Com. v. Jones

• Decision Date: 13 August 1992
• Citation: 610 A.2d 931,530 Pa. 591
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Damon JONES, Appellant.
• Court: Pennsylvania Supreme Court

Page 931

610 A.2d 931

530 Pa. 591

COMMONWEALTH of Pennsylvania, Appellee, v. Damon JONES, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1991.

Filed May 21, 1992.

Reargument Denied Aug. 13, 1992.

Bernard L. Siegel, for appellant.

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

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

OPINION OF THE COURT

FLAHERTY, Justice.

In May of 1983, in a trial by jury in the Court of Common Pleas of Philadelphia, the appellant, Damon Jones, was convicted of two counts of murder of the first degree, six counts of aggravated assault, one count of criminal conspiracy, and one count of possession of an instrument of crime. In 1987, sentences of death were imposed with respect to the murder convictions and terms of imprisonment were imposed for the other offenses. The present direct appeal ensued. We affirm.

I. BACKGROUND

Appellant's convictions arose from a drug-related massacre in which two persons were killed and six others were seriously wounded in a courtyard at the Richard Allen Housing Project (Project) in the City of Philadelphia. The factual background is as follows.

On August 25, 1982, Sylvester Williams confronted Ernest Wright and demanded that he stop selling drugs in the Project. Williams confiscated the sum of $200.00 from Wright. Later that day, Williams encountered Isaiah Givens and discussed the earlier confrontation with Wright. Givens told Williams that there would be no acts of reprisal from himself, appellant, or Portie Robertson. Nevertheless, on the following day, appellant, accompanied by Givens and Robertson, entered the courtyard of the Project. All three men were carrying handguns. At that time, Williams was near the steps of a building that fronted the courtyard. An unidentified man approached the well-armed trio, whereupon appellant announced, "This is not meant for you. Move." Appellant, Givens, and Robertson then began to fire their weapons. In rapid succession they fired approximately twenty shots towards Williams. Numerous people were in the courtyard at the time, standing near Williams. Two of them, including one seven-year-old child, were killed and six others were seriously wounded. Williams was not hit. Appellant, Givens, and Robertson fled but were soon apprehended by police.

Appellant, Givens, and Robertson were tried jointly for this crime and all were convicted. In accordance with the jury's verdict in the penalty phase of trial, Givens and Robertson were sentenced to life imprisonment and appellant was sentenced to death.

II. PRETRIAL

Appellant's first contention is that a motion to sever his trial from that of his codefendants was erroneously denied. The record is silent as to the circumstances surrounding the denial of appellant's motion for severance. The motion was not denied by the trial court, but rather by another judge. Appellant has not cited anything in the record indicating the grounds on which the motion rested. The trial court, in preparing its opinion for purposes of this appeal, expressed uncertainty as to the grounds asserted for severance. It speculated that appellant presented his motion to a calendar control judge in proceedings not transcribed, but acknowledged that appellant may have at some time during trial presented a renewed oral motion for severance.

Nevertheless, appellant claims that severance would have spared him prejudice from testimony given by certain alibi witnesses who appeared on behalf of codefendant Givens. Numerous alibi witnesses testified that Givens was not in the courtyard at the time of the shootings. Three of these testified further, however, that they saw appellant and Robertson commit the shootings. Appellant claims therefore that his own defense, which was one of alibi, was inherently contradictory with Givens' defense. While the record provides no basis to determine the grounds actually asserted for severance, we believe that if, as appellant infers, the motion for severance was based on the possibility that appellant's defense might be prejudiced by conflicts with testimony presented by the codefendants, the motion was properly denied.

