Com. v. Scarfo

• Citation: 611 A.2d 242,416 Pa.Super. 329
• Parties: COMMONWEALTH of Pennsylvania v. Nicodemo SCARFO, Appellant. COMMONWEALTH of Pennsylvania v. Francis IANNARELLA, Jr., Appellant. COMMONWEALTH of Pennsylvania v. Joseph LIGAMBI, Appellant. COMMONWEALTH of Pennsylvania v. Salvatore J. MERLINO, Appellant. COMMONWEALTH of Pennsylvania v. Philip NARDUCCI, Appellant. COMMONWEALTH of Pennsylvania v. Frank NARDUCCI, Jr., Appellant. COMMONWEALTH of Pennsylvania v. Nicholas MILANO, Appellant. COMMONWEALTH of Pennsylvania v. Lawrence MERLINO, Appellant.
• Decision Date: 25 August 1992
• Court: Superior Court of Pennsylvania

Page 242

611 A.2d 242

416 Pa.Super. 329

COMMONWEALTH of Pennsylvania v. Nicodemo SCARFO, Appellant.

COMMONWEALTH of Pennsylvania v. Francis IANNARELLA, Jr., Appellant.

COMMONWEALTH of Pennsylvania v. Joseph LIGAMBI, Appellant.

COMMONWEALTH of Pennsylvania v. Salvatore J. MERLINO, Appellant.

COMMONWEALTH of Pennsylvania v. Philip NARDUCCI, Appellant.

COMMONWEALTH of Pennsylvania v. Frank NARDUCCI, Jr., Appellant.

COMMONWEALTH of Pennsylvania v. Nicholas MILANO, Appellant.

COMMONWEALTH of Pennsylvania v. Lawrence MERLINO, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 9, 1992.

Filed June 17, 1992.

Reargument Denied Aug. 25, 1992.

David M. McGlaughlin, George Henry Newman, Philadelphia, for Iannarella, appellant in No. 1444.

Norris Gelman, Philadelphia, for Scarfo, appellant in No. 1481.

Louis M. Natali, Philadelphia, for Ligambi, appellant in No. 1483.

Ramy I. Djerassi, Philadelphia, for Salvatore Merlino, appellant in No. 1516.

Stanford Shmukler, Philadelphia, for Philip Narducci, appellant in No. 1518 and Frank Narducci, appellant in No. 1519.

F. Emmett Fitzpatrick, Jr., Philadelphia, for Milano, appellant in No. 3136.

Nino V. Tinari, Philadelphia, for Lawrence Merlino, appellant in No. 3480.

Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.

CIRILLO, Judge.

Nicodemo Scarfo, Salvatore Merlino, Lawrence Merlino, Joseph Ligambi, Francis Iannarella, Philip Narducci and Frank Narducci, and Nicholas Milano each appeal from judgments of sentence entered in the Court of Common Pleas of Philadelphia County following their convictions of First-Degree Murder, Criminal Conspiracy and Possession of an Instrument of Crime. All defendants received the mandatory sentence of life imprisonment for the murder conviction.

Before reaching the merits of the defendants' claims, a preliminary matter must be addressed. These defendants sought to consolidate their appeals. This court, however, denied that motion. The defendants then filed individual briefs in which each party extensively adopted by reference the various arguments of the other parties. Consequently, issues which have been raised by one party have, for the most part, been adopted by the others and shall be addressed concurrently.

I. FACTS ¹

The facts of the instant case concern the shooting death of Frank "Frankie Flowers" D'Alfonso. Nicodemo Scarfo headed the local organization of the La Cosa Nostra ("LCN"), otherwise known as the mafia or the mob. Non-initiated mafia hopefuls are called "proposed members" and have ties to the organization (are "with" the organization) but have yet to fulfill the requirements of initiation into LCN. During the Scarfo regime, a proposed member had to Scarfo first informed the other mafia officers of his command to kill D'Alfonso at a meeting at the Wok Restaurant on Walnut Street in Philadelphia. In attendance at the meeting were Scarfo, Salvatore Merlino, Larry Merlino (Salvatore's brother), and Iannarella and Thomas DelGiorno. ² DelGiorno was a cooperating Commonwealth witness at the trial.

participate in a killing in order to fulfill initiation requirements.

Scarfo ordered the killing of D'Alfonso because of his long-held dislike of D'Alfonso, a friend of former mafia boss Angelo Bruno, and because he was upset at the publicity D'Alfonso had received after Bruno's killing. This publicity suggested that D'Alfonso was to become or had become the Philadelphia family's boss. Scarfo had already become boss and was disturbed that D'Alfonso, who was not even a member of LCN, was receiving such notoriety. Scarfo ordered that proposed members Nicholas Milano and Philip Narducci carry out the killing with the aid of Frank Narducci and Eugene ("Gino") Milano. ³ Lawrence Merlino suggested that Scarfo "use Joe" Ligambi and that Ligambi "was ready" to become a member. Scarfo authorized Ligambi's addition to the assassination team. Scarfo promised to initiate the proposed members--Philip Narducci, Nicholas Milano and Ligambi ("the killers")--after they had killed D'Alfonso.

