Com. v. Judge

• Decision Date: 18 May 1992
• Citation: 609 A.2d 785,530 Pa. 403
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Roger JUDGE, Appellant.
• Court: Pennsylvania Supreme Court

Page 785

609 A.2d 785

530 Pa. 403

COMMONWEALTH of Pennsylvania, Appellee, v. Roger JUDGE, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 22, 1991.

Decided May 18, 1992.

[530 Pa. 404] Daniel A. Rendine, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, Chief Appeals Div., Catherine Marshall and 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

LARSEN, Justice.

On April 15, 1987, appellant, Roger Judge was convicted by a jury of two counts of murder of the first degree and possession of an instrument of crime. Immediately following the verdict, a sentencing hearing was held pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711, and the jury unanimously sentenced appellant to death for each first degree murder conviction. On June 12, 1987, post-trial motions were heard and denied by the trial judge, who formally sentenced appellant to death for each of the two murders. ¹ On June 14, 1987, two days after sentencing, appellant escaped from custody. ² On August 11, 1987, while still a fugitive, appellant filed a pro se notice of appeal from the death sentence judgments. Appellant is presently incarcerated in British Columbia, Canada, where he is serving two ten-year prison terms for robberies. Pursuant to Article 6 of the extradition agreement between the United States and Canada, appellant cannot be extradited to Pennsylvania, because first degree murder is not punishable by death in Canada. ³ Treaty on Extradition, Dec. 3, 1971; amended June 28, 1974, July 29, 1974, United States-Canada, 27 U.S.T. 983, T.I.A.S. No. 8237; Criminal Code, R.S.C., c. C-46, s. 235(1).

On December 22, 1989 this Court, sua sponte, entered a per curiam order limiting review of the case to sufficiency of the evidence, and propriety of the sentence. ⁴ In derogation of this Court's order, appellant's attorney raised several claims of error for our review. Although this Court has the authority to correct errors at trial which the appellant raises ⁵, this Court's rules expressly provide for the quashing of an appeal when the appellant is a fugitive. Pa.R.A.P. 1972(6) ⁶, and it is within the discretion of this Court to take such action sua sponte. Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976). Additionally, this Court has held that "a defendant who elects to escape from custody forfeits his right to appellate review." Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984) (emphasis added).

In Passaro, we noted that "[d]isposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law." Id. at 614-15, 476 A.2d at 348 (quoting Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975)). In Pennsylvania we have consistently followed this practice. E.g., Commonwealth v. Craddock, 522 Pa. 491, 564 A.2d 151 (1989); Commonwealth v. Ciotti, 318 Pa.Super. 549, 465 A.2d 690 (1983) (en banc), vacated, 506 Pa. 10, 483 A.2d 852 (1984); Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986), vacated, 520 Pa. 75, 550 A.2d 1317 (1988). Moreover, we have held that once the defendant has fled, his subsequent return or recapture does not provide a basis for reinstating his appeal. Commonwealth v. Passaro, supra.

Although Passaro was not a capital case, there is nothing in the broad language of the opinion that limits its holding to non-capital defendants. Dismissal of pending appeals of defendants escaped from death row is not a novel concept. E.g., Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); Mosley v. State, 189 Ga. 71, 5 S.E.2d 47 (1939); State v. Jugger, 217 La. 687, 47 So.2d 46 (1950); see, Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985) (denying motion to dismiss only because the defendant surrendered within period set by court).

However, because of the severity and finality of the sentence of death, we are statutorily mandated to review all death sentences pursuant to 42 Pa.C.S.A. § 9711(h). ⁷ In capital cases, we must also review the sufficiency of the evidence to sustain a conviction for murder of the first degree. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). We will discharge this duty regardless of whether appellant has challenged his conviction on that ground. Id. at 26 n. 3, 454 A.2d at 942 n. 3. In Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991), this Court held that notwithstanding appellant's desire not to pursue his appeal in order to expedite his execution, we will discharge our duty under the foregoing standard. See also, Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1988) (automatic review mandatory, regardless of appellant's desire to waive appeal). Consequently, appellant's election to flee does not allow him to subvert our goal of insuring that the death sentence comports with the Commonwealth's death penalty statute.