It is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Chester, 526 Pa. 578, 589-90, 587 A.2d 1367, 1372-73 (1991), cert. denied, U.S. 112 S.Ct. 152, 442, 116 L.Ed.2d 442 (1991). Where, as was the case here, defendants have been charged with conspiracy, joint rather than separate trials are to be preferred. Id. See also Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973) (joint trials are advisable where multiple defendants are charged with participation in the same criminal acts and much of the same evidence is necessary or applicable to all of the defendants). Severance may nevertheless be proper where a defendant can show that he will be prejudiced by a joint trial. Commonwealth v. Chester, 526 Pa. at 590, 587 A.2d at 1372-73.

Although the possibility of conflicting defenses is a factor to be considered in deciding whether to grant severance, it is clear that more than a bare assertion of conflict is required. Id. at 590, 587 A.2d at 1373. As stated in Commonwealth v. Chester, 526 Pa. at 590, 587 A.2d at 1373, "[t]he mere fact that there is hostility between defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials." Further, "[d]efenses become antagonistic only when the jury, in order to believe the essence of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of his co-defendant." Id.

Applying these principles to the present case, it is evident that the essence of Givens' defense was his own non-participation in the crime rather than the involvement of appellant and Robertson. Givens presented many witnesses in support of his defense of alibi, and, of these, only three testified that appellant was involved in the crime. Givens testified in support of his own alibi defense, and he did not, in any way, implicate appellant. Thus, the core of Givens' defense was one of alibi, as was the core of appellant's defense. There is nothing inherently antagonistic about alibi defenses being used by multiple defendants.

While portions of the testimony provided by a few of Givens' alibi witnesses indeed proved to be at odds with appellant's defense that he was not at the scene of the crime, the record does not reveal whether such a conflict was made known to the court when the motion for severance was offered. Even assuming that the conflict was made known, the testimony would not have so affected appellant's defense as to render the decision not to sever the trials a manifest abuse of discretion.

If the severance motion had been granted the Commonwealth would likely have been able, if it desired, to introduce testimony against appellant from the same three witnesses in a separate trial. Hence, granting the motion to sever would not have insulated appellant from the testimony in question.

Further, the testimony was of very doubtful significance, since the Commonwealth produced six or more of its own witnesses who testified that they saw appellant commit the shootings. Quite obviously, too, Givens' alibi witnesses were not believed by the jury. If they had been believed, Givens would not have been found guilty. It is most unlikely, therefore, that their testimony played any role in appellant's conviction.

Thus, the three defendants were charged with conspiracy, making a joint trial advisable. Much of the evidence pertained to all three defendants, rather than to just one. The testimony given by a few of Givens' alibi witnesses, even if the adverse nature of it had been foreseen at the time the motion for severance was made, was not such as would have necessitated that the defendants be tried separately. Further, the trial was a very lengthy one, consuming more than two months. It was characterized by the trial court as one of the most time-consuming homicide trials ever conducted in Philadelphia. A record in excess of seven thousand pages was produced. To have conducted separate trials for the codefendants in this case would have placed a heavy burden upon the judicial system as well as upon the public. Based upon these considerations, the trial court committed no abuse of discretion in denying the motion for severance. ¹

III. TRIAL

Throughout this lengthy trial, the jury was sequestered. During sequestration, two of the jurors engaged in certain foolish pranks at the hotel where they were staying. Appellant contends that the pranks demonstrated that the jurors were "fools and buffoons," and, therefore, that they were incompetent to render a fair and impartial determination of his guilt or innocence.

It is, of course, an accused's right to be judged by a fair and impartial jury of his peers. Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972); Pa. Const. art. I, § 9. Unfortunately, within any peer group, there may be persons who at times engage in conduct that is, to say the least, foolhardy. Appellant argues that jurors who engage in even brief episodes of foolish behavior are incapable of engaging in the sober and serious deliberations required of them. We do not agree. When jurors are sequestered during lengthy trials, frustration and boredom may from time to time cause certain unfortunate incidents to occur. Such incidents do not, however, indicate that the jurors are unable to listen to the testimony and render a fair and impartial verdict. Incidents involving juror misconduct do not warrant the declaration of a mistrial unless there has been prejudice to the accused. Commonwealth v. Gockley, 411...