Com. v. McNeil

• Decision Date: 25 June 1996
• Citation: 679 A.2d 1253,545 Pa. 42
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Christopher McNEIL, Appellant. . Re
• Court: Pennsylvania Supreme Court

Page 1253

679 A.2d 1253

545 Pa. 42

COMMONWEALTH of Pennsylvania, Appellee, v. Christopher McNEIL, Appellant.

Supreme Court of Pennsylvania.

Reargued Jan. 22, 1996.

Decided June 25, 1996.

John P. Cotter, Philadelphia, for C. J. McNeil.

Catherine Marshall, Karen A. Brancheau, Hugh J. Burns, Jr., Robert A. Graci, Office of Attorney General, for Com.

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

OPINION

ZAPPALA, Justice.

This is a direct appeal pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h). Following a jury trial, Appellant, Christopher J. McNeil, was found guilty of murder in the first degree, two counts of robbery and one count each of recklessly endangering another person and possession of an instrument of crime. He was sentenced to death for the murder conviction. ¹ The jury found that the aggravating circumstance of committing the killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), outweighed the mitigating circumstance of acting under the influence of extreme mental or emotional disturbance, 42 Pa.C.S. § 9711(e)(2).

The record establishes that late in the evening of December 4, 1990, the victim, John Airasian, and Wanda Douglas were sitting in the victim's parked van at 51st Street and Lancaster Avenue in Philadelphia. The two had known each other for four or five months. They had stopped at a gas station to purchase matches. Appellant approached the victim and asked for some change. The victim refused to give Appellant money and Appellant stated, "You'll regret it."

The victim and Douglas then drove to Parkside Avenue and parked near basketball courts to drink beer and smoke cocaine. Douglas then noticed Appellant, whom she had known from the neighborhood, walk past the van, stop and then walk back, approaching the van from the driver's side. Douglas told the victim that Appellant was the same man who wanted money earlier. Appellant again asked the victim for some change. The victim responded that he had none. Appellant then fired a shot through the closed window, striking the victim in the head. When Appellant fired a second shot, the victim collapsed sideways and cried, "Help, help, I think I am dying!"

Appellant ordered Douglas to the passenger seat and threatened to kill her if she did not comply. The victim stirred as Douglas was moving inside the van and Appellant shot him again at least two more times. Appellant then went through the victim's jacket looking for money or valuables and ordered Douglas to go through the victim's pockets. While searching the victim, Appellant asked Douglas, who is black, "What are you doing with this white man?" Fearful of disclosing that the victim was her friend, she replied, "Trying to do the same thing [you are], trying to get paid." (N.T. 3/30/92, pp. 87-94).

Appellant began driving the van and debated aloud about letting Douglas go. He then stole a gold chain from the victim's neck and a charm from Douglas. Appellant ultimately stopped near a gas station, warned Douglas not to tell anyone about the killing, and let her out. After Douglas exited the van, she reported the incident to a security guard in a nearby apartment building. She did not reveal Appellant's identity at that time. The police arrived and Douglas reported the location of the murder.

A short time later, an officer discovered the van with the victim partially hanging out from the rear and radioed for back-up. When medical assistance arrived, the victim showed no signs of life. An autopsy later revealed that the victim had died from four close-range gunshot wounds, each of which was deemed fatal. ² All four projectiles were recovered from the body. It was the medical examiner's opinion that the muzzle of the gun had been held about six inches from the victim's body and no more than 24 inches away.

Appellant was arrested for the murder and was positively identified as the shooter by Douglas. At trial, the Commonwealth called Wanda Lytle as a witness. Lytle testified that she was driving on Parkside Avenue near the park on the night of the murder and saw Appellant standing next to a van with two people inside. Lytle stated that she had known Appellant since childhood, but did not know Douglas. She believed that the female in the van was another woman that she knew. Lytle further testified that when she returned from the grocery store about one hour later, the van was no longer there but police were in the area.

