Com. v. Wharton

• Citation: 665 A.2d 458,542 Pa. 83
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert WHARTON, Appellant.
• Decision Date: 29 September 1995
• Court: Pennsylvania Supreme Court

Page 458

665 A.2d 458

542 Pa. 83

COMMONWEALTH of Pennsylvania, Appellee, v. Robert WHARTON, Appellant.

Supreme Court of Pennsylvania.

Argued April 26, 1995.

Decided Sept. 29, 1995.

[542 Pa. 86] William T. Cannon, Philadelphia, for Robert Wharton.

Catherine Marshall, Helen Kane, Philadelphia, Robert A. Graci, Attorney General's Office, Harrisburg, for Commonwealth.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

Appellant, Robert Wharton, appeals from the imposition of two sentences of death for the murders of Bradley and Fern Hart. Appellant was convicted of these murders and sentenced to death in 1985 by a jury in the Court of Common Pleas of Philadelphia County. This matter initially came before this Court as a direct appeal of the sentences of death. This Court affirmed Appellant's convictions of murder of the first degree and rejected his allegations of trial error. Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). However, we held that the trial court's failure to instruct the jury on torture during the penalty phase was prejudicially deficient. Id. at 153, 607 A.2d at 723. Appellant's sentence was vacated and the matter remanded for a new sentencing hearing. Id. at 155, 607 A.2d at 724. On remand, a new jury was empaneled, and Appellant's penalty was again set at a sentence of death for each count of murder of the first degree. ¹ Appellant's motions to set aside the verdict were argued before the trial court and denied. Commonwealth v. Wharton, Nos. 8402-2258 and 2262 (C.P.Philadelphia County Aug. 18, 1993). This matter is now before us as the direct appeal from the imposition of sentences of death, ² and we affirm those sentences.

On January 30, 1984, Appellant and Eric Mason gained entrance to the Hart residence at knife point. Appellant forced Mr. Hart to write him a check for work over which Appellant and Hart had disputed. After tying up Mr. and Mrs. Hart, Appellant and Mason took Mrs. Hart upstairs. They covered her eyes, nose and mouth with duct tape, tied her hands and feet with neckties, strangled her using a necktie, and held her head under water in the bathtub until she stopped breathing. Mr. Hart was taken to the basement where he was forced to lie down with his face in a pan of water while either Appellant or Mason held his foot on Hart's back and pulled on a electrical cord around Hart's neck causing his death. Appellant and Mason also abandoned the Hart's infant daughter in a bedroom after turning off the heat in the house.

Appellant first argues that the sentencing court erred in denying his pretrial motion to bar the penalty hearing on remand as it is an ex post facto application of 42 Pa.C.S. § 9711(h)(4). ³ Prior to the amendment of section 9711, this Court had the authority to either affirm a sentence of death or remand the matter for the imposition of a life imprisonment sentence. 42 Pa.C.S. § 9711(h)(2) (amended 1988). According to Appellant, this Court's remand of the matter for resentencing effectively increases his penalty from what it would have been if his appeal had been decided before the 1988 amendment of section 9711.

Appellant's argument must fail. This Court addressed the issue of whether applying section 9711(h)(4) to a matter which was on appeal at the time of the amendment constitutes an ex post facto law in Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993). There, the appellant was convicted of murder and sentenced to death prior to the amendment of section 9711(h)(2). His appeal from this sentence was pending when the legislature amended section 9711 to allow this Court to remand a death penalty matter for resentencing. This Court remanded for resentencing because the original sentencing jury had been provided with a verdict slip which violated the holding in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Thus, Young was again exposed to the possibility of a death sentence. In affirming Young's sentence, we stated that

[s]ection 9711(h) as amended did not deprive appellant of any substantial right protected by the Ex Post Facto Clause. It did not change the elements of the offense or the ultimate facts necessary to establish guilt. Nor did it increase the punishment which the law annexed to Young's crimes when committed. Finally, it did not alter the legal rules of evidence, so as to require less or different testimony than the law required at the time of the commission of the crimes in order to sentence appellant to death.

Commonwealth v. Young, 536 Pa. at 67, 637 A.2d at 1318. Accordingly, the application of section 9711(h)(4) to Appellant in the instant matter is not an ex post facto law, and Appellant's claim fails.

