Commonwealth v. Drummond

• Decision Date: 23 November 2022
• Docket Number: 28 EAP 2021
• Citation: 285 A.3d 625
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gerald DRUMMOND, Appellant
• Court: Pennsylvania Supreme Court

285 A.3d 625

COMMONWEALTH of Pennsylvania, Appellee

v.Gerald DRUMMOND, Appellant

No. 28 EAP 2021

Supreme Court of Pennsylvania.

Submitted: January 27, 2022

Decided: November 23, 2022

James Richard Lloyd III, Esq., for Appellant.

Lawrence Jonathan Goode, Esq., Andrew Joseph Greer, Esq., Mackenzie Doska Hayes, Esq., for Appellee.

Peter E. Kratsa, Esq., Donna Ann Walsh, Esq., Myers, Brier & Kelly, LLP, Appellant Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.

Ronald Eisenberg, Esq., Michelle Ann Henry, Esq., Jennifer Creed Selber, Esq., Joshua D. Shapiro, Esq., Pennsylvania Office of Attorney General, Harrisburg, PA, Appellee Amicus Curiae Attorney General of Pennsylvania.

Catherine Banner Kiefer, Esq., Kevin R. Steele, Esq., Appellee Amicus Curiae Pennsylvania District Attorney's Association.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE WECHT

In this PCRA¹ appeal, we consider a matter of first impression. We inquire whether trial counsel was ineffective for failing to object to a jury instruction in which the judge analogized jurors’ application of the "proof beyond a reasonable doubt" standard to jurors’ hypothetical decision-making regarding surgery involving a "precious one."² We conclude that instructions of this nature are reasonably likely to cause a jury to apply a diminished standard of proof in criminal cases, thus posing significant risks to a defendant's due process rights. Accordingly, we find arguable merit to Gerald Drummond's ineffective assistance of counsel claim. However, because counsel cannot be deemed ineffective for failing to anticipate a change in the law, we affirm the Superior Court's order affirming the denial of Drummond's PCRA petition..

* * * *

Shortly after 2:00 a.m. on July 13, 2007, the Philadelphia Police Department was notified of a shooting on Longshore Avenue. Officer Christopher Rommel reported to the location and found fifteen-year-old Timothy Clark and twenty-seven-year-old Damien Holloway lying on nearby Vandike Street. Clark had a large gunshot wound to the back of his head and was already dead by the time that Officer Rommel arrived. The bullet that killed Clark had traveled at a downward angle, and his hands were stippled.³ The size of the bullet hole, the angle of the shot, and the presence of stippling all suggested to the police that Clark was killed execution-style by an assailant standing behind him while Clark knelt with his hands interlocked behind his head.

Holloway was shot in the cheek, but was still alive. He was taken to a local hospital. His face displayed significant stippling, indicating that he was shot from no further than three feet away. When the bullet entered his jaw, the bullet broke into numerous shards, one of which Holloway inhaled into his lung, where it became lodged. The gunshot wound caused significant bleeding at the base of Holloway's brain, causing brain damage. Holloway died two days later.

The investigation into the murders of Holloway and Clark led officers to suspect that Gerald Drummond and Robert McDowell were the perpetrators. Over one year later, Drummond and McDowell were arrested for the murders. The following evidence was presented at their subsequent death penalty trial.

Holloway, who is black, had an on-again, off-again relationship with Drummond's sister, Annie, who is white. Holloway and Annie Drummond had a child together. Rumor had it that Drummond did not approve of his sister's relationship with Holloway because of their different races, and because Drummond believed that Holloway did not support the child that he had with Annie. On one occasion, Antonia Tisdale, who lived on Longshore Avenue, heard Drummond threaten Holloway with physical violence. Approximately one week before Holloway and Clark were murdered, Desiree Ford witnessed Drummond pull a gun on Holloway, use a racial epithet, and threaten to kill him. McDowell also had engaged in prior confrontations with Holloway, including one argument that involved McDowell's sister, and during which McDowell struck Holloway.

On the night of the Clark and Holloway murders, Antonia, Danyell, and Sharice Tisdale heard three gunshots at around 2:00 a.m. Danyell looked out her window and saw a white man wearing a black hoodie sprint past in the direction of Knorr Street, which is where Drummond lived. Over three years later, after some equivocation, Danyell told a detective that she believed that Drummond was that person. Danyell noticed that, in the days following the murders, Drummond and McDowell, both of whom were regulars in the neighborhood, were no longer seen in the area.

