Com. v. Mason

Decision Date02 December 1986
Citation358 Pa.Super. 562,518 A.2d 282
PartiesCOMMONWEALTH of Pennsylvania v. Kim MASON, Appellant. COMMONWEALTH of Pennsylvania v. Darryl LAMAR, Appellant. COMMONWEALTH of Pennsylvania v. Eugene MILLER, Appellant. COMMONWEALTH of Pennsylvania v. Darryl FORD, Appellant. COMMONWEALTH of Pennsylvania v. Gerald JONES, Appellant. COMMONWEALTH of Pennsylvania v. Mack SMITH, Appellant.
CourtPennsylvania Superior Court

Steven Dickstein, Philadelphia, for Kim Mason.

Thomas L. McGill, Jr., Philadelphia, for Darryl Lamar.

Francis X. Nolan, Philadelphia, for Eugene Miller.

Christopher G. Bokas, Philadelphia, for Darryl Ford.

Joseph P. Zawrotny, Philadelphia, for Gerald Jones.

Vincent M. Lorusso, Philadelphia, for Mack Smith.

Robert B. Lawler, Asst. Dist. Atty., Philadelphia, for the Com.

Garold E. Tennis, Asst. Dist. Atty., Philadelphia, for the Com. in No. 1158.

Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.

DEL SOLE, Judge:

The procedural history of this case reveals that on June 13, 1979, the Philadelphia County Investigating Grand Jury of November 29, 1978 issued indictments charging each of the six Appellants with the following criminal offenses arising from two separate firebombing incidents of Philadelphia residences on December 3, 1977: three separate counts of murder; 1 two separate counts of arson, endangering persons and endangering property; 2 causing a catastrophe and risking a catastrophe; 3 and criminal conspiracy. 4

Pursuant to the Investigating Grand Jury Act (the Act), 5 a probable cause hearing was scheduled but thereafter continued pending disposition of Appellants' motions to quash which challenged the constitutionality of the Act for failure to provide a preliminary hearing following indictment. The motions were subsequently denied. However, since the Legislature had amended the Act to provide for a preliminary hearing after indictment, such a hearing was conducted at the conclusion of which Appellants were held for trial on all charges. Appellants also filed motions to dismiss based on alleged prosecutorial misconduct during the grand jury proceedings. These motions were denied.

Following the denial after hearing of Appellants' suppression motions, a jury trial commenced on June 12, 1980. On June 27, 1980, guilty verdicts were returned on all counts against all Appellants with the exception of Appellant Smith. Appellants Jones, Mason and Ford were found guilty of first degree murder whereas Appellants Lamar and Miller were convicted of second degree murder. A mistrial was declared as to Appellant Smith because the jury was deadlocked. On retrial however, Smith too was found guilty on all counts and specifically second degree murder.

Post-trial motions were filed and denied. Each Appellant was sentenced to consecutive terms of life imprisonment for the three murder convictions and consecutive sentences of imprisonment imposed for the other convictions. Timely appeals from the judgments of sentence were filed, consolidated, and are presently before this Court for review. 6

A summary of the relevant facts indicates that on the evening of December 3, 1977, members of the "Taylor Street" gang prepared to retaliate for the firebombing of a members home by the rival "Pierce Street" gang. Appellant Ford reportedly phoned the home of Fitzgerald Lawrence telling him to purchase some gasoline. Present at the Lawrence home, and on an extension phone was Alex Harper. Ford told Harper to obtain bottles sufficient for firebombs. Shortly thereafter, Ford and other members of the Taylor Street gang arrived at the Lawrence home. It was alleged that the members included Appellants Smith, Lamar, Miller, and Jones. Ford gave Lawrence keys to a car in order to obtain gasoline while Lawrence's brother Tyrone along with Harper and another individual, Keith Woodward, prepared for the arrival of the gasoline by obtaining bottles and tearing rags. Lawrence returned and the four filled six to ten "Colt 45" bottles with gas and placed rags into the bottlenecks. Ford reportedly then directed Lawrence to drive Lamar and an unidentified male to 2309 Mountain Street. Two other cars apparently went to a Gadson residence at 1330 Bancroft Street. Both homes were firebombed. At the Bancroft Street address, a woman and two children died in the fire. The Mountain Street residence failed to ignite as the bottle failed to break.

