Com. v. Smith
| Decision Date | 06 October 1986 |
| Citation | 513 A.2d 1371,511 Pa. 343 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Clifford SMITH, Appellant. |
| Court | Pennsylvania Supreme Court |
Michael J. Kane, Dist. Atty., Alan M. Rubenstein, Asst. Dist. Atty., Doylestown, Stephen B. Harris, Warrington, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
On November 22, 1983, in a trial by jury in the Court of Common Pleas of Bucks County, the appellant, Clifford Smith, was found guilty of murder of the first degree. A separate sentencing hearing was then held, as required by 42 Pa.C.S.A. § 9711, and appellant was sentenced to death. The instant direct appeal ensued.
The incident from which the conviction arose was one in which appellant committed armed robbery at a pharmacy, and, in the course of doing so, shot and killed the pharmacist. The facts and supporting testimony consisted of the following.
On Friday, June 17, 1983, at approximately 4:15 p.m., two black males, Clifford Smith and Roland Alston, entered the premises of the Parke-Woodburne Apothecary in Levittown, Bucks County, for the purpose of committing an armed robbery. Once inside the store both Smith and Alston separated under the pretense of examining merchandise. After waiting for the customers in the pharmacy to leave, Alston approached a clerk, Doris Forney, displayed a handgun, and ordered her and the proprietor/pharmacist, Richard Sharp, to lie upon the floor. Alston then ordered both Forney and Sharp to close their eyes, whereupon Alston and Smith began removing jewelry from them. Both Forney and Sharp were warned that they would be shot if they offered any resistance. Money was also taken from the store's cash register.
While this robbery was in progress a customer, Casimir Splet, entered the pharmacy. Splet was immediately accosted by the robbers and was ordered to lie upon the floor. Splet's wristwatch and wallet were then forcibly removed from him. Forney and Sharp were lying next to each other with their legs touching as the forcible removal of their money and jewelry was taking place. They were unaware at that time that Splet had entered the premises and become a robbery victim. After the robbery had apparently been completed, and while the victims were still lying on the floor, Forney and Splet heard one loud shot. According to Forney, she could feel the smoke from the gunshot in her face and could smell the powder from the discharge of the weapon. While her eyes were closed, she could feel that the tremor in Sharp's legs had stopped. Both Forney and Splet then heard footsteps leaving the premises and heard the door open and then close. When Forney opened her eyes she saw Sharp, a pool of blood around his head, and pieces of skull and brain matter in the immediate vicinity of his body. Both Forney and Splet were able to make a positive identification of Alston as one of the robbers.
According to the expert testimony of the Chief Deputy Medical Examiner for the City of Philadelphia, an autopsy upon the person of Sharp revealed that he had been fatally shot with a .38 caliber bullet. Testimony was also produced concerning the path of the bullet and the point of impact, and indicated that Sharp had been shot in the back of his head. Massive damage was done to Sharp's skull from the penetration of the bullet, and the damage was described as having been caused by a "hard contact" discharge with the muzzle of a handgun practically touching Sharp's head.
Eyewitnesses were present in the area of the pharmacy before, during, and immediately after the murder of Sharp. Among these was Thelma Cline, a woman who was seated outside on the sidewalk. Cline identified both Alston and Smith as the persons who entered the store and who, after being inside for a few minutes, left the premises through the same front doorway and ran away from the pharmacy. Also testifying was John McGrory, an employee of a convenience store located in the same shopping center as the pharmacy. McGrory identified both Alston and Smith as the two individuals who had entered the convenience store prior to the murder of Sharp, and who, after remaining in the convenience store for a few minutes, left the store and headed in the direction of the pharmacy. Also testifying was Gerald Gowen. Gowen was driving his car down a road adjacent to the shopping center immediately after the robbery/murder occurred. Gowen as well was able to make a positive identification of both Alston and Smith, inasmuch as both of these individuals had run across the road directly in front of Gowen's car, and Gowen gave a descriptive identification of the vehicle to which they fled. All of these witnesses, Cline, McGrory, and Gowen also identified the clothing worn by Alston and Smith. This clothing (shorts, sneakers, Phillies baseball cap, a 76'ers painter's cap, etc.) was later recovered at two separate residences in Philadelphia, one being the home of Frances Atkins and the other being the home of Bernadette Cheryl Yancey. At trial both Atkins, a girlfriend of Smith, and Yancey, a girlfriend of Alston, testified that Smith and Alston placed their clothes inside each location just hours after the instant homicide. The clothing worn by Alston during the robbery/murder, a black "Trax" jogging suit with red piping, was seized from Alston's person at the time of his arrest in Philadelphia on June 22, 1983 and was also positively identified by the eyewitnesses.
