Com. v. Kennedy

• Decision Date: 20 November 2008
• Docket Number: No. 526 CAP,526 CAP
• Citation: 959 A.2d 916
• Parties: COMMONWEALTH of PENNSYLVANIA, Appellee v. Christopher KENNEDY, Appellant.
• Court: Pennsylvania Supreme Court

959 A.2d 916

COMMONWEALTH of PENNSYLVANIA, Appellee v. Christopher KENNEDY, Appellant.

No. 526 CAP

Supreme Court of Pennsylvania.

Submitted April 7, 2008.

Decided November 20, 2008.

David Scott Rudenstein, Esq., for Christopher Kennedy.

Hugh J. Burns, Esq., Amy Zapp, Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Justice SAYLOR.

This is a direct appeal from a sentence of death imposed upon Appellant, Christopher Kennedy, for the first-degree murder of Michael Richardson.

Background

On January 19, 2003, Appellant, James Richardson, his brother Jamaar Richardson, Lavar Brown, and Ronald Vann planned to rob a drug store at which Jamaar Richardson worked.¹ According to plan, Appellant entered the store armed with a .44 caliber revolver, approached Mr. Richardson, who was the manager, and shot him in the leg. The store security guard and cashiers fled the building, and Appellant's coconspirators also fled, with most having never entered the premises.² Appellant proceeded to drag the victim to the front office, where there were two safes, one of which the coconspirators believed to contain $40,000 to $50,000. Officers responding to the scene heard a gunshot from within the store; observed Appellant inside the store; saw Appellant outside while in possession of the .44 caliber pistol and a bag containing approximately $2,200 taken from one of the store safes; and apprehended Appellant in the vicinity. Mr. Richardson was found in the office where Appellant left him, having suffered a fatal gunshot wound to the left side of his head.

Appellant was tried jointly with Brown and the Richardson coconspirators, who were charged, inter alia, with felony murder. Among other witnesses, Vann testified for the Commonwealth, describing the planning and execution of the robbery from his vantage. Notably, Vann indicated that, during the planning, Appellant said that if Mr. Richardson resisted he would kill him. Store personnel testified that, of the two safes in the manager's office, Mr. Richardson would have had access to only one-the other was accessible only by armored-car personnel. Although there were no witnesses to the actual killing, store personnel related that they remained in the vicinity and did not witness anyone enter or exit the storefront; the responding officers indicated that they did not see anyone other than Appellant exit the rear of the store; and one of the first officers to enter the store stated that the only person found there besides the victim was a patron who had hidden in a bathroom.

The Commonwealth also presented a ballistics expert who testified, over Appellant's objections, that the .44 caliber handgun carried by Appellant was primarily used in hunting "deer-size animals" to accomplish deep penetration. The expert also explained that a dried liquid substance was found on the muzzle of the revolver, which a DNA expert confirmed was bodily fluid matching Mr. Richardson's profile. A medical examiner opined, based on the character of gunpowder stippling around the wound to the victim's head, that the pistol that fired the shot would have been approximately twelve inches away at the time of discharge.

Appellant testified in his defense. He admitted that he perpetrated the robbery, shot Mr. Richardson in the leg, and brought him to the office to open the safe. Appellant, however, denied shooting the victim a second time and disputed the Commonwealth's contention that his codefendants were involved in the planning and execution of the robbery. Instead, Appellant claimed that he acted at the suggestion of a friend of his brother's, whom he could not identify.

During Appellant's testimony, the trial court called a recess for lunch, at which time the prosecutor requested that Appellant be directed not to discuss the case with anyone, including his counsel. Counsel indicated that, although he did not intend to speak with Appellant about the case, he believed that decisional law required that he and Appellant be permitted to confer. In response, the court asked counsel to provide the relevant law before or during the lunch hour to support his position. According to the trial court, during the seventy-six-minute recess, counsel did not provide any authority; nevertheless, Appellant was permitted to discuss the presentation of character witnesses with his attorney before resuming his testimony.

In his closing argument, the prosecutor summarized the evidence, positing that Appellant shot the victim when he was unable to open the second safe believed to contain $40,000 to $50,000. In two instances during the summation, the prosecutor referred to Appellant as a "homicidal predator."

