Com. v. Marshall

• Decision Date: 08 February 1994
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jerry MARSHALL, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 1100

633 A.2d 1100

534 Pa. 488

COMMONWEALTH of Pennsylvania, Appellee, v. Jerry MARSHALL, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 7, 1992.

Decided Nov. 5, 1993.

Reargument Denied Feb. 8, 1994. ^*

[534 Pa. 492] Susan V. Kahn, Haverford, for appellant.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Div., Norman Gross, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

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

OPINION

MONTEMURO, Justice.

Jerry Marshall, Jr. was convicted of two counts of murder in the first degree after a jury trial in the Court of Common Pleas of Philadelphia County, Pennsylvania. Finding that the murder was accompanied by two aggravating circumstances and no mitigating circumstances, the jury sentenced appellant to death. Post-trial motions were denied, and this court obtained jurisdiction pursuant to 42 Pa.C.S. § 9711(h) and Pa.R.A.P.1941.

The facts of this case, as adduced at trial, are as follows. On the morning of May 20, 1987, appellant and his wife, Donna, engaged in an argument which was overheard by Donna Marshall's nine year old daughter, Shanisha Dunbar. Shanisha woke her younger sister, Ayesha, and told her to go and see what was happening. Ayesha went to the hallway, and looked in her mother's bedroom. Inside the bedroom, she saw her mother lying on the floor, tied to the side of the bed with a telephone cord, being choked by appellant. When Ayesha told her sister what was happening, Shanisha ran to the kitchen, and returned to her bedroom with a knife which she placed under her pillow.

Appellant, seeing what Shanisha had done, went after her, put her in the bedroom with her mother, and shut the door. Ayesha then heard what she described as heads banging on the floor, and someone spitting up. Shortly thereafter, appellant emerged from the bedroom, and closed the door behind him. Ayesha saw him wash blood from his hands. He then gathered Ayesha and her two other siblings and left the apartment, telling the children that their mother was sick, and that Shanisha was helping her.

Ayesha testified that, as appellant was driving the children to another location, he stopped the car at least two times to stick a needle in his arm. Appellant drove the children to the home of a woman friend, Lyla Jenkins. He left the children with Ms. Jenkins between 10:00 and 12:00 in the morning, telling her he would be back for them shortly. Appellant did not return until the next morning. The children stayed with Ms. Jenkins until Friday, May 22, when they were picked up by members of Donna Marshall's family.

After dropping the children off with Ms. Jenkins, appellant met Scotty Brecher. Mr Brecher and another friend were injecting cocaine inside of Mr. Brecher's van. Appellant told Mr. Brecher that he had killed his wife and stepdaughter. He explained that he was trying to get some money from his wife's purse while she was sleeping that morning, but that she woke up and caught him. The couple then got into an argument and appellant told Mr. Brecher that he beat her to death. He further elaborated that because his stepdaughter, Shanisha, had seen the incident, he had killed her to "shut her the f--- up." He stated that he had used a hammer to commit the murders, and that he sanitized it after he was finished. According to Mr. Brecher, appellant was emotionless when he recited the gruesome details of the murders. Because of this lack of emotion, Mr. Brecher did not believe that appellant was telling the truth.

Later that evening, around midnight, appellant and Mr. Brecher, after injecting some more cocaine, went to appellant's apartment building. Before entering the apartment, appellant asked Mr. Brecher if he was ready for what he was about to see. Appellant then opened the bedroom door and Mr. Brecher saw the bodies of Donna Marshall and her daughter, Shanisha. Appellant stepped over the bodies to remove a television set which he later traded for cocaine.

The next morning, appellant and Mr. Brecher sold Donna Marshall's car so that they could purchase more cocaine. Finally, on Friday morning, appellant decided that he should flee the city. Mr. Brecher withdrew money from his bank account and gave it to appellant to aid him in his flight. Thereafter, appellant headed for South Carolina.

