Com. v. Trivigno

• Decision Date: 24 March 2000
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Philip TRIVIGNO, Appellant.
• Court: Pennsylvania Supreme Court

750 A.2d 243

561 Pa. 232

COMMONWEALTH of Pennsylvania, Appellee, v. Philip TRIVIGNO, Appellant.

Supreme Court of Pennsylvania.

Argued April 27, 1999.

Decided March 24, 2000.

Norris E. Gelman, Philadelphia, for appellant Philip Trivigno.

Catherine Marshall, Philadelphia, for appellee Com.

Thomas Dolgenos, Philadelphia, Robert A. Graci, Harrisburg, for appellee, Office of the Atty. Gen.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

NEWMAN, Justice.

On September 27, 1996, a jury convicted Appellant Philip Trivigno (Trivigno) of first degree murder in the slaying of Frank Varano (Varano) and on October 1, 1996 sentenced him to death. This is a direct appeal of this verdict. For the reasons that follow, we affirm the verdict of guilt, but vacate the sentence of death and remand for a new penalty phase hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November of 1993 Trivigno and the victim, Varano, argued during a court proceeding involving Trivigno and a friend of Varano's, Martin Dougherty (Dougherty). Dougherty had asked Varano to accompany him to court because he was "frightened." (N.T., 9/24/96 at 34.) While at court, Trivigno made a snide comment to Dougherty to which Varano asked, "you got a problem?" (Id. at 35.) The exchange escalated and Trivigno threatened, "We will take care of it later." (Id.) In the court appearances that followed, Varano and Trivigno continued to have heated words and according to Dougherty, on each occasion, Trivigno indicated that he would, "take care of it later." (Id. at 40, 43, 45.)

More than a year following the conclusion of the court proceedings, on December 9, 1995, at about 7:00 a.m., Varano and his wife, Cheryl, went to an alley near the intersection of Palethorpe and Lehigh Streets in North Philadelphia to buy heroin (Palethorpe is a small street near Second and Lehigh). They had been going to this location on a daily basis for several months before the incident. According to the trial testimony of Cheryl Varano, her husband parked their red GEO, in a parking lot next to Palethorpe Street and he then walked up to a nearby alley to buy drugs. After a few moments, Cheryl Varano heard two or three gunshots and she saw her husband come back to the car, holding his hand over his stomach and saying, "Hon, I got shot, I got shot." (N.T., 9/25/96 at 135.) He got into the car and slumped over the steering wheel. Cheryl Varano saw Trivigno run toward the car, approach the passenger side, point his gun at her, and shoot her through the car window. As she defensively placed her arm to cover her head, the bullet traveled through her hand and grazed the side of her head, above her eye. Trivigno then reached through the broken passenger side window and shot her husband in the head, killing him. Trivigno ran from the car, but came back, attempting to shoot Cheryl Varano again, but the gun did not fire. After the gun misfired several times, Trivigno fled back up Palethorpe Street, got into a car and drove away. During this entire ordeal, Cheryl Varano had a clear view of Trivigno, as he was mere feet away from her when he shot her and her husband in the car. About five days after the shooting, Cheryl Varano picked Trivigno out of a photo array and testified at trial that she had no doubt that he was the man who shot her and her husband.

That morning gunfire awoke many residents on Palethorpe Street. Mildred Rivera (Rivera) testified that she was on the second floor of her home when she heard the shots. She saw a man, who she later positively identified as Trivigno, running on Palethorpe Street towards a red car, shooting. Rivera opened her window and stuck her head out to get a better view. She went on to testify that she had a good view of Trivigno given that the situation occurred about two doors from her own home and at one point Trivigno looked directly up at the location where she was peering out of her window. Rivera saw Trivigno approach the car, break the "windshield," stick his whole hand inside the car and shoot Varano, who she saw sitting in the driver's seat. (N.T., 9/24/96 at 76.) Rivera stated that Trivigno left, then came back, and started firing at Cheryl Varano, who was still sitting in the passenger side of the car. Rivera heard the gun misfire, stating that it went "click, click." (Id.) She saw Trivigno leave the scene and proceed back towards Lehigh Street, where a "Cadillac with yellow tags" was waiting for him. (Id. at 78.) Trivigno got into the car and it sped away. On cross-examination, defense counsel elicited that Rivera was uncertain about the make of the car, but that it looked like a Cadillac and she was unsure whether the car was white or beige. Rivera stated that on the morning in question it was snowing, so the car looked white.

