Com. v. Kemp

• Decision Date: 22 June 2000
• Citation: 753 A.2d 1278,562 Pa. 154
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Matthew KEMP, Appellant.
• Court: Pennsylvania Supreme Court

753 A.2d 1278

562 Pa. 154

COMMONWEALTH of Pennsylvania, Appellee, v. Matthew KEMP, Appellant.

Supreme Court of Pennsylvania.

Argued February 1, 2000.

Decided June 22, 2000.

Reargument Denied August 2, 2000.

George Henry Newman, Philadelphia, for Matthew Kemp.

Catherine Marshall, Philadelphia, for Commonwealth.

Robert A. Graci, Harrisburg, for Office of Attorney General.

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

OPINION

ZAPPALA, Justice.

This is a direct appeal¹ from the conviction and sentence of death by the Philadelphia County Common Pleas Court. On April 22, 1998, a jury convicted Appellant of first degree murder, robbery, carrying a firearm on a public street, possessing an instrument of crime, and criminal conspiracy. After a penalty hearing, the jury returned a sentence of death on April 24, 1998. We now affirm that conviction and sentence for the reasons that follow.

Although Appellant does not raise the issue, we must examine the sufficiency of the evidence presented against Appellant, as we are mandated to do in all cases where the penalty of death has been imposed. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982)

.

In doing so, this Court must determine whether the evidence was sufficient to establish that the fact finder could have reasonably determined that all of the elements of the offense were proved beyond a reasonable doubt. Commonwealth v. Michael, 544 Pa. 105, 674 A.2d 1044, 1047 (1996). We view all evidence and reasonable inferences drawn from that evidence in the light most favorable to the verdict winner, here, the Commonwealth. Id., see also Commonwealth v. Mason, 559 Pa. 500, 741 A.2d 708 (1999),

petition for cert. filed, April 10, 2000 (No. 99-9067).

In order to sustain a conviction for first-degree murder, the Commonwealth must establish that a human being was unlawfully killed, that the defendant did the killing, that the killing was willful, deliberate, premeditated, and the defendant acted with the specific intent to kill. See 18 Pa.C.S. §§ 2501-2502(a); see also Mason, 741 A.2d at 711-12

.

The specific intent to kill may be shown by the use of a deadly weapon on a vital part of the body. See Commonwealth v. Butler, 446 Pa. 374, 288 A.2d 800, 802 (1972)

. Furthermore, any element of first-degree murder may be shown by circumstantial evidence alone. See Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1340 (1995).

Testimony shows that the victim died at the Hospital of the University of Pennsylvania in the morning hours of September 5, 1996. N.T. 4/20/98 at 12-15. The victim's father and uncle positively identified the victim as Gregory Fells. N.T. 4/21/98 at 9. Dr. Ian Hood, the deputy medical examiner for the City of Philadelphia, testified that his post mortem examination of the victim showed that the victim suffered four gunshot wounds. N.T. 4/20/98 at 160. At least one of the four wounds suffered by the victim was inflicted at close range. Id. That wound tore the victim's heart in two and was inescapably fatal. Id. at 166. The other wounds punctured other organs, including the victim's spine, a wound that by itself would have resulted in at least temporary paralysis. Id. at 164. While it was impossible to determine the order in which the wounds were received, the relatively close range of the shot that pierced the victim's heart indicated that it was probably fired either first or last. Id. at 165.

An admitted co-conspirator to this crime, Wilbert "Sweet Pea" Golden, cooperated with the District Attorney and offered testimony against Appellant pursuant to a plea agreement in which Golden pled guilty to third degree murder. The memorandum of the agreement between the Commonwealth and Golden was read to the jury. N.T. 4/20/98 at 53-60.

