Com. v. Thomas

• Decision Date: 15 June 1999
• Citation: 717 A.2d 468,552 Pa. 621
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frederick THOMAS, Appellant.
• Court: Pennsylvania Supreme Court

Page 468

717 A.2d 468

552 Pa. 621

COMMONWEALTH of Pennsylvania, Appellee, v. Frederick THOMAS, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 22, 1997.

Decided Aug. 18, 1998.

Reargument Denied Nov. 6, 1998.

Reargument Denied June 15, 1999.

Jay S. Gottlieb, Philadelphia, for F. Thomas.

Catherine Marshall, Andrew S. Gibson, Philadelphia, Robert A. Graci, Atty. General's Office, Harrisburg, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

NEWMAN, Justice.

Frederick Thomas (Appellant) has filed a direct appeal ¹ from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County that sentenced him to death following his convictions for first degree murder ² and possessing an instrument of crime. ³ We affirm the Judgment of Sentence.

FACTS AND PROCEDURAL HISTORY

On December 24, 1993, the Philadelphia Police Department arrested Appellant and charged him with murder and related charges stemming from the shooting death of William Moyer (Victim), a driver for the Federal Express Company. The Honorable Juanita Kidd Stout was the presiding judge of a jury trial, which lasted from October 17 through 26, 1994. At the conclusion of the trial, the jury was unable to reach a unanimous verdict and the trial court declared a mistrial. A second jury trial commenced on February 15, 1995, and the jury returned a verdict of guilty to charges of first degree murder and possessing an instrument of crime on February 27, 1995. The jury returned a sentence of death at the conclusion of the penalty phase. After denying Appellant's post-trial motions, the trial court formally imposed a death sentence for first degree murder and a suspended sentence for the charge of possessing an instrument of crime.

The evidence at trial established that on December 21, 1993, the Victim was delivering a package in the area of 3058 North 9th Street in Philadelphia. Two area residents, Willie Green (Green) and Charles Rowe (Rowe), were standing by a store on the corner of Ninth and Clearfield Streets close to the Federal Express truck. Green and Rowe, who had both known Appellant for several years, heard a loud bang and then saw Appellant run from behind the Federal Express truck and down an alley. They also saw Appellant tuck something under his jacket. When the two men walked over to the truck, they observed the Victim lying in the street, mortally wounded, his legs still moving.

Green and Rowe left the area because they did not want to get involved. Police arriving on the scene discovered the Victim's body lying face up with a large bullet hole to the left cheek. Based on the presence of gunpowder abrasions around the wound, the medical examiner, Adrienne Sekula-Perlman, M.D., determined that the killer fired the gun at close range, approximately twelve to eighteen inches away from the Victim's face. The gun was fired in an upward direction and the bullet went through the cheek into the base of the skull and entered the brain. Dr. Sekula-Perlman removed a large caliber bullet from the Victim's brain.

Police began looking for Green and Rowe because they had received information that the two men frequented the corner of Ninth and Clearfield Streets. After locating and interviewing them, the police obtained an arrest warrant for Appellant on December 23, 1993. Appellant surrendered himself to the police in the late evening hours of December 24, 1993.

At Appellant's second trial, the Commonwealth also called James Howser, a driver for the United Parcel Service (UPS), who testified that he delivered packages in the neighborhood where the murder occurred. Howser explained that on four or five occasions, he left his truck to make deliveries and returned to the truck to find Appellant sitting inside or on the truck's bumper.

Appellant testified at his trial and presented two alibi witnesses. He admitted that he had been at the intersection where the murder occurred, but claimed that he left the area an hour before the shooting. He stated that he went to the home of Carl Fooks (Fooks) and Odell Reid (Reid) and began drinking, and that the three men continued drinking from an hour before the shooting until approximately four hours after the murder. Fooks and Reid also testified that after Appellant arrived at Fooks' apartment, he did not leave until well after the killing.

