Com. v. Neff

• Decision Date: 19 October 2004
• Citation: 860 A.2d 1063
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gregory H. NEFF, Appellant.
• Court: Pennsylvania Superior Court

860 A.2d 1063

COMMONWEALTH of Pennsylvania, Appellee v. Gregory H. NEFF, Appellant.

Superior Court of Pennsylvania.

Argued November 19, 2003.

Filed October 19, 2004.

Harry M. Ness, York, for appellant.

Timothy Barker, Asst. Dist. Atty., York, for Com., appellee.

Before: TODD, BENDER, and BECK, JJ.

TODD, J.

¶ 1 Gregory H. Neff appeals the judgment of sentence imposed on December 18, 2002 by the York County Court of Common Pleas, the Honorable John C. Uhler, presiding, after a jury convicted him of second-degree murder. This Court heard oral argument on this appeal on November 19, 2003. After careful review, we affirm.

¶ 2 In 1969, Lillie Belle Allen and her family, who were African-American and lived in South Carolina, were visiting Allen's sister, Hattie Dickson, in York, Pennsylvania. At that time, there were ongoing racial riots in the city of York. On July 21, 1969, after spending the day fishing, Dickson drove Allen and the other family members into York in order to go to the grocery store. As their vehicle stopped at a red light at the intersection of Philadelphia and Newberry Streets, the family noticed police officers on the sidewalks with sawhorse barricades. Dickson turned the car onto North Newberry Street, and upon reaching a set of railroad tracks, the family noticed a white male standing in the window of a nearby building with a gun pointed at them. Dickson attempted to turn the car around, but as she did so, the car was hit by a barrage of gunfire. After the shooting stopped, Allen told her sister that she was going to take the wheel. As Allen exited the car, the gunfire resumed and Allen was fatally shot.

¶ 3 On July 20, 2001, more than thirty years later, Appellant was charged with first- and second-degree murder and voluntary manslaughter for the death of Lillie Belle Allen. The evidence at trial established that at the time of Allen's murder, Appellant was 21 years old and the leader of a local city gang. On the day before Allen's murder, Appellant attended a "white power" rally near Kiwanis Lake. Several hundred people were present at the rally, including police officers. On the day Allen was killed, Appellant was on Newberry Street and observed people walking around and talking. At some point someone asked Appellant if he wanted a weapon and Appellant responded in the affirmative and selected a 20-gauge shotgun. Appellant then went to the corner of Newberry Street and the railroad tracks where there were several groups of people. As the car driven by Dickson reached the railroad tracks, Appellant heard someone shout that the car's occupants had guns. People then began firing at the car. Appellant testified that he saw an African-American female approach the trunk of the car with a gun in her hand. Appellant then fired three shots at the car, after which he retreated from the area while the gunfire continued.

¶ 4 Appellant was tried before a jury along with eight other defendants, and on October 19, 2002, he was convicted of second-degree murder. On December 18, 2002, Appellant was sentenced to 52 to 120 months incarceration. This timely appeal followed, wherein Appellant raises the following issues for this Court's review:

I. Did the prosecutor in the instant matter commit reversible error when, in his closing argument, he made an explicit reference to the Bible by stating "[t]he law has always been, thou shalt not kill"?

II. Was reversible error committed during the course of the trial due to the fact that the jurors took notes during the course of the trial and took them into the jury room during deliberations, after which the defendant was denied a hearing by the trial court to question the jurors regarding this conduct?

III. Did the trial court commit reversible error by improperly instructing the jury on the applicability of accomplice liability to the crime of voluntary manslaughter?

IV. Did the 33 year delay between the murder of Lillie Belle Allen and the bringing of [Appellant] to trial for that offense so prejudice the proceedings, because of the unconscionable length of the delay, that no fair determination of guilt or innocence could have occurred, thereby mandating a finding of reversible error in the existing proceedings?

V. Did the various excursions of jurors from the jury room during the course of deliberations so taint the proceedings that no fair determination of guilt or innocence could have occurred, thereby constituting reversible error?

(Appellant's Brief at 8-9.) We will address Appellant's arguments seriatim.

