Com. v. Natividad

• Decision Date: 25 June 2001
• Citation: 565 Pa. 348,773 A.2d 167
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant.
• Court: Pennsylvania Supreme Court

773 A.2d 167

565 Pa. 348

COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant.

Supreme Court of Pennsylvania.

Argued October 18, 1999.

Decided June 25, 2001.

Donald M. Padova, Philadelphia, for appellant, Ricardo Natividad.

Catherine Marshall, Hugh J. Burns, Jr., Philadelphia, for appellee, Com.

Robert A. Graci, Harrisburg, for appellee, Office of Atty. Gen.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

CAPPY, Justice.

This is a direct appeal from the sentence of death imposed by the Court of Common Pleas of Philadelphia County. The Supreme Court of Pennsylvania has appellate jurisdiction over direct appeals from the imposition of a sentence of death. 42 Pa. C.S. §§ 722(4) and 9711(h)(1).

In the early morning hours of November 9, 1996, Michael Havens was robbed at gunpoint and his dark blue Lincoln was stolen. On the night of November 9, 1996, Robert Campbell was shot during a robbery; the shooter fled in a dark Lincoln. Appellant was charged in separate indictments for the robbery of Michael Havens and the murder of Robert Campbell. The two indictments were consolidated for trial. On November 10, 1997, a jury convicted appellant of first degree murder in the death of Robert Campbell. 18 Pa.C.S. § 2502(a). Appellant was also convicted of carrying a firearm on a public street, 18 Pa.C.S. § 6108, two counts of possession of an instrument of crime, 18 Pa.C.S. § 907, two counts of robbery, 18 Pa.C.S. § 3701, one count of robbery of a motor vehicle, 18 Pa.C.S. § 3702, kidnapping, 18 Pa.C.S. § 2901, and criminal conspiracy, 18 Pa.C.S. § 903.

At the penalty phase, the jury found two aggravating circumstances: that the killing occurred while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); and that the defendant had a significant history of felony convictions involving the use or threat of violence, 42 Pa.C.S. § 9711(d)(9). The jury found one mitigating circumstance, the life history of the defendant, 42 Pa.C.S. § 9711(e)(8). The jury determined that the aggravating circumstances outweighed the mitigating circumstance and rendered a verdict of death. Post verdict motions were denied and the trial court formally imposed the sentence of death for the conviction of murder in the first degree. Additional sentences were imposed at the remaining charges.¹ An automatic direct appeal followed from the judgment of sentence.

Although appellant has not specifically challenged the sufficiency of the evidence supporting the conviction of first degree murder, in all cases where the death penalty has been imposed, this Court automatically conducts such a review. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). When reviewing the sufficiency of the evidence, we must determine whether the evidence and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, support the jury's finding that all elements of the offense have been established beyond a reasonable doubt. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). The evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the accused did the killing, and that the killing was done with premeditation or deliberation. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (1991). The Commonwealth may prove specific intent to kill by circumstantial evidence. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 297 (1996). The specific intent to kill may be proven by the use of a deadly weapon on a vital part of the victim's body. Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (1995).

The evidence presented at trial established appellant's involvement in certain activities beginning at 2:00 a.m. on November 9, 1996 and continuing through to approximately 11:00 p.m., November 9, 1996. About 2:00 a.m. on November 9, 1996, Michael Havens stopped to get a sandwich at Philly's Famous Cheesesteaks at the intersection of Island and Elmwood Avenues in Philadelphia. (Notes of testimony, hereinafter "N.T.", 11/5/97 p. 147-148). Upon returning to his car with the sandwich, Mr. Havens was approached by two men. (N.T. 11/5/97, p. 149). Mr. Havens' car was a dark blue Lincoln that he recently had purchased. (N.T. 11/5/97, p. 146). As Mr. Havens was entering the combination to unlock the front driver's door of the Lincoln, appellant interrupted Mr. Havens by pointing a stainless steel revolver with rubber grips at him. (N.T. 11/5/97, p. 149). Another man, acting in concert with appellant, approached Mr. Havens at the same time, standing behind him while appellant faced him with the gun. Mr. Havens gave his wallet and car keys to appellant. Appellant ordered Mr. Havens into the car. When Mr. Havens hesitated, appellant threatened to kill him in the parking lot if he refused to get into the car.