At the penalty phase of the trial, the Commonwealth presented official court records showing that Appellant had been convicted of voluntary manslaughter in 1983, burglary in 1974, and aggravated robbery in 1969. Appellant introduced testimony from family members and a psychiatrist who testified that he had a drinking problem.

The jury found that the Commonwealth proved two aggravating factors: Appellant had a prior conviction for voluntary manslaughter, which is an aggravating factor pursuant to 42 Pa.C.S. § 9711(d)(12); and he had a significant history of violent felony convictions, 42 Pa.C.S. § 9711(d)(9). The jury found no mitigating factors and sentenced Appellant to death.

ISSUES

1. Was the verdict finding Appellant guilty of first-degree murder supported by the weight and sufficiency of the evidence?

2. Did the trial court err when it failed to strike the jury panel based on an allegation that the prosecution used peremptory challenges selectively to exclude African Americans from the jury?

3. Did the trial court abuse its discretion by denying a continuance requested by defense counsel due to the unavailability of a witness?

4. Did the trial court abuse its discretion by allowing a Commonwealth witness, Mr. Howser, to testify about prior contacts with Appellant?

5. Did the court err in denying Appellant's requested charge concerning voluntary manslaughter as a possible degree of guilt?

6. Did the trial court err by refusing to give an alibi charge that told the jury that alibi evidence could create a reasonable doubt even if the alibi was "not wholly believed"?

7. Did the trial court commit reversible error in failing to charge the jury that third degree murder requires an intent to cause serious bodily injury that results in death?

8. Did the trial court err when it instructed the jury that life imprisonment means life imprisonment with no possibility of parole?

9. Did the trial court err by allowing the prosecutor to make prejudicial remarks to the jury during closing arguments?

DISCUSSION

I. Weight and Sufficiency of the Evidence

We first note that this Court is required to review the sufficiency of the evidence to sustain a conviction for first-degree murder in every case in which the death penalty has been imposed. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982). In his first claim, Appellant claims that the evidence was insufficient to sustain the verdict of first degree murder because two witnesses supported his alibi defense. He maintains that their testimony was credible and that the jury "could have and should have" believed them. Appellant's brief, p. 11. He also emphasizes that his trial testimony included his denial that he shot the victim.

When reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, and all reasonable inferences deducible from the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all of the elements of the offenses beyond a reasonable doubt. Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998). Pennsylvania's murder statute provides, in pertinent part, as follows:

§ 2502 Murder.

(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

...

"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

18 Pa.C.S. § 2502. Thus, to sustain a conviction for first degree murder, the Commonwealth must prove that a human being was unlawfully killed; that the accused did the killing; that the killing was done with malice aforethought; and that the killing was willful, deliberate and premeditated. Brown. The willful, deliberate and premeditated intent to kill distinguishes first degree murder from all other degrees of murder. Id.

The Commonwealth can prove this specific intent to kill through circumstantial evidence. Id. Moreover, we have held that the use of a deadly weapon on a vital part of the body is sufficient to establish the specific intent to kill. Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90, cert. denied, 516 U.S. 854, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995) (citing Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972); and Commonwealth v. Meredith, 490 Pa. 303, 311, 416 A.2d 481, 485 (1980)) ("If a deadly force is knowingly applied by the actor to the person of another, the intent to take life is as evident as if the actor stated the intent to kill at the time the force was applied").

We have no difficulty concluding that shooting another person through the cheek and into the skull and brain with a large caliber weapon establishes a willful, deliberate and premeditated intent to kill necessary to sustain a conviction for first degree murder. Moreover, we are not persuaded by Appellant's claim that his alibi evidence was more credible than the Commonwealth's evidence. It is well settled that determinations concerning the credibility of witnesses are the sole province of the jury. Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 745 (1983); Commonwealth v. Brockington, 500 Pa. 216, 219, 455 A.2d 627, 628 (1983); Commonwealth v. O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976). The jury believed the Commonwealth's witnesses and rejected the testimony of Appellant and his two alibi witnesses, and we cannot and will not reevaluate the jury's credibility determinations.

Appellant also maintains that the verdict of guilty to the charge of first degree murder is against...