Com. v. Wright

Decision Date22 December 2008
Docket NumberNo. 403 CAP.,403 CAP.
Citation961 A.2d 119
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. William L. WRIGHT, III, Appellant.
CourtPennsylvania Supreme Court

Ralph Thomas Forr, Esq., for William L. Wright, III.

David C. Gorman, Esq., Richard A. Consiglio, Esq., Blair County District Attorney's Office, Amy Zapp, Esq., State of Pennsylvania District Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice EAKIN.

This is a direct appeal from a death sentence imposed following appellant's conviction of first degree murder, simple assault, aggravated assault, two counts of recklessly endangering another person, burglary, and criminal trespass.1 At the penalty phase, the jury found two aggravating circumstances and one mitigating circumstance.2 The jury found the aggravating circumstances outweighed the mitigating circumstance and imposed a death sentence for appellant's first degree murder conviction. Appellant filed post-sentence motions, which were denied. This appeal followed.3 We affirm appellant's convictions and death sentence.

FACTUAL HISTORY

Tammy Mowery and her husband, James Mowery, had two children. In March, 1998, the couple separated; Mrs. Mowery began a romantic relationship with appellant and became pregnant with his child. The Mowerys reconciled in July, 1998, after which they were victims of several acts of vandalism, including the killing of the family's pet rabbit; they blamed appellant, but he was never charged. At some point, appellant moved into his mother's house, next door to the Mowerys.

In the early morning of Thanksgiving Day, November 26, 1998, Mrs. Mowery saw appellant near the lot where the Mowerys' vehicle was parked. Afterward, Mr. Mowery discovered their vehicle's tires had been flattened. Assuming appellant was responsible, the Mowerys called 911 around 4:00 a.m.; Officer Koehle of the Altoona Police Department investigated, but appellant was not interviewed or arrested.

Approximately an hour later, the Mowerys saw appellant near their property again. Mr. Mowery called 911 at 5:20 a.m. and was told the police were at another crime scene. The Mowerys went outside to confront appellant. The three argued about the tires and the unborn child;4 the Mowerys told appellant they had called the police. The argument ended, and the Mowerys went inside.

A few minutes later, appellant telephoned the Mowerys. Mrs. Mowery hung up on appellant, but he called back and left a message that was ultimately deleted from the Mowerys' answering machine. Appellant then called 911 and City Hall at 5:51 a.m. to speak to the officer who had been at the Mowery home earlier; he was told a citation would be issued against him.

When Mr. Mowery saw appellant standing in the Mowerys' backyard, he contacted 911 a third time at 6:41 a.m., and was advised police would respond. Mr. Mowery called 911 a fourth time at 6:43 a.m. The tape of that call recorded Mr. Mowery's report that appellant was breaking into the Mowerys' house, shots being fired, and Mrs. Mowery screaming. The 911 operator again told Mr. Mowery the police were on the way. At 6:47 a.m., the Mowerys' answering machine recorded a call from the 911 operator.

Mrs. Mowery was the only witness to testify to the events inside the house. She testified that while appellant was breaking in, the Mowerys ran to their bedroom where their six-year-old son was sleeping. Mr. Mowery went into the closet before appellant reached the bedroom. Appellant apparently cut his hand on the door knob of the Mowerys' house, which he shot to gain entry, and his route from the back door to the bedroom was later traced by his blood stains. Mrs. Mowery, still pregnant with appellant's child, locked the door to the room and attempted to hide. Appellant broke open the bedroom door and had a brief exchange with Mrs. Mowery during which he put his gun to her head.

Appellant found Mr. Mowery in the closet and shot him four times. After emptying his pistol, he reloaded and shot Mr. Mowery once more. He then turned to Mrs. Mowery and said something to the effect of "I told you this was gonna happen." N.T. Trial, 4/13/00, at 139. As he was speaking, he gestured with the gun in his hand in the direction of Mrs. Mowery and her son. Appellant then left the room, and Mrs. Mowery called 911 at 6:49 a.m. to report her husband had been shot. At approximately the same time, the police arrived and saw appellant leaving in his Jeep.5

Police followed appellant on a low-speed chase for approximately 15 minutes until he arrived at the home of his former girlfriend. With the murder weapon in his hand, appellant went to the porch and began knocking on the door. Officer Koehle ordered him to drop the gun and step away from the door. Appellant instead aimed the gun at the officers as they raised their weapons against him. Appellant remained in a standoff with the officers for approximately 30 minutes. While Officer Kimmen negotiated with appellant, appellant stated he had just "toasted a guy" and did not want to go to jail. Eventually the officer convinced appellant to give up his weapon, and police arrested him. He had the loaded murder weapon on his person along with an empty clip, approximately 60 rounds of ammunition, a Taser gun, and a can of pepper spray. After being treated at the hospital for his hand injuries, appellant was taken to Blair County Prison.