¶ 5 Appellant's first argument concerns the following statement made by the district attorney in his closing argument on October 17, 2002:

There is no it-was-a-riot defense. There was no it-was-a-crazy-time defense. Every life is sacred regardless of whether things changed between 1969 and today. The law has always been, thou shalt not kill, and in the Commonwealth of Pennsylvania before you use deadly force, you must retreat if you can do so safely.

(N.T. Trial, 10/16/02, at 4120-21.) Appellant argues that the statement "thou shalt not kill" was an impermissible reference to the Bible that constitutes reversible error. We disagree.

¶ 6 As this Court previously has explained:

The decision whether to grant a new trial because of alleged prosecutorial misconduct rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Rios, 554 Pa. 419, 429-30, 721 A.2d 1049, 1054 (1998). Comments by a prosecutor do not constitute reversible error unless the language was such that its unavoidable effect was to prejudice the jury, forming in their minds fixed bias or hostility towards the defendant, so that they could not weigh the evidence objectively and render a true verdict. Id.

Commonwealth v. Spotz, 562 Pa. 498, 541-42, 756 A.2d 1139, 1163 (2000).

¶ 7 Appellant argues that the district attorney's comments in the instant case constitute reversible error per se under our Supreme Court's holding in Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991). In Chambers, our Supreme Court held that "reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se." Id. at 586, 599 A.2d at 644. The Court further noted that by arguing to the jury that the Bible states "and the murderer shall be put to death," the prosecutor in that case suggested to the jury "that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for [the appellant]." Id.

¶ 8 Appellant concedes, with respect to the instant case, that the district attorney did not refer specifically to the Bible; Appellant relies, however, on our Supreme Court's holding in Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998), wherein the Court, relying on its decision in Chambers, concluded that the prosecutor's reference to "a page in that book [which] says, it is better that you had a millstone tied around your neck and be cast into the deep, than that you harm a child. This is ancient law," during the penalty phase of the appellant's trial was reversible error. Id. at 493-95, 711 A.2d at 457 (citation omitted). The Court acknowledged that the prosecutor did not say the word "Bible", but concluded that the language the prosecutor used was distinctive and "undeniably a direct reference to [specific] Bible passages and a violation of our stern warning to prosecutors in Chambers." Id. at 494, 711 A.2d at 457-58.

¶ 9 Subsequent to its decision in Brown, our Supreme Court again had occasion to address a claim that a prosecutor impermissibly quoted from the Bible during his closing argument in Commonwealth v. Spotz, supra. In Spotz, the prosecutor, in response to an earlier statement by defense counsel that the appellant had a troubled childhood, stated during his closing argument: "Did Mark Spotz have a troubled childhood? I don't know that — I don't know that the Commonwealth would dispute that fact. But long before Dustin Spotz was killed and June Ohlinger and Penny Gunnet were murdered, Mark Spotz became a man and put away childish things." Spotz, 562 Pa. at 543, 756 A.2d at 1164. The appellant argued on appeal that "the prosecutor's responsive argument was a direct reference to 1 Corinthians 13:11, where St. Paul writes, `when I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put childish ways behind me,'" which was impermissible and constituted reversible error per se under Chambers. Spotz, 562 Pa. at 543, 756 A.2d at 1164.

¶ 10 In rejecting Spotz's argument, our Supreme Court explained:

First, it is not clear that the prosecutor was invoking the Bible. He certainly never mentioned the Bible by name, nor did he otherwise suggest that he was invoking the Bible. This is in sharp contrast to Chambers, where the reference was explicit, see 528 Pa. at 585, 599 A.2d at 643 (prosecutor argued, "as the Bible says `and the murderer shall be put to death'") or Brown, where the reference was very thinly veiled, see Brown, 551 Pa. at 493, 711 A.2d at 457 (in case where defendant was convicted of killing a three-year-old child, prosecutor stated, "there is a page in that book, it says, it is better that you had a millstone tied around your neck and be cast into the deep, than that you harm a child. This is ancient law....").

Here, the prosecutor's statement merely had five words in common with the passage from Corinthians. Furthermore, even if the phrase employed by the prosecutor could be said to have a biblical origin, we cannot say that this phrase was so distinctive that the jury must have believed that a religious document was being invoked. Much of our everyday speech and idiomatic expressions can be traced to biblical sources. To ban all such phrases based upon their etymology might ultimately operate to ban most speech, or certainly most

...