Following his conviction, Appellant's counsel filed post-trial motions and was permitted to withdraw. Current counsel filed supplemental post-trial motions, raising claims of ineffective assistance of counsel. The trial court denied those motions and formally sentenced Appellant to death.

Pursuant to our obligation to review the sufficiency of the evidence in a case in which the death penalty has been imposed, 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 (1983), we conclude that the eyewitness testimony and corroborating evidence are clearly sufficient to support the first degree murder conviction.

Appellant first argues that the court erred in refusing a jury view of the crime scene. He contends that a view of the crime scene would establish that Commonwealth witness Wanda Lytle, who placed Appellant at the murder scene at the relevant time, was not in a position to identify him. ³

The decision whether to grant a request for a jury view is within the discretion of the trial judge. Pa.R.Crim.P. 1112. Absent an abuse of discretion, the denial of a request for a jury view will not be overturned. Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978). The trial court stated that it denied the request because it believed that the conditions of the scene at the time of trial were not reasonably similar to the conditions at the time of the murder. We find no abuse of discretion. Moreover, it appears that Appellant's argument relates more to Lytle's credibility than to the physical configuration of the street.

Appellant's remaining arguments challenge the effectiveness of trial counsel. In order to succeed on a claim of ineffective assistance of counsel, it must be determined that the underlying claim is of arguable merit, that counsel had no reasonable basis for his performance, and that the defendant was thereby prejudiced. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant first contends that counsel was ineffective for failing to object to the prosecutor's peremptory striking of six black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant asserts that this is a "racial case" since a black man is charged with the murder of a white man. He concludes that the racial makeup of the jury--ten white persons and two black persons--was favorable to the Commonwealth and that his trial counsel should have objected to the "inconsistent" striking of black jurors. ⁴

To prevail on a Batson challenge, a defendant must first establish a prima facie case by showing that the prosecutor discriminated in the jury selection process based on evidence of the use of peremptory challenges. Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993); Batson v. Kentucky, supra. The trial court rejected Appellant's claim, concluding that he had not made any prima facie showing that the strikes were discriminatory, noting only that the jurors were stricken. Appellant did not establish the race of potential jurors who were acceptable to the Commonwealth, but peremptorily excluded by the defense, or the race of all of those who were removed by the prosecution. Appellant also did not establish that counsel's failure to object was unreasonable or that he was thereby prejudiced. Appellant failed to ask trial counsel, who was called to testify on other matters during post-trial motions, why he had not raised a Batson claim at the appropriate time during jury selection.

Furthermore, although the law is clear that a prosecutor need not state the reasons for his peremptory challenges until the defense has established a prima facie case of discrimination, the prosecutor in the instant case volunteered race-neutral reasons, which the trial court credited. ⁵ Thus, this claim lacks arguable merit and counsel cannot be deemed ineffective for failing to pursue it. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Appellant next contends that counsel was ineffective for failing to object when Detective Hughes testified that the victim's family had become friendly with Wanda Douglas and when the prosecutor referred to this testimony in his closing argument. Appellant argues that such testimony was an improper appeal to the emotions of the jury that bolstered Douglas's credibility. He concludes that counsel had no reasonable basis for failing to object and that he was prejudiced thereby.

The Commonwealth elicited the detective's brief comment as a response to repeated defense attacks on Douglas's character and credibility. The defense portrayed Douglas as a prostitute and cocaine addict who was not a friend of the victim but was rather selling her services to him. As the trial court properly found that there was a legitimate basis for the prosecutor's comments, counsel cannot be found ineffective for failing to object. Moreover, Appellant clearly has not established that the result of his trial would have been different without the challenged testimony or the prosecutor's reference to it in his closing argument. Commonwealth v. Pierce, supra.

Appellant also claims that trial counsel was ineffective for failing to object to Commonwealth evidence regarding his arrest for shoplifting nine days after the murder and for failing to ask for a cautionary instruction. The officer who arrested Appellant for shoplifting noticed that the backs of Appellant's hands...