Mr. Havens sat in the back seat of the car. Appellant sat in the front seat of the car on the passenger side. Appellant sat facing Mr. Havens, with the gun aimed at Mr. Havens throughout the time they were in the car. Appellant's accomplice drove the vehicle. (N.T. 11/5/97, p. 149-154). Over the next fifteen to twenty minutes, appellant repeatedly threatened to shoot Mr. Havens while demanding more money from him. Mr. Havens gave appellant and his accomplice the cash from his pocket and begged to be released from the vehicle. Appellant requested Mr. Havens' money access card and that Mr. Havens access the account to get them additional funds. Mr. Havens responded that there was no money in the account as he had just paid bills. Appellant continued to threaten Mr. Havens with the firearm. Finally, the men pulled the car to the side of the road. Mr. Havens was ordered out of the car and told to prepare to die by appellant. Appellant directed Mr. Havens to turn his back and remain standing. While Mr. Havens complied, appellant fled. Upon realizing that he was alone, Mr. Havens walked to a nearby store, called for assistance and reported the incident to police. (N.T. 11/5/97, p. 154).

At approximately 7:00 p.m. on the evening of November 9, 1996, appellant, driving a blue Lincoln, met his friend, Byron Price, near 60th and Catherine Streets in Philadelphia. Mr. Price testified that this was the first time he had seen appellant in possession of a dark blue Lincoln. (N.T. 11/6/97, p. 8). The two men planned to spend the evening together watching a boxing match. Mr. Price sat in the passenger seat of the Lincoln; appellant drove. Appellant pulled the car into an EXXON gasoline station at the corner of 60th and Catherine Streets. Appellant told Mr. Price to wait. While sitting in the car, Mr. Price heard a gunshot. (N.T. 11/6/97, p. 9). Appellant ran back to the car with a chrome revolver in his hand. Mr. Price noticed that a man he had formerly observed standing by a car in the gas station was now lying on the ground. Dropping the gun in his lap, appellant quickly made a U-turn out of the EXXON station and sped away on 60th Street. Mr. Price asked appellant why he shot the man. Appellant replied, "he drew on me." (N.T. 11/6/97, p. 15).

Mr. and Mrs. Johnson had been leaving their home across the street from the EXXON station at the time of the shooting. (N.T. 11/6/97, pp. 76, 92). They were unable to identify appellant; however, they testified that the shooter left the EXXON station in a dark Lincoln. (N.T. 11/6/97, pp. 78, 94). They each, independently, testified to the following observation: the victim raised his hands in the air and then fell backwards at the same time that a gunshot was heard. The shooter was wearing a lumberjack style jacket at the time of the incident. After the gunshot, the shooter jumped into the driver's side of a dark Lincoln and sped away on 60th Street. (N.T. 11/6/97, pp. 82, 93).

On November 11, 1996, Philadelphia police recovered a dark blue Lincoln that had been abandoned and set on fire. (N.T. 11/5/97, p. 197). From the trunk of the car, the police recovered a lumberjack style jacket. Mr. Havens identified the burnt Lincoln as the car appellant had stolen from him at gunpoint on the morning of November 9, 1996. (N.T. 11/5/97, p. 157). Mr. Havens also identified the jacket recovered from the trunk of the car as his own jacket that he had left in the car at the time of the robbery. (N.T. 11/5/97, p. 158).

The day after the murder, appellant made statements to several of his acquaintances taking credit for having shot the man at the EXXON station. (N.T. 11/6/97, pp. 156, 163, 182). Several weeks after the incident, appellant approached his friend Keith Smith while Mr. Smith was helping Carl Harris wash Mr. Harris's car. (N.T. 11/6/97, p. 107). Mr. Harris testified that he observed Mr. Smith and appellant engage in a conversation, out of his hearing, and then walk around the corner from where Mr. Harris was standing. (N.T. 11/6/97, p. 110). When Mr. Smith returned after parting from appellant, Mr. Smith had in his possession a chrome .357-Magnum firearm. (N.T. 11/6/97, p. 114). Sometime in December of 1996, Mr. Smith gave a .357 revolver to his attorney, Mr. Spina. (N.T. 11/7/97, p. 15). Attorney Spina immediately notified Philadelphia homicide detectives that he had the gun in his possession. (N.T. 11/7/97, p. 16). The homicide detectives recovered the revolver from Mr. Spina's office and turned it over to the Philadelphia crime lab for testing.

Based on information received in their investigation, the police obtained an arrest warrant for appellant in December of 1996. (N.T. 11/7/97, p. 128). However,...