After the murders, McDowell told his girlfriend, Erica Marrero, that he had taken a gun to the scene and was supposed to kill Holloway, but could not go through with it. Instead, Drummond grabbed the gun from McDowell and shot Holloway. McDowell stated that Drummond wanted to kill Holloway as punishment because Drummond believed that Holloway had disrespected Drummond's sister, Annie. Drummond had no vendetta against Clark, but shot him because he could identify Drummond and McDowell as Holloway's killers. Later, during a walk on Vandike Street, McDowell pointed out to Marrero where the killings had taken place and showed her a bullet hole in a fence.

One week after the murders, Drummond was sitting in the living room of his mother's home on Knorr Street with Amy Rudnitskas, Nicole Penrose, and Tara McDowell (Robert McDowell's sister). According to Rudnitskas, Drummond described how the murders had taken place. Drummond explained that he and McDowell had approached the victims in the street from the front and the back, forced the victims to their knees, ordered them to place their hands behind their heads, and then shot them. Drummond told the group that Clark had been killed first, and then Holloway. Amy Rudnitskas believed that Drummond was fabricating a story. However, a week later, Drummond repeated the story and admitted that he had been the shooter. He boasted that he took the gun from McDowell and shot Holloway, who he believed deserved to be killed, and then Clark, who was killed merely because he was a witness.

Penrose also testified for the Commonwealth. Penrose confirmed that Drummond had made the incriminating statements at his mother's home on Knorr Street.

Around Halloween 2007, Thomas Zehnder was at a party and overheard Drummond bragging about the killings. Although Zehnder admitting to having trouble remembering the events in question due to sustained drug use, he testified that he heard Drummond state that, because he had executed Holloway while on his knees and close up, Holloway would have to have a closed casket funeral. Zehnder heard Drummond admit that the reason for the killing was Holloway's disrespect of Drummond's sister, and that he then had to kill Clark because he did not want to leave anyone alive who could identify him. A few weeks later, Drummond warned Zehnder that, if he mentioned Drummond's confession, he would end up dead like Holloway and Clark.

Approximately one year later, Amy Rudnitskas brought up the murders while conversing with McDowell. McDowell again admitted that he was supposed to be the triggerman, but that he could not bring himself to do it. He explained that Drummond took the gun from him and committed the murders.

On September 6, 2008, police officers arrested Drummond and McDowell and charged them with murder, based upon statements obtained from witnesses. Thereafter, associates of Drummond threatened or intimidated a number of witnesses. Drummond's brother, who had children with Amy Rudnitskas, threatened to take the children from her if she testified against Drummond. Someone put a menacing note and bullets in Rudnitskas’ mother's mailbox. Thomas Zehnder was assaulted while in prison and had to be placed in protective custody. After Nichole Penrose testified at Drummond's preliminary hearing, she was robbed, beaten, and warned not to appear at any other court appearances.

Similarly, Tara McDowell, co-defendant McDowell's sister, threatened Susan Coulter. While under the influence of heroin, Marrero had told Coulter that McDowell had disclosed to Marrero his role in the murders and that he had given her a gun and asked her to dispose of it. Three years later, on the eve of trial, Coulter told police officers of Marrero's admission. Tara McDowell warned Coulter that there would be consequences if she cooperated in the prosecution. She even followed Coulter to her home. The threatening behavior forced Coulter to move out of the neighborhood. Coulter nonetheless testified at trial. No witness testified that Drummond himself requested, suggested, or otherwise was responsible for the intimidation tactics.

* * * *

At the conclusion of trial, the Common Pleas Judge gave the following instruction concerning reasonable doubt:

Now, ladies and gentlemen, the Commonwealth bears this burden, proof beyond a reasonable doubt. It is the Commonwealth that must prove [sic ]. So now we have the third leg of the house, the burden. It is the Commonwealth's burden to prove beyond a reasonable doubt each and every one of the elements of the crimes that are before you.

It is the highest standard in the law. There is nothing greater but that does not mean that the Commonwealth must prove its case beyond all doubt. The Commonwealth is not required to answer all of the questions. In every trial, there are millions of questions you could ask. Well, I wonder if this happened? Well, I want to know about that. That is not the Commonwealth's burden. The Commonwealth is not required to prove its case beyond all doubt. The Commonwealth is not required to meet some mathematical certainty. The Commonwealth is not required to demonstrate the impossibility of innocence.

A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to pause, to hesitate, to refrain from acting upon a matter of the highest importance to their own

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