Commonwealth v. Fultz
| Decision Date | 28 April 1978 |
| Citation | 386 A.2d 513,478 Pa. 207 |
| Parties | COMMONWEALTH of Pennsylvania v. William FULTZ, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued Nov. 17, 1977.
Samuel Kagle, Philadelphia, for appellant.
F Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty Chief, Appeals Div., Charles A. Klein, Asst. Dist. Atty., for appellee.
Before EAGEN C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.
Appellant, William Fultz, was tried by a judge sitting with a jury and was convicted of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to life imprisonment. This appeal followed.
The facts are as follows. At approximately 9:00 p. m. on December 12, 1974, Maryann O'Bryant was walking in the 3100 block of West Page Street, Philadelphia. She saw Gary Johnson walk to the corner of 32nd and West Page and look around. Immediately thereafter, she and her companions met appellant and Calvin Martin. At the time, O'Bryant saw a brown wooden object under appellant's jacket. Martin and appellant then walked in the direction of 3125 West Page Street.
Joanne Cox, who lived at 3125 West Page Street, testified that around 9:00 p. m., she was in her house talking to Jonathan Kent, the victim, when Edgar Greenwood entered. Greenwood walked into the kitchen and told Cox he would like to speak with her privately. He asked Cox about her relationship with the victim, Jonathan Kent, and she replied that they were good friends. Cox asked Greenwood why he wanted to know and Greenwood replied that she would soon be dating him (Greenwood). When Cox and Greenwood re-entered the livingroom, Kent left the house through the front door. While on the porch, Kent was shot and killed by assailants using a shotgun and a .38 caliber pistol. When the shooting occurred, Greenwood ran out the backdoor of the Cox house.
After the shots were fired, O'Bryant saw appellant with Martin and Johnson running on Page Street. She noticed Johnson throwing away a pistol and appellant discarding a shotgun. The handle of the shotgun was the same color as the brown object O'Bryant had seen under appellant's coat. Appellant, Martin and Johnson got in an automobile and drove away.
Appellant argues first that the evidence was insufficient to sustain his conviction for murder of the first degree. We do not agree.
In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), we stated: " (Citations omitted.)
In light of this standard, we believe the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of murder of the first degree. Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended March 26, 1974, P.L. 213, No. 46, § 4, 18 Pa.C.S.A. § 2502.
Following trial, appellant's trial counsel filed boiler plate post-verdict motions challenging only the sufficiency of the evidence. Counsel attempted to raise other issues, but the trial court properly refused to consider them because of Pa.R.Crim.P. 1123(a) and our decision in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). On appeal, appellant is represented by different counsel and now challenges trial counsel's effectiveness. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Appellant's allegations of his trial counsel's incompetence deal with the failure to include certain allegations of error in written post-verdict motions.
In Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974), this court held that counsel is not ineffective for failing to raise baseless or frivolous issues. With this standard in mind, we will discuss appellant's claims concerning his trial counsel's effectiveness.
Appellant argues that trial counsel was ineffective for failing to include in written post-verdict motions an objection to the alleged hearsay of certain portions of Cox's trial testimony. The questioned evidence involves Cox's testimony about the conversation between Greenwood and herself in the kitchen of her home. As previously stated, Cox testified that Greenwood asked about her relationship with Kent and then announced that she would soon be dating him (Greenwood). Appellant believes that this testimony was hearsay and thus excludable. We do not agree.
In Commonwealth v. Wright, 455 Pa. 480, 485, 317 A.2d 271, 273 (1974), we stated: "The hearsay rule does not apply to all statements made to or overheard by a witness, but only those statements which are offered as proof of the truth of what is said." (Emphasis added.) In this case, the statement was not introduced to prove the truth of the matter asserted, i. e., that Cox would be dating Greenwood in the future. The statement was admitted rather to prove that the killing was one of "lying in wait," [1] thus making the crime murder of the first degree.
The Commonwealth's theory in this case was that Greenwood was acting in concert with appellant, Johnson and Martin in the killing of the victim. The Commonwealth argued, and the argument is supported by the evidence and its reasonable inferences, that Greenwood's role was to lure Kent out the front door of Cox's house where appellant and Martin were waiting with the shotgun and .38 caliber pistol. Greenwood's statement was introduced merely to prove that the statement was made and to bolster the Commonwealth's theory of the killing, and not for the truth of the matter asserted. As such, the statement was not hearsay and was thus, properly admitted. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967).
Appellant next argues that trial counsel was ineffective in failing to preserve for appellate review various instances of alleged prosecutorial misconduct, thus entitling appellant to a new trial. Appellant complains of various instances of misconduct during the prosecutor's opening remarks. Appellant argues that in two instances, the prosecutor made remarks which were not supported by the record. During his opening statement, the prosecutor indicated that appellant and his cohorts had "set a trap" to murder the victim. Appellant claims the record does not support such statement, but this argument is frivolous. As previously indicated, the Commonwealth was justified in advancing this argument, since Greenwood's statement to Cox supports such an argument. As the evidence does support the claim made in the prosecutor's opening, trial counsel was not ineffective in failing to include this claim in written post-verdict motions.
At another portion of his opening, the prosecutor stated:
" . . . You will hear from a man by the name of Anthony Brothers. He will tell you the reason for this shooting. . . . So, ladies and gentlemen of the jury, you will hear a classic case of first degree murder. . . . "
Since Anthony Brothers never testified, appellant argues that he is entitled to a new trial, based on our decision in Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973). We do not agree.
In Fairbanks, supra, at 95, 306 A.2d at 868, we stated:
We find no violation of the Fairbanks mandate.
In the instant case, the prosecutor intended to call Brothers, who would have testified that two weeks before the homicide, Calvin Martin, Gary Johnson and other unknown individuals entered the residence of Brothers and Kent and robbed the pair. During the robbery, Brothers and Kent got into a fistfight with the robbers. A few days later, Martin and appellant entered a barbershop where Brothers was sitting, apparently looking for Kent and Brothers. After showing Brothers a shotgun under Martin's coat, the pair left the barbershop and shot and killed Brothers' dog, which had been tied up outside the barbershop.
When Brothers was called to testify, appellant requested an offer of proof. The prosecutor told the court that since appellant was an associate of Martin and Johnson, he believed Brothers' testimony would show that the killing of Kent was in response to the fistfight at the original robbery. The trial...
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Com. v. Fultz
...386 A.2d 513 ... 478 Pa. 207 ... COMMONWEALTH of Pennsylvania ... William FULTZ, Appellant ... Supreme Court of Pennsylvania ... Argued Nov. 17, 1977 ... Decided April 28, 1978 ... [478 Pa. 210] Samuel Kagle, Philadelphia, for appellant ... F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy ... ...