The jury returned a verdict of guilt on the charges of first-degree murder, robbery, conspiracy, and weapons violations. At the penalty phase, Appellant was represented by co-counsel, who was appointed nineteen days before the start of the trial. The Commonwealth offered as an aggravating circumstance that the killings occurred during the perpetration of a felony, namely, robbery. See 42 Pa.C.S § 9711(d)(6). Appellant offered as mitigating circumstances claims that he lacked a significant history of prior convictions, see 42 Pa.C.S. § 9711(d)(6); he was under the influence of extreme mental or emotional disturbance, see 42 Pa.C.S. § 9711(e)(2); his capacity to conform his conduct to the requirements of law was substantially impaired, see 42 Pa.C.S. § 9711(e)(3); and his age at the time of the offenses should be regarded as mitigating, see 42 Pa.C.S. § 9711(e)(4), as well as pursuing the catch-all mitigator, see 42 Pa. C.S. § 9711(e)(8). Appellant presented testimony of family members, friends, and a mental-health expert to support the asserted mitigators. Ultimately, the jurors found that the one aggravating circumstance unanimously found—that the killing was committed in the perpetration of a felony—outweighed the sole mitigating circumstance found by any juror—the catch-all mitigator. Accordingly, the jury set the penalty at death. See 42 Pa.C.S. § 9711(c)(1)(iv).

Shortly thereafter, Appellant filed a motion for extraordinary relief, requesting that the death sentence be overturned or, in the alternative, that he be awarded a new penalty hearing.³ The trial court denied Appellant's motion and formally imposed the sentence of death for first-degree murder, as well as lengthy terms of incarceration for his other offenses. After a substitution of counsel, post-sentence motions were considered on a nunc pro tunc basis and denied.

Presently, Appellant advances six claims, challenging the sufficiency and weight of the evidence; the trial court's decision to prohibit conferral during recess; the ballistics expert's testimony concerning the impact of the murder weapon upon an animal; the prosecutor's characterization of Appellant as a homicidal predator; and the conduct of trial within a brief period of time after the appointment of mitigation counsel.

Sufficiency and Weight of the Evidence

Appellant's first challenge is to the sufficiency of the evidence to support the first-degree murder. Appellant concedes that he perpetrated the robbery and shot Mr. Richardson's leg, but he maintains that there was insufficient evidence to establish that he fired the fatal shot. In this regard, Appellant emphasizes that there was no agreement among the conspirators to kill Mr. Richardson; he never admitted to perpetrating the killing; and no one observed him in the act. Appellant maintains that the jury must have inappropriately inferred that he was the killer, although several coconspirators were present at the location, who could have fled during the confusion ensuing after the initial gunshot. Appellant also argues that his concession that he shot the victim in the leg cannot establish that he killed the victim, as the Commonwealth did not prove that such wound would have been a fatal one.

To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill. See 18 Pa.C.S. § 2501, 2502(a); Commonwealth v. Sanchez, 589 Pa. 43, 58, 907 A.2d 477, 486 (2006) (citing Commonwealth v. Collins, 550 Pa. 46, 50, 703 A.2d 418, 420 (1997)). When reviewing whether the evidence was sufficient to support a jury's findings to this effect, this Court determines whether the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to enable a reasonable jury to find every element of the crime beyond a reasonable doubt. See Commonwealth v. Markman, 591 Pa. 249, 269, 916 A.2d 586, 597 (2007) (citing Commonwealth v. Watkins, 577 Pa. 194, 208, 843 A.2d 1203, 1211 (2003)). In applying this standard, we bear in mind that the Commonwealth may sustain its burden by means of wholly circumstantial evidence; that the entire trial record should be evaluated and all evidence received considered, whether or not the trial court's rulings thereon were correct; and that the trier of fact, while passing upon the credibility of witnesses and the weight of the proof, is free to believe all, part, or none of the evidence. See Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032-33 (2007); Commonwealth v. Chmiel, 585 Pa. 547, 574, 889 A.2d 501, 517 (2005).

In the present case, certainly Appellant's admitted conduct in intentionally shooting Mr. Richardson in his leg as part of a robbery scheme demonstrates the degree of his regard for the victim's health and safety. By Appellant's own admission, he was squarely in a position to have committed the killing in close temporal proximity to the shooting. Testimony from store personnel, coconspirators, and the responding officers tended to discount the possibility of anyone else having shot the...