After grand jury indictment, Harper, Woodward, and both Lawrence brothers agreed to testify on behalf of the Commonwealth in return for favorable sentencing consideration on related crimes.

At trial, Fitzgerald Lawrence testified concerning the events of December 3, 1977 as well as to a conversation with Appellant Mason while both were incarcerated for unrelated crimes after the firebombings. Lawrence testified that Mason had admitted his participation in the firebombings.

Initially it is noted that:

[o]ne must either file post-verdict motions within ten days under Pa.R.Crim.P. 1123(a) or seek permission to file post-verdict motions nunc pro tunc under the Post Conviction Hearing Act as required by Pa.R.Crim.P. 1123(f). As we recently reiterated in Commonwealth v. Jackson, 336 Pa.Super. 609, 623, 486 A.2d 431, 439 (1984), "[o]ur Court will review only those issues which have been properly preserved for review, i.e., errors which have been raised specifically in written post-trial motions pursuant to Pa.R.Crim.P. 1123(a)."

Commonwealth v. Rosko, 353 Pa.Super. 307, 310, 509 A.2d 1289, 1290 (1986).

Additionally, "[w]e have not considered oral presentation adequate to preserve the issue since Commonwealth v. Blair, [460 Pa. 31, 331 A.2d 213 (1975) ]".... Commonwealth v. Gravely, 486 Pa. 194, 198 n. 1, 404 A.2d 1296 n. 1 (1979). "The only exception to this strict enforcement of the terms of Rule 1123(a) is the situation where an appellant, after failing to file proper motions, submits a brief raising alleged error and the post-verdict court, without objection, disposes of the appeal on the basis of the merits of the issues belatedly raised." Commonwealth v. Bilhardt, 269 Pa.Super. 95, 98, 409 A.2d 81, 82 (1979). This exception does not exist for cases in which post-verdict motions were filed after September 4, 1979. Id. at 95 n. 1, 409 A.2d at 82 n. 1.

Our review of the record fails to locate any written post-trial motions on behalf of Appellant Ford. He does not qualify for an exception to this rule and we therefore conclude that the issues which he attempts to raise at this time are not preserved for review and the judgment of sentence as to Appellant Ford is affirmed.

Appellants first contend the trial court erred in excluding any reference to the psychiatric history of Fitzgerald Lawrence, either through cross-examination or by independent medical testimony.

[t]he crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness's mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him. * The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime. See Commonwealth v. Repyneck, 181 Pa.Super. 630, 124 A.2d 693, allocatur refused, 181 Pa.Super. XXIV (1956).

Commonwealth v. Dudley, 353 Pa.Super. 615, 620, 510 A.2d 1235, 1238, (1986) quoting Commonwealth v. Butler, 232 Pa.Super. 283, 287-288, 331 A.2d 678, 680 (1974).

Appellants argue that Lawrence's psychological problems were of such severity that the accuracy of his recollection of the events of December 3, 1977 is questionable. To this end, Appellants' counsel attempted to introduce into evidence psychiatric records from the Philadelphia State hospital where Lawrence had been committed prior to trial. The court reviewed the psychiatric report on the record and noted that Lawrence was admitted in September 1978, discharged in November of that year and diagnosed as "schizophrenia, paranoid type with features of depression, mild mental retardation." (Trial Transcript at 2027). The court further noted that the report indicated Lawrence had been taking Thorazine prior to this commitment and that this medication should continue upon his discharge. (Trial Transcript at 2207-2208). During his commitment, there is also an indication that Lawrence denied knowing his mother, who lived with him, heard voices, and was said to have poor remote and immediate recall. (Trial Transcript at 1031, 1035). The court determined the records to be inadmissible as there was not enough in them to show that Lawrence could not remember or testify as to the events of December 3, 1977. We disagree.

Because the information contained in the psychological reports "shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime" Commonwealth v. Butler, 232 Pa.Super. at 287-288, 331 A.2d at 680, the court erred in its determination that the psychological reports were inadmissible.

Impeachment of Lawrence's testimony with evidence of his psychological problems was vital to the defense of Appellants Lamar and Smith as our review of the record indicates that Lawrence was the only individual to inculpate them. 7 See Commonwealth v. Towber, 190 Pa.Super. 93, 152 A.2d 917 (1959) (finding reversible error where evidence of mental disorder offered to impeach important witness was refused). However, we are equally convinced that impeachment of Lawrence's testimony with evidence of his psychological problems was not...

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