Com. v. Miller

• Court: Pennsylvania Supreme Court
• Writing for the Court: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.
• Citation: 572 Pa. 623,819 A.2d 504
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kenneth MILLER, Appellant.
• Decision Date: 05 September 2002

819 A.2d 504
572 Pa. 623

COMMONWEALTH of Pennsylvania, Appellee
v.
Kenneth MILLER, Appellant

Supreme Court of Pennsylvania.

Argued October 17, 2001.

Re-Submitted June 19, 2002.

Decided September 5, 2002.

Reargument Denied October 25, 2002.

819 A.2d 506

Joseph J. Marinaro, Philadelphia, for Kenneth Miller, Appellant

Catherine Marshall, Philadelphia, Robert Graci, Harrisburg, for the Com. of PA, Appellee.

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

819 A.2d 505

OPINION

Justice NEWMAN.

Kenneth Miller (Miller) appeals from the Judgment of Sentence of the Court of

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Common Pleas of Philadelphia County (trial court) that sentenced him to death following two convictions for first-degree murder. After reviewing the claims raised by Miller, we affirm the sentence of death

FACTS AND PROCEDURAL HISTORY

As part of our independent review of the record, we summarize the evidence presented at trial. Charles Love, Esq. (Love), represented Miller's uncle, Gregory Miller (Gregory) on various matters, and successfully obtained money for Gregory as the result of a variety of civil claims. Specifically, Love settled one claim against the City of Philadelphia, recovering fifteen thousand dollars ($15,000.00) for Gregory. However, Love could not distribute the entire sum to Gregory because of outstanding support orders and child support arrearages.

On the morning of February 25, 1998, Miller and Marcus Lloyd (Lloyd) met Herbert Blakeney (Blakeney) at Blakeney's house, at which time the three traveled to Gregory's home. During the ensuing conversation, Gregory spoke to the others about robbing Love at his office at 1006 Spruce Street in Philadelphia, and mentioned that anyone present at the office might have to be shot. According to the original plan, as devised by Gregory and as testified to by Blakeney, Miller was to be the shooter and Lloyd was to tie up the victims while Blakeney acted as a lookout. Gregory gave Miller a handgun and told Blakeney to go to Love's office, get a check for ten thousand dollars ($10,000.00) from the attorney, and give the check to Lloyd; Gregory instructed Lloyd to take the check to the bank and cash it. Gregory did not accompany Miller, Blakeney, and Lloyd to Love's office, but before they left for the office, Gregory told the three that the victims would have to be killed and to "leave no witnesses." (Notes of Testimony (N.T.) September 21, 1999, pp. 27-28).

En route, Miller, Blakeney, and Lloyd took turns carrying the weapon, but Blakeney ended up with it when they reached Love's office. Brian Barry (Barry), a paralegal, opened the office door, whereupon Miller, Blakeney, and Lloyd entered and Blakeney brandished the gun. Blakeney then told Love to write out a check for ten thousand dollars ($10,000.00) while Lloyd tied up Barry. Lloyd departed to cash the check at the bank. Remaining at Love's office, Miller and Blakeney passed the gun back-and-forth to each other.

Lloyd was unable to cash the check because he had insufficient identification, so he returned to Love's office and said to Love, "[y]ou know you is [sic] a dead mother f***er now." (N.T. September 21, 1999, p. 34). Miller then handed the gun to Blakeney and exclaimed that Blakeney "was a b**** ass n***er if [he didn't] kill the mother f***ers." (N.T. September 21, 1999, p. 35). Blakeney then confronted the victims in the back storage room of Love's office and shot each of them in the head. Blakeney took fifteen hundred dollars ($1500.00) from Love's person, and then Miller, Blakeney, and Lloyd fled the scene. The three parted ways temporarily. They later met at Blakeney's house, agreed to split the fifteen hundred dollar ($1500.00) "proceeds" among the three of them, and further agreed to tell Gregory that they did not obtain any money because they could not cash the check.