In preparation for the killing, Iannarella helped to procure the murder weapons and DelGiorno assisted Ligambi in obtaining a getaway car. Over several months of surveillance and stalking by the Milano brothers, the Narducci brothers and Ligambi, the victim proved to be a difficult target. After several unsuccessful attempts to kill d'alfonso, Scarfo became impatient. Iannarella echoed Scarfo's concern and wanted the killers to work harder. ⁴

Ultimately, the killers found their opportunity as D'Alfonso sat outside of a neighborhood delicatessen on a South Philadelphia street corner. The two gunmen, Ligambi and Philip Narducci, jumped out of the car driven by Frank Narducci and fired repeatedly at D'Alfonso, hitting him in the head and body with several bullets. D'Alfonso was murdered on the sidewalk outside of the delicatessen while he was talking to its owner. A young boy was selling "water ices" on the sidewalk in front of the delicatessen, and another boy was also present at the shooting scene. The second boy received minor powder burns from the gun discharges as he ran away from the scene during the shooting. The first boy took cover behind his water ice cart for five to ten minutes after the shooting and then ran from the scene of the crime. The boy who received the burns testified that after the shooting he saw a gunman walk back down an alley adjacent to the scene of the shooting. In a vacant lot situated on this alley, police recovered two guns later identified as being used in the shooting. After the killing Scarfo conducted initiation ceremonies for Ligambi, Philip Narducci and Nicholas Milano.

Prior to their state convictions, the United States Department of Justice successfully convicted these defendants on RICO charges. ⁵ Initially, the federal government had listed in its indictment the D'Alfonso killing as one of many predicate acts required for RICO convictions. The state trial was originally scheduled to precede the federal trial; however, due to delays chiefly caused by the defendants, the federal trial occurred first. Prior to the federal trial the federal prosecutor deleted the The D'Alfonso murder trial followed the federal RICO proceedings. They were tried before a jury, the Honorable Eugene H. Clarke, Jr. presiding. The selection of the eighteen-member jury spanned three weeks. ⁶ During voir dire, the potential jurors were questioned about their beliefs regarding the death penalty. Between the selection of the jury and the arraignment of the defendants, Eugene Milano decided to cooperate with Philadelphia, New Jersey and Federal law enforcement officials and testify against his former "family" members.

D'Alfonso murder from the indictment as a predicate act so as not to interfere with the state prosecution.

During the three-week trial, the Commonwealth presented testimony from many sources. Among the people who testified were various police officers who were involved in the investigation of the homicide, police officers who were assigned to monitor LCN figures, a medical examiner, witnesses who observed the events of the day of the shooting and the earlier events concerning the stalking of the victim, and cooperating witnesses Thomas DelGiorno and Eugene Milano. At the close of the trial, the jury returned guilty verdicts on all counts against all defendants.

The next day the trial court held a penalty-phase hearing at which the jury heard the Commonwealth's evidence concerning aggravating circumstances for which the death penalty could be imposed. Judge Clarke, however, removed this issue from the jury upon the defendants' motion. Judge Clarke imposed the mandatory sentence of life imprisonment. Post-sentence motions were filed and denied. This appeal followed.

II. ISSUES RAISED

In these appeals the defendants have raised a voluminous number of issues. Most parties have adopted by specific and/or general reference the arguments of the other parties. ^{7 7} Also, where issues have been waived by virtue of failure to object contemporaneously at trial, those issues have, for the most part, been raised alternatively in the context of ineffective assistance of counsel claims. On appeal, the following issues ⁸ have been extensively briefed and, in large part, argued before this panel:

1. Were the appellants' rights under 18 Pa.C.S.A. §§ 110 and 111 violated in that:

a. the Commonwealth failed to join the instant case with a prior homicide case involving the appellant upon which he was acquitted as required by the state compulsory joinder rule? and,

b. where a prior federal racketeering prosecution involved an all encompassing conspiracy of which the instant case was a part notwithstanding the government's withdrawal of this predicate act from that federal prosecution prior to trial?

2. Were appellants' rights under the double jeopardy clauses of the federal and state constitutions violated where the Commonwealth and federal government agreed to successively prosecute the appellants thereby increasing the likelihood of conviction and multiple punishment?

3. Whether the incidents of prosecutorial misconduct, viewed as a whole, served to unfairly prejudice appellants in their quest for a fair trial.

4. Whether improper bolstering of the credibility of Commonwealth witnesses compels reversal.

5. Have defendants been deprived of a fair trial where the Commonwealth in its opening speech impeached its own witnesses and then improperly used the unauthenticated testimony of a witness before the grand jury as substantive evidence under the pretext of refreshing recollection of the witness, and where the prosecutor has improperly testified without being sworn?

6. Whether, by introducing facts outside of the record in his summation, and arguing those facts to the jury, the prosecutor denied appellants due process of law.

7. Whether the trial court erred in...