Com. v. Wharton

• Decision Date: 07 December 1987
• Citation: 607 A.2d 710,530 Pa. 127
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert WHARTON, Appellant.
• Court: Pennsylvania Supreme Court

Page 710

607 A.2d 710

530 Pa. 127

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

Supreme Court of Pennsylvania.

Argued Dec. 7, 1987.

Re-argued Jan. 18, 1989 and April 8, 1991.

Decided April 28, 1992.

[530 Pa. 132] William T. Cannon, Philadelphia, for appellant.

Ronald Eisenberg, Chief, Appeals Div., Gaele McLaughlin Barthold, Deputy Dist. Atty., Helen Kane, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

ZAPPALA, Justice.

The victims in this case, Bradley and Ferne Hart, husband and wife, were subjected to a reign of terror by Robert Wharton, the appellant, and others, commencing in the summer of 1983, and ending tragically in their deaths on January 30, 1984. Appellant was arrested on February 7, 1984, and charged with two counts of homicide, robbery, criminal conspiracy, and numerous theft, burglary and related offenses. A jury of the Court of Common Pleas of Philadelphia County found him guilty of two counts of murder in the first degree and of all the related offenses. Following a separate sentencing proceeding conducted pursuant to the procedures for capital offenses in the Sentencing Code, 42 Pa.C.S. § 9711, the jury sentenced appellant to death on both counts of murder. Post-verdict motions were denied, and appellant was formally sentenced to death on the two counts of first degree murder. On the conviction for criminal conspiracy, appellant was sentenced to not less than five nor more than ten years imprisonment; and on the robbery and burglary convictions, terms of imprisonment of not less than ten years nor more than twenty years. All sentences were to run consecutively. This direct appeal automatically follows. 42 Pa.C.S. §§ 9711(h) and 722(4); Pa.R.A.P. Rules 702(b) and 1941.

The evidence of record, viewed in the light most favorable to the verdict winner, the Commonwealth, Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986), discloses the following. During the summer of 1983, appellant had been employed by Norman Owens, a general contractor, and had performed certain repair and construction work at the home of the Harts and also at a radio station owned by the Reverend Dr. Samuel B. Hart which was then managed by his son, Bradley. Bradley Hart had complained to Norman Owens about the quality of work done by appellant and his co-worker, Larue Owens (Norman Owens's son), and had refused to pay the elder Owens the full amount agreed to for that work. Norman Owens explained to appellant that he had not been paid in full because of Bradley Hart's dissatisfaction with appellant's work, and that when he (Mr. Owens) got paid, appellant would get paid. In retribution for not receiving payment that he thought he deserved, appellant began harassing the Hart family.

On August 14, 1983, the Hart residence in the Mount Airy section of Philadelphia was burglarized by appellant and Larue Owens while the Hart family were at Sunday religious services. Numerous items were stolen from the residence.

The following week, on August 22, 1983, the Hart residence was again burglarized and, in addition, was extensively vandalized. Appellant, accompanied by Larue Owens and Eric Mason, slashed and overturned furniture; ransacked closets; threw bleach, paint, baby oil, eggs, syrup and other items around the house; and drove a knife into a sofa cushion. Human excrement was also left in the house, the heat had been set at 90 degrees, and the stench of urine filled the air. Additionally, the faces of Bradley, Ferne and Lisa Hart (their daughter) had been completely blotted-out by yellow paint on family photographs.

An insurance adjuster investigating these two incidents compiled a list of the stolen items and itemized the damages to the household. The list of stolen items included televisions, stereo equipment, cameras and accessories, telephones, and numerous other appliances and electronic items. The vandalism caused damage in excess of $3,000.

On September 4, 1983, the Germantown Christian Academy Church was burglarized by appellant and Eric Mason. Dr. Samuel Hart was the founder of this church, and Bradley Hart was a deacon. A computer and petty cash were stolen from the church, and a photograph of Bradley Hart was pinned to a wall by a letter opener.

The following morning, at about 4:00 a.m., Philadelphia Police Officer Joseph Mullin was patrolling in the vicinity of the church when he observed Eric Mason carrying what he at first believed to be a television set. Upon closer inspection, Officer Mullin discovered that Mr. Mason was carrying a personal computer. He explained to Officer Mullin that he had been out jogging and found the computer in the trash. At that time, Mason was wearing a black karate outfit and sandals and showed no signs of physical exertion. Mason's appearance led the officer to find the explanation implausible. Mason was taken to the police station where the computer was impounded a receipt was issued, and Mason was released. On September 14, 1983, Mason was charged with burglary of the church.