Golden testified that he knew both the victim and Appellant. He met Appellant while both were in jail three months prior to the killing. Appellant and Golden both sold drugs out of the same house near 56th Street and Chester Avenue in Philadelphia. They spent the day prior to the murder using cocaine and heroin with the victim and others at this house. Around midnight, the victim left the house; when he returned, the remaining occupants of the house expressed that he was no longer welcome there because he was relatively unknown to the occupants and because there were weapons and drugs in the house. Later, the victim walked past the house alone, without saying a word to those congregated there. N.T. 4/20/98 at 72. Appellant asked Golden where Golden kept his weapon and after Golden replied, Appellant retrieved the weapon. Id. at 73. Appellant then left the house walking in the direction that the victim had gone shortly before. Approximately five minutes later, Golden heard a number of gunshots. Another ten minutes later Appellant reappeared, carrying the weapon in one hand and the distinctive "Gregg" necklace that the victim had been wearing, in the other hand. Golden then hid the weapon and the jewelry in the house. Id. at 74. Golden testified that a couple of days later he sold the gun and split the proceeds of that sale with Appellant. Id. at 76-77. The next day Golden and Appellant traded the "Gregg" necklace for approximately $100 worth of heroin, which they proceeded to use, sharing with some other acquaintances. Id. at 79. Golden also testified that he questioned Appellant about the events that transpired in the morning of September 5, 1996. Golden stated that "[Appellant] told me that the guy didn't want to give it to him, so he shot him." Id. at 80.

Other witnesses included Mynell Buie, Thomas Kennedy, David Anderson, and Edith Boozer. Buie testified that she was in a relationship with Appellant at the time of the killing, that Appellant had admitted to shooting someone on the morning after the killing, and that he left the Commonwealth approximately a week after the killing. N.T. 4/17/98 at 56-77. Kennedy testified that he had accompanied the victim to the house on Chester Avenue earlier in the evening. Id. at 15. He testified that the victim was wearing a gold chain with a pendant that said "Gregg" on it on that night. Id. at 18. He also testified to Appellant's erratic behavior immediately following the shooting. Id. at 22. Anderson testified that Appellant also told him that he had not wanted to kill the victim, but did so because the victim was trying to run during the robbery attempt. Id. at 116. Anderson also described Appellant's sale of the handgun used in the killing. Id. at 118. Boozer testified that Appellant passed her on the street, immediately before she heard a number of gun shots, and then Appellant passed her again returning from the direction in which she had just heard the shots. N.T. 4/16/98 at 83-106

Based upon this evidence presented at trial and the reasonable inferences drawn from this evidence, we hold that the evidence was sufficient to sustain a verdict of first degree murder.

Petitioner alleges several instances of prosecutorial misconduct, which he argues merit a new trial. A prosecutor is generally allowed to vigorously present and argue his case, as long as the comments are supported by evidence and contain inferences which are reasonably derived from that evidence. See Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 231 (1995); citing Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101, 1109 (1988)

. It is well-settled law that attorneys' statements or questions at trial are not evidence. See Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544, 562 (1990). The focus of this Court's consideration of claims regarding prosecutorial misconduct is to determine whether the defendant was deprived of a fair trial and not whether the defendant was deprived of a perfect trial. LaCava, 666 A.2d at 231,

citing Commonwealth v. Holloway, 524 Pa. 342, 572 A.2d 687 (1990). Thus, prosecutorial remarks constitute reversible error only where the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. LaCava, 666 A.2d at 231,

citing Holloway, 572 A.2d at 693.

Initially, we note that prior to closing arguments the trial court instructed the jury that arguments are not evidence, that the jurors must resolve discrepancies, and that during deliberations, they must draw their own inferences guided by their own recollections. N.T. 4/21/98 at 68. The court also issued a curative instruction which stated that the jury was not to consider evidence of Appellant's drug use and evidence of Appellant's prior incarcerations as proof that Appellant committed the charged crimes. N.T. 4/17/98 at 73. The court explained that the purpose of that evidence was merely contextual. Id.

We first discuss Appellant's allegations of prosecutorial misconduct during the guilt phase. The prosecutor's closing statement contained references to Appellant's drug usage, drug transactions, and Appellant's association with other persons who purchased, sold, or abused illegal drugs. Appellant argues that this was irrelevant and improper, citing to our decisions in LaCava and Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991). We do not believe that the present case is analogous to the highly prejudicial prosecutorial statements made in LaCava and Chambers.

In LaCava, this Court affirmed the appellant's conviction, but vacated the sentence of death because the prosecutor used his closing argument of the guilt phase to

turn the jury's sentencing of appellant into a plebiscite on drugs and drug dealers and their destructive effect on society. The prosecutor attempted to expand the jury's focus from the punishment of appellant on the basis of one aggravating circumstance ... to punishment of appellant on the basis of society's victimization at the hands of drug dealers. The essence of the prosecutor's

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