At approximately 12:00 p.m. on that day, February 25, 1998, one of Love's clients flagged down a police officer at 10th and Spruce Streets and informed the officer that her attorney was in need of an ambulance. The officer entered the law office and saw the bodies of Love and Barry lying face down on the floor of the storage closet, with gunshot wounds to the back of

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their heads. Love's desk ledger contained an entry made that day indicating that he had written a check for ten thousand dollars ($10,000.00). The police officer noticed two .38 caliber shell casings on the floor. Both bullets were later recovered from the victims by the medical examiner

The trial court conducted a jury trial for all three defendants, Miller, Lloyd, and Gregory, which trial lasted from September 16, 1999, until September 29, 1999. Blakeney entered into a negotiated plea agreement, at which time he pled guilty to two counts of murder in the first degree¹ and received two concurrent life sentences, in exchange for his testimony regarding the roles of Miller, Lloyd, Gregory, and himself in the chain of events leading to the deaths of Love and Barry.

The jury convicted Miller of two counts of murder in the first degree, one count of robbery,² and one count of criminal conspiracy.³ Likewise, the jury found Lloyd guilty of two counts of first-degree murder, one count of robbery, and one count of conspiracy. The jury acquitted Gregory of all homicide charges, but convicted him of robbery and related offenses.⁴ On September 30 and October 1, 1999, the trial court conducted a penalty phase hearing for the purpose of sentencing Miller to either life imprisonment or death.⁵

At Miller's penalty phase hearing, the Commonwealth sought to introduce evidence of the following aggravating circumstances:

(1) the defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim;⁶

(2) in the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense;⁷

(3) the victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses;⁸ and

(4) the defendant has been convicted of another murder committed in any jurisdiction and committed either before or at the time of the offense at issue.⁹

The trial court sustained Miller's objections to the introduction of evidence of the first two aggravating circumstances but allowed the Commonwealth to proceed on the other two aggravators. Miller's counsel proffered the following two mitigating circumstances: (1) the age of the defendant at the time of the crime;¹⁰ and (2) any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the offense (the catchall provision).¹¹

The sentencing jury found the existence of both aggravating circumstances sought by the Commonwealth and the catchall

819 A.2d 509

mitigating circumstance presented by defense counsel. The jury unanimously found that the aggravating circumstances outweighed the mitigating circumstance and imposed sentences of death for both counts of murder in the first degree. The present direct appeal ensued pursuant to 42 Pa.C.S. § 9711(h)(1), which provides that "[a] sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules."

DISCUSSION

I. Guilt Phase—Sufficiency of the Evidence

This Court is required to review the sufficiency of the evidence to sustain a conviction for first-degree murder in every case in which the trial court imposes a sentence of death. 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), rehearing denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). "When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offense beyond a reasonable doubt." Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d 958, 963 (2001).

To sustain a first-degree murder conviction, "the Commonwealth must prove that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing, and that the killing was done with deliberation." Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 196 (Pa.1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). "Specific intent to kill can be proven where the defendant knowingly applies deadly force to the person of another." Id. "Moreover, we have held that the use of a deadly weapon on a vital part of a human body is sufficient to establish the specific intent to kill." Weiss, 776 A.2d at 963 (citing Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90, 95 (1995), cert. denied, 516 U.S. 854, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995)). "[T]he Commonwealth can prove the specific intent to kill through circumstantial evidence." Weiss, 776 A.2d at 963 (citing Commonwealth v. Kenneth Brown, 551 Pa. 465, 711 A.2d 444, 449 (1998)). We have held that where a defendant is not the actual slayer, but instead an accomplice or co-conspirator, to be guilty of first-degree murder, that defendant must also have had the requisite specific intent to kill. Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 876-877 (2000).

18 Pa.C.S. § 306(a) provides that "[a] person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." Pursuant to 18 Pa.C.S. § 306(b)(3), "[a] person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the...