PROCEDURAL HISTORY

Prior to the December 2, 1998 preliminary hearing, the trial court appointed public defender John Sifford to represent appellant. Attorney Sifford reported appellant did not recall the incidents in question. During the pre-trial period, appellant was hospitalized at least twice due to prison officials' concerns about his mental health and counsel's request for a review of his competency. In March, 1999, the court appointed Attorney Thomas Hooper as defense counsel due to a conflict between appellant and the public defender's office. In February, 2000, appellant withdrew a previously filed petition for a competency determination and indicated his desire to proceed to trial.

Appellant filed a motion requesting the jury be empaneled from outside Blair County, which the trial court granted. Prior to trial, a jury for an unrelated Blair County death penalty case was scheduled to be selected in Lebanon County in April, 2000, but that defendant entered a plea, obviating the need for a trial. Appellant's trial, originally scheduled for June, 2000, was moved to April to take advantage of the already scheduled process for choosing a Lebanon County jury. The court appointed Attorney Steven Passarello, who had prepared for the other death penalty case, as co-counsel to assist Attorney Hooper, and Attorney Kirk Kling was appointed as co-counsel to prepare for the penalty phase. Both attorneys joined the case approximately one month prior to trial; both filed motions for continuances which were denied. Jury selection occurred in Lebanon County March 20 through March 24, 2000. Trial occurred in Blair County April 10 through April 19, 2000. The court sequestered the jury during the trial.

Defense counsel challenged the Commonwealth's theory of the case primarily through cross-examination, particularly of Mrs. Mowery, the forensic pathologist who performed the autopsy, and the arresting officers. The defense also presented the testimony of a neighbor who stated he heard the Mowerys arguing during the summer months of either 1997 or 1998, not on the morning of the murder, and the testimony of an investigator who created a diagram of the Mowerys' house, which was used to buttress the defense's theory of the case. Appellant did not testify.

During closing arguments, defense counsel questioned Mrs. Mowery's characterization of the marriage as "wonderful" and hypothesized that after the argument in the backyard with appellant, the Mowerys argued—possibly violently—between themselves. They posited appellant, fearing for the safety of the woman carrying his child, broke into the house by shooting the locked door. They suggested Mrs. Mowery stayed downstairs in an attempt to calm appellant down and convince appellant to give her the gun. According to the theory, Mrs. Mowery went upstairs only to find Mr. Mowery livid in response to appellant's presence in the house. Potentially fearing for her own safety, Mrs. Mowery shot Mr. Mowery. Hearing the gun fire, appellant ran up to the bedroom and broke open the locked door, not knowing who had been shot. Counsel suggested this theory explained why appellant's blood was found on a path directly from the kitchen to the bedroom rather than all over the house, which counsel suggested would be expected if appellant had been searching for the Mowerys. Counsel argued appellant picked up the gun, which Mrs. Mowery had dropped. According to counsel, Mrs. Mowery told appellant to "get out," which she was heard saying on the tape of the 911 call before the operator came on the line. Mrs. Mowery testified she had directed the comment toward her children.

Counsel also questioned the veracity of the police officers' testimony concerning appellant's alleged "I toasted a guy" confession, noting Officer Kimmen amended his report to include the confession after originally omitting it, and Officer Koehle previously testified at the suppression hearing that he could not hear the conversation between Officer Kimmen and appellant, even though at trial he testified he heard the part of the conversation containing the confession.

The jury found appellant guilty as stated above. He was sentenced to death for first degree murder, and received a consecutive aggregate sentence of 14 to 28 years imprisonment for his other convictions. On June 16, 2000, the court appointed Attorney Thomas Forr as appellate counsel. Attorney Forr filed a number of post-sentence motions. Following hearings, the trial...

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