Com. v. Porter

• Decision Date: 08 February 1990
• Citation: 569 A.2d 942,524 Pa. 162
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ernest PORTER, a/k/a Theodore Wilson, Appellant.
• Court: Pennsylvania Supreme Court

Page 942

569 A.2d 942

524 Pa. 162

COMMONWEALTH of Pennsylvania, Appellee, v. Ernest PORTER, a/k/a Theodore Wilson, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 25, 1988.

Decided Feb. 8, 1990.

[524 Pa. 165] George Henry Newman, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, Chief, Appeals Div., Michael McGovern, Asst. Dist. Atty., Alan Sacks, Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION

McDERMOTT, Justice.

The appellant was tried by a jury and found guilty of murder in the first degree, ¹ robbery, ² and possessing an instrument of crime. ³ After further deliberations that same jury rendered a verdict of death for the first degree murder conviction. ⁴ Sentence was deferred pending a court ordered psychiatric examination of the appellant and the disposition of his post-trial motions. A psychiatric evaluation was made, post-trial motions were denied and the judgment of sentence was entered on June 27, 1986. In addition to imposing the death sentence fixed by the jury, the sentencing judge imposed a consecutive sentence of 10 to 20 years on the robbery conviction and 2 1/2 to 5 years on the conviction for possession of an instrument of crime. Appellant directly appealed the judgments of sentence.

The evidence in this case, like so many other examples that fill the courts, did not require an abstruse deduction to prove the appellant guilty. Those who bring a criminal purpose to the daily lives of others, as did the appellant here, must pass through that sticky web of the ordinary round of things. To alter them to fit a criminal purpose requires more than malice and a gun. It requires that the passerby, the late or early riser, the sleepless or ill neighbor, the returning party goer, house painter, roofer, locksmith, cement crew, sudden fire, clocks running slow or fast, and the other quotidian needs and purposes that tie us to the earth synchronize with their single purpose. As the appellant was to find, they rarely do. On the spring morning of April 27, 1986, all the normal things of a Saturday were unfolding when Mr. Raymond Fiss rose to begin the day at his beauty shop. He left home at 7:30 A.M., with thirty to fifty dollars to make change for his customers. For him, it was not just another Saturday. He was to go down to death. While he was driving the short distance to his shop, two other people were about that day. One, Angelina Spera, a neighbor directly across the street of his shop, was looking out her window. Another, Catherine Valente, a customer of Mr. Fiss, was walking to her Saturday appointment. She was to see, hear and positively identify the appellant. When Mr. Fiss was opening the door, Angelina Spera saw a black man push him into the shop and Mr. Fiss cry "Get the hell out of here." She called the police and returned to the window to see Catherine Valente walking toward the shop. As Mrs. Valente opened the door, she saw a man standing inside with a yellow bag in his hand. The man rushed past her saying, "I'll be back," got into Mr. Fiss's car parked at the curb and sped away. Both ladies gave a description of the killer to the police. The killer escaped, but more was to follow. Three days later, on April 30, 1985, three men robbed, at gun point, a jewelry store. During the robbery the jeweler activated a hidden alarm. The police arrived and chased the appellant by foot. As he ran he threw away a white bag. In the bag was a .38 caliber Colt revolver. That was the gun, according to ballistics, that killed Mr. Fiss. On May 3, 1985, the appellant was in the hands of the police and charged with the murder of Mr. Fiss.

The evidence at trial, if believed, and it was, was damning and sufficient. ⁵ Mrs. Valente positively identified the appellant as the man in the store. She could, she said, because the shop was lighted by the sun. Mrs. Spera could not see the face of the man, but could describe him as about 25 years old, 5'8"' and 145 lbs., which description fit the appellant. Beside the eyewitness identification of Mrs. Valente made with the bright inextinguishable April sun, and the description, given by Mrs. Spera to the police, the appellant left a fingerprint. To round the matter out in an orderly and understandable fashion, the Commonwealth began with the testimony of the deceased's wife, Mrs. Fiss. She told the jury her husband left with thirty to fifty dollars. The Commonwealth continued with the testimony of police officer Patrick Kent, who found him dead and broadcast the descriptions given by Mrs. Valente and Mrs. Spera, and then proceeded with the physician, Dr. Halbert Fillinger, who testified he died of a single fatal gunshot wound. The Commonwealth also called Norman Genoy, an evidence technician, who took photographs, made sketches and examined for latent fingerprints. He found a latent thumbprint on the exterior glass of the entrance door. To prove the identity of the print, the Commonwealth called a police fingerprint expert and in rebuttal an independent expert, originally retained by the appellant, to confirm the identity of the print. Both experts identified the print as appellant's. Appellant contends that calling the independent expert, Mr. Willis, in rebuttal, was prejudicial on two grounds. First, appellant had not contradicted the fingerprint evidence and second, that the expert was once his expert, who the appellant did not call. The expert was called to buttress the evidence offered by Mrs. Valente, who the defense had sought to discredit. A court may permit evidence, in rebuttal, going beyond the narrow scope of contradicted testimony. See Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973). The Commonwealth was entitled to support Mrs. Valente's identification with evidence of his fingerprint and indeed the appellant's own expert's opinion. It was not improper for the court to allow inquiry into Mr. Willis' prior retention by the appellant, who he could not serve consistent with his findings. In any case it was cumulative. The Commonwealth then called Vincent Gentile. Mr. Gentile was the proprietor of the jewelry store robbed three days later. He identified the appellant as the robber with the gun. Officer Kenneth Rossiter was called. He chased and identified the appellant as the one who threw away the bag with the gun. The gun was ballistically examined and testimony was offered by a ballistics expert that that gun fired the bullet that killed Mr. Fiss. In summary, the Commonwealth proved by eyewitness testimony, fingerprint and appellant's possession of the murder gun, that he was the robber and killer of Mr. Fiss. The evidence was more than sufficient.

Given that the evidence was sufficient, we turn now to whether its admission was legally proper. We shall do so, in light of the objections and claims of the appellant that the evidence was improperly admitted against him.

First, we shall address his contention that circumstances of the robbery of the jewelry store three days after the robbery and killing of Mr. Fiss was prejudicial. The appellant does not contend, as he cannot, that possession of a murder weapon three days after a murder is not admissible evidence probative of guilt. He complains that a description of the robbery by Mr. Gentile was outweighed by its prejudicial content, i.e. that Mr. Gentile and three of his customers were assaulted during the robbery. The appellant cites Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978). Without further analysis of Fuller, it is clearly distinguishable because no issue of identification was involved. Where the identification of the possessor of the gun is at issue, the why, how, where, when the gun was used all go to the proof of who possessed it. To tell less than all the circumstances because the alleged possessor was about a different crime, is to lessen the credibility of the occasion, to diminish the proof of one crime because he was committing another. The evidence that possession includes another crime is not offered to prove prior conduct but prior possession. That one includes the other is all the more reason to do neither and certainly not a reason to diminish the proofs of one. The learned trial judge made the distinctions between prior conduct and identification abundantly clear and the issue clarified as far as common sense can take it. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Appellant also contends that Mrs. Valente's identification was tainted by failure to identify him in a photo array shown her on May 1, 1985, six days after the robbery-murder. Mrs. Valente identified the appellant when his picture appeared on a television news broadcast which appellant claims was intentionally displayed by the police. Faced with the inconsistency, Mrs. Valente testified she was afraid to identify on May 1, 1985, and that she saw, but did not hear the television report that the appellant had been arrested. Even if pretrial procedures might prove suggestive, her identification had sufficient...