Therefore, even though appellant has forfeited his right to raise any claims of error, we will nonetheless review the sufficiency of the evidence to convict, and appellant's sentence under § 9711(h), where appellant has become a fugitive from justice, and cannot be made subject to the Court's jurisdiction. Were we to decide to delay review pending appellant's return to this jurisdiction, which in this case may be twenty years, we run the risk that, should appellant be entitled to a new trial, the Commonwealth would have a difficult time retrying him, due to the common problems associated with the passage of time.

In reviewing the sufficiency of the evidence, we must view the evidence and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, and must determine whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590 (1990). Applying this standard, we find the evidence sufficient beyond a reasonable doubt to sustain the jury's verdicts of murder of the first degree.

The evidence adduced at trial discloses the following. On the evening of September 13, 1984, Christopher Outterbridge was engaged in a conversation with his girlfriend across the street from his house at 110 West Wyoming Avenue in Philadelphia. Appellant, Roger Judge, approached the couple and began taunting Christopher. Christopher informed appellant that he did not want to fight, and as he turned to walk away, appellant struck him in the face. In response, Christopher punched appellant, knocking him to the ground; Christopher then retreated to his home. Appellant chased Christopher into his home, where appellant was confronted by Christopher's older brother, Kenneth Outterbridge. After a brief scuffle with Kenneth, appellant left.

Several times that evening, appellant returned to the Outterbridge home. On one occasion appellant told Kia Outterbridge, Christopher's younger sister, that he would be back to kill Christopher. On another occasion, appellant returned to the Outterbridge home with a friend and both appeared to be concealing weapons. Afraid of a confrontation, Christopher sought assistance from his mother, who went out on the porch to confront the men. Appellant repeatedly ordered Ms. Outterbridge to send her son outside, but Ms. Outterbridge refused, and threatened to telephone the police. Appellant left, but informed Ms. Outterbridge that he intended to return.

On September 14, 1984, the following evening, at approximately 11:45 p.m., Christopher and his friends were returning home from a nearby sandwich shop, when one of his friends briefly saw the appellant near the Outterbridge home. ⁸ When the group arrived at the Outterbridge home, they joined Christopher's sister Kia on the front porch. Moments later, appellant jumped out of the bushes, aimed his gun at Christopher, and fired five shots at the teenagers gathered on the porch. Christopher Outterbridge was shot in the back, and a friend of Christopher's sister, fifteen year old Tabatha Mitchell, was shot in the chest.

After emptying his handgun of ammunition, appellant fled on foot in the direction of Marvine Street, but reversed direction when he realized that police vehicles were arriving from that direction. As he passed back in front of the Outterbridge house, one of Christopher's friends, Calvin Whitaker, unsuccessfully attempted to apprehend appellant. Appellant fled down a back alley as Calvin repeatedly called out appellant's street name, "Dobe."

A police officer arrived on the scene moments later, after hearing gunshots from the direction of the Outterbridge house. Christopher ran down the steps bleeding profusely from his neck and mouth and begged to be taken to the hospital; Calvin stood on the porch waving his arms and shouting "It was Dobe"; and Tabatha lay on her back on the porch with a bullet hole in her chest.

The officer immediately called for police assistance and Christopher and Tabatha were transported to the hospital. While enroute to the hospital, Christopher, though barely alive, managed to tell police that "Dobe" had shot him. Soon after arriving at the hospital, both victims were pronounced dead. Christopher died from a single gunshot wound; the bullet entered the right side of his back, traveled through his right lung, through a large blood vessel, and then lodged in the soft tissue of the right side of his neck. Tabatha Mitchell's life was also ended by a single gunshot wound; the bullet entered her abdomen, traveled through her liver and pancreas, grazed her backbone, and damaged two major blood vessels. The bullet finally...