On the same morning, police found the bodies of Donna Marshall and her daughter, Shanisha. An autopsy determined that Donna Marshall had been strangled, and that Shanisha died of a fractured skull, brain hemorrhage, cerebral swelling, and a laceration of her heart. Shanisha also had incurred multiple injuries of the neck, and a puncture wound of her right cheek.

On May 23, 1987, an arrest warrant was issued for appellant who was finally located in Charleston, South Carolina in February 1988, and was returned to Philadelphia on April 12, 1988. At his jury trial in October of 1989, appellant conceded that he had killed both his wife and stepdaughter, but contended that, because of his drugged condition at the time of the murders, he had not intended to do so. Appellant did not present any evidence in support of this contention, but instead relied on the testimony of the Commonwealth's witnesses to establish his drugged condition. Finding that there was no evidence to support his claim that he was actually in a drugged state at the time of the murders, the trial court refused to instruct the jury on voluntary intoxication. After three days of testimony, the jury returned a verdict of guilty of two counts of first degree murder, and thereafter sentenced appellant to death.

Through appellate counsel, appellant asserts numerous contentions of trial error and ineffective assistance of counsel. Although he does not raise the issue of the sufficiency of the evidence, we are required to review the sufficiency of the evidence to sustain a conviction in all capital cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982). In making such a review, we are required to view all of the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth as the verdict winner, and 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, 567, 574 A.2d 590, 592 (1990). After a careful review of the record, and as demonstrated by the facts as set forth above, we find that the evidence was sufficient to find every element of the crime beyond a reasonable doubt.

The first argument raised by appellant is that his trial counsel was ineffective for not challenging or striking a juror who had experienced the murder of his future son-in-law, and the near murder of a child. During voir dire a potential juror (later selected to sit on the jury) stated that, two and one half years prior to trial, his daughter's fiance and his 18 month old granddaughter were the victims of a robbery. The fiance was shot and killed, but the infant was unharmed. The juror did not actually witness the crime, but saw the victims at the hospital following the incident. Appellant argues that the failure of his trial counsel to challenge or strike this juror deprived him of effective assistance of counsel.

The standard for determining ineffective assistance of counsel in capital cases, as in all criminal cases, is whether the underlying claim is of arguable merit, whether the course chosen by counsel had some reasonable basis designed to effectuate his client's interest, and whether the defendant has demonstrated prejudice. Commonwealth v. Basemore, 525 Pa. 512, 582 A.2d 861 (1990), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992). Trial counsel is presumed to have rendered effective assistance and appellant has the burden of proving otherwise. Commonwealth v. March, 528 Pa. 412, 598 A.2d 961 (1991).

Instantly, we find that appellant's underlying claim is devoid of arguable merit. The juror was asked if, in light of his experience, he could give appellant a fair and impartial trial. He responded that he could. He was further asked if he could follow the judge's instructions and be fair and impartial to all parties. The juror responded that, without a doubt, he could certainly do so. Given the juror's unequivocal response that he could give appellant a fair and impartial trial and follow the judge's instructions, the trial court could have properly refused to excuse this juror for cause if requested to do so. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987) (trial court could properly refuse to excuse a juror for cause whose friend had been the victim of a homicide where the juror stated that she was willing and able to be impartial). See also Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). Accordingly, trial counsel could not be ineffective for failing to have this juror excused for cause.

Trial counsel was also not ineffective for failing to use a peremptory challenge against this juror. Even assuming arguendo that the claim has arguable merit, the ineffectiveness claim fails because counsel had a reasonable basis for his decision not to strike the juror. At the PCRA hearing, trial counsel testified that he felt that, given the juror's responses, he could give appellant a fair trial. He also believed that he had developed a rapport with the juror because the two men had joked about his name during voir dire. Additionally, during the voir dire, trial counsel and appellant had a discussion as to the acceptability of this juror. Thus, since counsel was able to articulate a reasonable basis for his tactical decision not to use a peremptory strike against this juror, he cannot be found ineffective. Commonwealth v....