Appellant next argues that the sentencing court erred by effectively precluding him from pursuing as a mitigating circumstance his lack of a significant history of prior convictions. The sentencing court advised Appellant's counsel that if he presented evidence of a mitigating factor under 42 Pa.C.S. 9711(e)(1), ⁴ the Commonwealth would be permitted to present as rebuttal all of Appellant's prior convictions, including those which were contemporaneous with his convictions for the murders of the Harts. According to Appellant, these convictions are not prior convictions.

Appellant's argument is without merit. In Commonwealth v. Haag, 522 Pa. 388, 562 A.2d 289 (1989), this Court examined the issue of which convictions could be considered prior criminal convictions under section 9711(e)(1). We found that the determining factor is whether the defendant had a particular conviction at the time of the sentencing hearing. Commonwealth v. Haag, 522 Pa. at 407, 562 A.2d at 298. Instantly, Appellant was convicted of criminal conspiracy, robbery, and burglary at the same time he was convicted of the first degree murders of Mr. and Mrs. Hart. Because these convictions existed at the time of Appellant's sentencing, it was not improper for the sentencing court to rule that evidence of these convictions could be used as rebuttal to the mitigating circumstance that Appellant did not have a significant history of convictions.

Appellant's next allegation of error relates to the sentencing court's preparation of the verdict slip. The verdict slip contained four aggravating circumstances and two mitigating circumstances. After quoting the language of the aggravating factor under 42 Pa.C.S. § 9711(d)(10), ⁵ the sentencing court added parenthetical language which read, "Defendant committed another First Degree Murder at the time of this murder." According to Appellant, this was impermissible, gratuitous language which precluded the jury from being able to consider this aggravating factor in a detached manner. Appellant also claims that this additional language violated Rule 357(a)(2) of the Pennsylvania Rules of Criminal Procedure, which requires the judge to meet with counsel prior to jury deliberations to determine which aggravating and mitigating circumstances apply based on the evidence. "The judge shall then set forth those circumstances on the sentencing verdict slip using the language provided by law." Pa.R.Crim.P. 357(a)(2). However, Appellant fails to cite, and our research does not uncover, any authority which would warrant reversal as a result of the additional language.

Although we would not normally condone a sentencing judge's addition of language to that already provided by the statute, we find that the language at issue was merely explanatory and did not in any way preclude the jury from carrying out its sentencing function in a detached manner. Because the verdict slip quoted the language of section 9711(d)(10), the sentencing judge cannot be said to have violated Rule 357(a)(2).

Appellant also cites this Court's decision in Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990), in support of his position that the verdict slip was improperly prepared. However, Young is not on point with the matter before us. In Young, the trial judge provided accurate oral instructions to the jury regarding the finding of mitigating factors; however, the verdict sheet incorrectly required that the jury find mitigating factors unanimously. We remanded the matter for resentencing because there was no way of knowing whether the jury followed the oral instructions given by the judge or the instructions as they appeared on the verdict slip. Id. at 396, 572 A.2d at 1229.

The type of conflict we were confronted with in Young does not present itself in the matter presently before us. The verdict slip in the instant case does not contain any inconsistencies with the oral instructions provided by the judge or any legal inaccuracies. As such, we find that the sentencing judge did not err in the preparation of the verdict slip.

Appellant also argues that the sentencing judge erred in refusing to grant a mistrial after the jury indicated that it was unable to reach a unanimous verdict. According to Appellant, the jury reached its verdict as the result of judicial compulsion. This argument is not supported by the evidence in this case.

The amount of time a jury is kept together to deliberate is within the discretion of the trial judge, and that decision will only be reversed for an abuse of discretion. Commonwealth v. Chester, 526 Pa. 578, 605, 587 A.2d 1367, 1380, cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). Appellant asserts that the jury conducted "two days of considerable deliberations;" however, this is not the case. When the jury informed the judge that it was unable to reach a unanimous verdict, it had only deliberated for a total of five hours and thirty-two minutes. Commonwealth v. Wharton, Nos. 8402-2258 and 2262, slip op. at 7 (C.P. Philadelphia County Aug. 18, 1993). At 4:35 p.m. on the second day of deliberations, the jury was dismissed for the day and instructed to return at 9:30 a.m. the following morning to resume...