Another resident, Jose Romon (Romon), testified that he heard people shouting, and he looked out his second floor window. He saw a man shoot another man, then run down Palethorpe Street, past his house down to Lehigh Street, jump into a Lincoln and speed away down Lehigh towards Front Street. Although unable positively to identify the shooter, Romon could get the license plate number of the car, AVB 7336, which he yelled to his wife, Betsey Colon (Colon), who wrote down the numbers of the license. Romon also stated that he recognized the driver of the car, but that person was not in the courtroom. Romon testified that the car he saw was a medium or light brown Lincoln. Romon stated that he was "100 percent" sure that the car was a Lincoln, because he was a mechanic, who had done auto body work. (N.T., 9/25/96 at 29-30.) When asked to point to a color that resembled the car color that he saw, he identified a burgundy colored briefcase. Colon also testified, verifying the license plate number that she had written down was AVB 7336 and that she saw the plate number and she saw the man hop into the getaway car.

Detective Santiago, the homicide police detective who conducted the investigation, testified that he traced the license plate number that Romon and his wife had written down to a burgundy Lincoln, registered at 333 Daly Street and owned by a Philip Bastile (Bastile). However, the car led back to Trivigno. Detective Santiago determined that a Lincoln with the license plate number AVB 7336 had accumulated a number of tickets around the corner from the street where Trivigno lived with his grandmother and also near a jewelry shop that Trivigno's father owned and where Trivigno worked in December of 1995. Further, Trivigno's sister lived at 333 Daly Street, the address where the car was registered, but when Detective Santiago went to that address he received no information regarding Bastile. Additional investigation suggested that Trivigno's father (Trivigno, Sr.) had sold the car to Bastile. However, when asked about information concerning Bastile, Trivigno Sr. gave conflicting stories concerning his identity, and no information as to his location. Detective Santiago testified that Trivigno Sr. told him that he met Bastile at his store, and that Bastile was a homeless man who had a diamond worth $10,000, which he wanted to trade for a car to use as his home.

At trial Trivigno, Sr. gave a completely different version of the sale of the car at issue. He testified that in January of 1995 he owned a 1988 burgundy Lincoln sedan, but that he transferred it to Bastile. He stated that, at the time of the sale, he was aware that the vehicle would be registered to a man living at his daughter's address. Trivigno, Sr. described the man as looking like his son. Trivigno, Sr. testified that he, his son and Bastile went to the establishment to transfer ownership of the automobile, however, Trivigno, Sr. could not recall any specific details of the deal. He gave conflicting details of where the transaction took place (on either Girard Avenue or Baltimore Avenue) and indicated that Bastile drove a car to the location. The police did extensive investigation and found no record that Bastille ever existed. Undoubtedly, the jury was left with the impression that it was Trivigno's Lincoln that was the getaway car.

II. ISSUES ON APPEAL

Trivigno raises the following issues for this Court to review:

1) whether reversible error occurred because the prosecutor's comments during closing arguments improperly referred to his failure to testify;

2) whether trial counsel was ineffective for a number of claimed errors; and,

3) whether Trivigno is entitled to a new penalty phase hearing because the prosecutor argued the future dangerousness of Trivigno and the trial court erred in refusing to give a "life means life" instruction.

In addition, because this is a death penalty case, we conduct an independent review of the sufficiency of the evidence supporting the jury's verdict of guilt on the charge of first degree murder. Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 34 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1465, 143 L.Ed.2d 550 (1999) (citations omitted).

III. DISCUSSION

A. Sufficiency of the Evidence

The analysis we use to determine if the evidence was sufficient to sustain the conviction for first degree murder is, whether after viewing all the evidence in the light most favorable to the Commonwealth, as verdict winner, the evidence is sufficient to enable the trier of fact to find every element of the crime of first-degree murder beyond a reasonable doubt. Id. To find a defendant guilty of first-degree murder a jury must find that the Commonwealth has proven that defendant unlawfully killed a human being and did so in an intentional, deliberate and premeditated manner. It is the element of a willful, premeditated and deliberate intent to kill that distinguishes first-degree murder from all other criminal homicide. Id. Specific intent to kill may be inferred from the defendant's use of a deadly weapon upon a vital party of the victim's body....