In January, 1984, Eric Mason, Thomas Nixon and appellant went to the Hart residence, armed and intending to rob them. Nixon gained entry to their home on the pretext that his car had broken down and he needed to use their telephone. Appellant and Mason waited outside. Once inside, Nixon decided not to go through with the plan because there was another person in the house.

On January 30, 1984, appellant and Eric Mason went to the Hart residence, and appellant gained entry at knife point. Appellant forced Hart to write him a check, and then he and Mason tied Bradley and Ferne Hart up and made them sit on the couch while the two intruders watched television and talked. The two men decided to separate the Harts, taking Bradley Hart to the basement and Ferne Hart to the second floor, where they taped their faces (eyes, nose and mouth) with adhesive duct tape. When Ferne Hart was taken to the second floor, appellant also took the Harts' seven month old daughter, Lisa, to the second floor and put her on a bed.

Appellant then took Ferne Hart into the bathroom and tied her hands and feet with neckties. He strangled her with a necktie, filled the tub with water and held her head under water "until the bubbles stopped after a while." Her body was left draped over the bathtub, her sweat pants pulled down around her legs and her shirt pulled up, exposing her breasts. (There was no forensic evidence, however, of sexual molestation.)

Bradley Hart was forced to lie face down in a pan of water while one of the intruders stood with one foot on his back, as shown by a footprint on this victim's shirt, pulling on an electrical cord tied around his neck.

Additional items, including Mr. Hart's coat and a camera and camera bag, were then stolen by appellant and Mason. The two then turned off the heat, extinguished the back light, locked the door and left the premises, abandoning the victims' infant daughter.

On February 2, 1984, concerned that he had not heard from his son or daughter-in-law, Dr. Hart went to his son's residence. After forcing open the door, he heard the cries of his granddaughter, Lisa, and found her on the second floor. The house temperature had dropped to approximately fifty degrees. Dr. Hart also discovered the bodies of his son and daughter-in-law.

Lisa Hart was taken to a local hospital in a "preshock" state, suffering from dehydration and hypothermia. She also suffered respiratory arrest on the way to the hospital. Fortunately, the child survived.

After interviewing various witnesses concerning the incident, police suspected that appellant was involved in the Hart robbery. Acting upon a statement from the mother of appellant's girlfriend, who had told police that appellant gave her daughter a camera, the police executed a search warrant for the residence of appellant's girlfriend or fiancee, and discovered several of the items that had been stolen from the Harts, including a camera and case, video games and a television. On February 7, 1984, the appellant was arrested for the homicides. A search of his residence at the time of the arrest, pursuant to a warrant, disclosed other stolen items from the Harts' residence and the knife used by the appellant to gain entry therein. After being advised of his constitutional rights, and executing written waivers of those rights, appellant confessed to the robbery of the Hart residence on January 30, 1984 and to killing Ferne Hart. He named Eric Mason as his accomplice, stating that he left Mason downstairs with Bradley Hart. Appellant did not state that Eric Mason actually killed Mr. Hart.

Appellant also gave separate statements admitting his participation in the two earlier burglaries of the Hart residence, and the burglary of the Germantown Christian Academy.

Also on February 7, 1984, Eric Mason was arrested and his residence searched pursuant to a warrant, revealing numerous items stolen from the Harts, including Mr Hart's topcoat. Additionally, several pairs of Mason's sneakers were seized, one of which matched the imprint found on Bradley Hart's shirt. After waiving his Miranda rights in writing, Eric Mason confessed to participating in the burglary and homicides on January 30, 1984, but he stated that he could not go through with actually killing Bradley Hart leaving him for appellant to kill.

After having denied the defendant's pretrial motion to sever, the appellant and Eric Mason were tried jointly for the homicides, robbery, criminal conspiracy, and for all of the burglaries of the Hart residence and church, and related offenses. (Eric Mason was not charged in the August 14, 1983 burglary.) A jury trial commenced on June 13, 1985. At the time of trial, the Commonwealth presented its case through the use of exhibits, testimony of various witnesses, including the forensic...