The jewelry taken from Splet, Forney, and Sharp (distinctive items easily identifiable such as unique rings, religious medals, neck chains, watches, etc.) was later recovered via a search warrant at the Yancey residence and/or from Yvette Barrow, another girlfriend of Smith's who together with Yancey had accompanied both Alston and Smith in the vehicle used during the robbery/murder. According to the testimony of eyewitnesses and the testimony of Yancey and Barrow themselves, Yancey and Barrow waited in Barrow's vehicle near the pharmacy while Alston and Smith exited from the vehicle and committed the robbery/murder.
Both Barrow and Yancey testified at trial on behalf of the Commonwealth. They related that both were driving around with Alston and Smith on the day of the robbery/murder, and they further reported that prior to driving from Philadelphia to Bucks County conversations were heard between Alston and Smith in which Alston and Smith discussed their urgent need to obtain money. Both witnesses also testified that Alston and Smith each had handguns with them. There was also testimony that Alston and Smith drove with them to the area of the shopping center where the pharmacy was located, at which time Alston and Smith discussed robbing the pharmacy. Both witnesses also testified to Alston's instructions to wait alongside the roadway with the vehicle's "flashers" on while Alston and Smith left the vehicle to enter the pharmacy. Yancey and Barrow also related conversations held between Alston and Smith after the shooting. These conversations concerned the shooting of Sharp and the division of the jewelry and money taken during the robbery. During these conversations, Alston said that Smith had shot the pharmacist and Alston criticized Smith for having done so, and Smith admitted to having shot Sharp but said that he "had to" do it because "the guy lifted his head." Thus, it was established that the shooting was intentional rather than accidental.
In addition to the eyewitness testimony and the testimony of Yancey and Barrow, the Commonwealth produced certain scientific and demonstrative evidence, e.g., a comparison of fibers found on Smith's sneakers showing that they were microscopically indistinguishable from carpet fibers from the pharmacy, latent fingerprint evidence from Alston found at the scene of the crime as well as latent fingerprint evidence from Smith found upon the Barrow vehicle, serology evidence indicating the presence of human blood upon Smith's sneakers, and ballistics evidence demonstrating that unfired cartridges found at the Yancey home had been loaded into, extracted, and ejected from a pistol possessed by Alston at the time of the robbery/murder.
In Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), this Court stated that in each death penalty case a determination would be made by this Court as to whether there was sufficient evidence to sustain the conviction for murder of the first degree. In the instant case, the evidence of appellant's guilt is so overwhelming that no serious question can be posed as to its sufficiency. Indeed, the conviction is supported by physical evidence as well as by the testimony of numerous eyewitnesses, including those who observed appellant at the scene of the crime and those who accompanied appellant in the getaway vehicle, the latter witnesses having even provided testimony that Smith admitted having intentionally shot the pharmacist.
Appellant Smith's first contention is that the trial court erred in permitting prospective jury members to be "death qualified." During the jury selection process, the prosecution challenged for cause five prospective jurors who stated that they could not vote for the death penalty under any circumstances. Exclusion of those jurors from the panel, appellant argues, resulted in the selected jury being conviction prone, in violation of Sixth and Fourteenth Amendment rights to an impartial jury selected from a representative cross-section of the community. We find no merit in this contention. This Court has repeatedly held that the "death qualification" process is consistent with constitutional trial guarantees. Commonwealth v. Colson, 507 Pa. 440, 453, 490 A.2d 811, 817-818 (198...
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