Com. v. Rolan

• Citation: 520 Pa. 1,549 A.2d 553
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 18 October 1988
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Florencio ROLAN, Appellant.

Page 553

549 A.2d 553

520 Pa. 1

COMMONWEALTH of Pennsylvania, Appellee, v. Florencio ROLAN, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 20, 1988.

Decided Oct. 18, 1988.

[520 Pa. 3] Janis Smarro, Philadelphia, for appellant.

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

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

OPINION OF THE COURT

PAPADAKOS, Justice.

We are presently required to review the conviction of murder of the first degree and the death sentence of Florencio Rolan pursuant to 42 Pa.C.S. § 9711(h)(1).¹ Appellant was arrested and charged with criminal homicide, robbery and possession of an instrument of crime, for the death of Paulino Santiago, who was shot to death in an abandoned house in the City of Philadelphia.

Appellant was tried in the Court of Common Pleas of Philadelphia County, before a jury with the Honorable George J. Ivins, Senior Judge, presiding. On May 19, 1984, the jury returned its verdicts of guilty of murder of the first degree and possession of an instrument of crime, and not guilty of robbery. On May 21, 1984, a separate sentencing hearing was conducted, following which the same jury determined that Appellant be sentenced to death. Post-verdict motions were argued and denied, and the trial court sentenced Appellant to death on the murder of the first degree conviction and to a concurrent term of one to two years imprisonment for the weapons offense. This automatic appeal followed.

It being the practice of this court in death penalty cases to review the sufficiency of the evidence, we begin our review of this case by a discussion of whether the record evidence was sufficient to support the verdict of murder of the first degree² as returned by the jury. See 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). The standard we apply in reviewing the sufficiency of the evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).

The evidence presented at trial, together with all reasonable inferences in favor of the Commonwealth, discloses the following. At approximately 8:30 p.m. on May 13, 1983, Appellant and Paulino Santiago, the victim, were arguing with one another at the corner of 17th and Wallace Streets in Philadelphia. The argument was over money and a woman named "Betsy." Betsy was Appellant's former lover who had recently moved out of Appellant's house and had taken up residence in the victim's house (her new lover). The victim's brother, Francisco Santiago, was present at this argument and overheard the exchange between the men.

At the conclusion of this argument, Appellant entered a nearby house and a few minutes later came looking for the victim. Appellant was now carrying a .22 caliber rifle and he found the victim and brother Francisco in an abandoned house on Wallace Street, where the two had entered to use the bathroom. As Appellant entered the abandoned house, he found both brothers and, pointing the loaded rifle at his victim, said, "Give me the money" and immediately fired one shot into Paulino Santiago's chest from a distance of about six feet. Appellant then quickly exited through the house's back door and ran down an alley.

The police were summoned and they arrived at the vacant house about 9:00 p.m. A search of the premises and areas adjacent thereto revealed the loaded .22 caliber rifle lying in the rear alleyway. The autopsy performed the next day identified the gun shot wound as the cause of death. A warrant for the arrest of Appellant was issued on May 14, 1983, the day following the shooting, but he was not apprehended until November, 1983, when he was finally located in New York City. Upon being apprehended, Appellant waived extradition and was returned to Philadelphia.

Taking all of these circumstances together, a jury could conclude beyond a reasonable doubt that Paulino Santiago's death was a homicide. From the nature of the injury, a jury could infer that the homicide was intentional and malicious. Since the armed Appellant came looking for his victim, the jury could conclude that the killing was premeditated. Finally, the jury could accept the eyewitness testimony of the victim's brother and conclude beyond a reasonable doubt that Appellant committed the crime. Accordingly, we are satisfied that sufficient evidence exists in this record to support the jury's verdict of murder of the first degree, and dismiss Appellant's sufficiency challenge.³

Appellant argues that the trial court abused its discretion when it denied his request to recuse itself from this case when Appellant brought it to the attention of the trial court that it had presided over another trial on different charges against Appellant. In the previous trial, Appellant was found guilty of murder by a jury with Judge Ivins presiding and, on appeal, this Court reversed the sentence and conviction and remanded the matter for a new trial. Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979). According to Appellant, the fact that the trial judge presided over another trial against him, resulting in a conviction, which was reversed by this Court, may have been a source of embarrassment to the trial court and somehow compromised the learned trial court's impartiality towards Appellant. This argument is meritless.

Appellant makes much of the fact that Judge Ivins presided in another murder trial over him and speculatively concludes that what the judge learned about him nine years before somehow biased the court. Such an allegation, devoid of any supporting facts, cannot be sufficient evidence of prejudice, bias, or partiality, and we reject Appellant's contrary argument. Appellant's further conclusion, that the trial court may have been embarrassed by his ruling at the former trial which predicated a reversal, is even more speculative and must similarly be rejected.

The record clearly reveals that on more than one occasion, the trial court assured Appellant that his earlier role would have no effect on his ability to preside over this jury trial (N.T. 4/19/84 p. 7-8; 5/1/84 7, 10). Moreover, this proceeding, like the other murder trial, was conducted before a jury, the ultimate fact-finder of guilt or innocence and determiner of life or death.

We detect nothing from our review of the record to indicate that the trial court's rulings improperly removed factual issues from the jury or unjustly guided their determinations on guilt or the penalty. The mere allegation of the trial judge's former experience with this Appellant, with nothing more, is insufficient to raise any inference of bias and the trial judge did not abuse his discretion in denying the motion to recuse.

Appellant's next argument concerns an allegation of prosecutorial misconduct in reference to a statement made during closing argument which it is argued improperly commented upon Appellant's failure to testify. As we noted in Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987), a prosecutor is not permitted to comment adversely upon a defendant's refusal to testify on the merits of the charge against him. Such comments obviously compromise the privilege against self-incrimination and the defendant's constitutional presumption of innocence. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983).

Turning to this case, Appellant points to the following language the prosecutor delivered during his close to the jury:

"[MR. DiDONATO:] I would like to go through the law now. The facts were not that long, I don't think that there is any doubt in your mind, that you know Florencio Rolan was the man that shot and killed Paulino Santiago. You have heard absolutely no evidence that would indicate otherwise, none whatsoever."

(N.T. 5/17/84, p. 80.)

Trial counsel immediately objected to this statement and moved for a mistrial, arguing that the statement improperly referred to the fact that the defendant had not testified. The court denied the objection and request for a mistrial, but instructed the jury as follows:

Ladies and gentlemen of the jury, you are to note: The comment involving production of evidence, you are to completely disregard that. It has no place in this case as it presently stands. So what the district attorney has said must, without question, be disregarded.

Even though I will tell you this again, comments of counsel, whatever time they may make it, have no control over your understanding and your recollection. It is your recollection alone and nothing else. But this bordered a little bit on the legal aspects. That is why I am telling you to completely, absolutely, and unequivocally disregard the comments.

(N.T. 5/17/84, p. 82)

It is well established that a prosecutor must have reasonable latitude in presenting a case to the jury and must be free to present his or her arguments with "logical force and vigor." Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987). When read in the context of the closing, the prosecutor's argument does not seem to us to reflect adversely upon the Appellant's decision not to testify. The statement was a simple declamation that all the evidence lead unerringly to the conclusion that Appellant had committed the murder. Such an argument has already been approved by this Court, Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987), and merely represents an instance of the prosecutor's unquestioned right to argue to the jury that the evidence establishes the defendant's guilt....