:03 p.m. on November 3, 1996. Bethel is 38 miles from Elizabethtown and a two-hour drive from East Rutherford. The same card was used to call John Russo fro...