Commonwealth v. Messersmith, 2004 PA Super 401 (PA 10/19/2004)
| Decision Date | 19 October 2004 |
| Docket Number | No. 153 MDA 2003.,153 MDA 2003. |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT N. MESSERSMITH, Appellant. |
| Court | Pennsylvania Supreme Court |
Appeal from the Judgment of Sentence of December 18, 2002 In the Court of Common Pleas, Criminal Division York County, No. 3315 CA 2001.
Before: TODD, BENDER, and BECK, JJ.
OPINION BY TODD, J.
¶ 1 Robert N. Messersmith appeals the judgment of sentence imposed on December 18, 2002 by the York County Court of Common Pleas, the Honorable John C. Uhler, presiding, after a jury convicted him of second-degree murder. This Court heard oral argument on this appeal on November 19, 2003. After careful review, we affirm.
¶ 2 In 1969, Lillie Belle Allen and her family, who were African-American and lived in South Carolina, were visiting Allen's sister, Hattie Dickson, in York, Pennsylvania. At that time, there were ongoing racial riots in the city of York. On July 21, 1969, after spending the day fishing, Dickson drove Allen and the other family members into York in order to go to the grocery store. As their vehicle stopped at a red light at the intersection of Philadelphia and Newberry Streets, the family noticed police officers on the sidewalks with sawhorse barricades. Dickson turned the car onto North Newberry Street, and upon reaching a set of railroad tracks, the family noticed a white male standing in the window of a nearby building with a gun pointed at them. Dickson attempted to turn the car around, but as she did so, the car was hit by a barrage of gunfire. After the shooting stopped, Allen told her sister that she was going to take the wheel. As Allen exited the car, the gunfire resumed and Allen was fatally shot.
¶ 3 On or about April 26, 2001, more than thirty years later, Appellant was charged with first- and second-degree murder and voluntary manslaughter for the death of Lillie Belle Allen. The evidence at trial established that at the time of Allen's murder, Appellant was 19 years old and a member of a local city gang known as the "Newberry Street Boys." On the day before Allen's murder, Appellant attended a "white power" rally near Kiwanis Lake. Several hundred people were present at the rally, including police officers. On the day Allen was killed, Appellant was confronted by two brothers, James and Sherman Spells, regarding his possible role in a firebomb attack on their mother's home. During the confrontation, Appellant remained on his front porch at 229 North Newberry Street with a shotgun in his hands.
¶ 4 Subsequently, as Dickson's vehicle approached the railroad tracks from the Philadelphia Street area and turned onto North Newberry Street, Appellant appeared from between some parked cars and started running down the middle of the street. Armed with his shotgun, Appellant stopped a short distance away from Dickson's vehicle, shouldered his gun, and fired at the car. At least one eyewitness testified that this was the first shot fired at Dickson's vehicle. Appellant then briefly exchanged words with some other individuals on the corner, following which Dickson's vehicle was barraged by gunfire.
¶ 5 Appellant was tried before a jury along with eight other defendants, and on October 19, 2002, he was convicted of second-degree murder. On December 18, 2002, Appellant was sentenced to 108 to 228 months incarceration. This timely appeal followed, wherein Appellant raises the following issues for this Court's review:
I. Did the prosecutor commit reversible error when, in his closing argument, he made an explicit reference to the Bible by stating, "[T]he law has always been, thou shalt not kill"?
II. Was reversible error committed during the course of the trial due to the fact that jurors took notes during the course of the trial, took them into the jury room during deliberations, and used them during deliberations with the consent of the trial court, after which the Appellant was denied a hearing by the trial court to question the jurors regarding this conduct?
III. Did the trial court commit reversible error by improperly instructing the jury on the applicability of accomplice liability to the crime of Voluntary Manslaughter?
IV. Did the various excursions of jurors from the jury room during the course of deliberations so taint the proceedings that no fair determination of guilt or innocence could have occurred, thereby constituting reversible error?
V. Did the 32 year delay between the shooting of Lillie Belle Allen and the arrest of Appellant so prejudice the proceedings because of loss of physical evidence and the death and/or unavailability of numerous witnesses cause the Appellant actual prejudice impairing his ability to defend against the charges and the delay was a product of reckless conduct by the prosecution and a change of prosecutorial policy violate Appellant's right to due process?
VI. Did the trial court commit reversible error by failing to grant Appellant's Motion for Mistrial based upon the prosecutor's questioning of one of Appellant's forensic experts by implying that Appellant and Appellant's counsel were withholding incriminating physical evidence?
VII. Did the trial court commit reversible error by denying Appellant's Motion for Mistrial based upon Detective George's testimony that he instructed Appellant to speak with his attorney and then tell the police his side of the story and no testimony was ever presented that Appellant ever did so constitute an improper reference to Appellant's 5th, 6th and 14th Amendment Rights to counsel and to remain silent?
VIII. Did the trial court commit reversible error by denying Appellant's Motion to Suppress Physical Evidence Seized pursuant to a Search Warrant executed on July 24, 1969 when the Search Warrant was based upon an unknown confidential informant and a deceased affiant based upon information that was uncorroborated?
IX. Did the trial court commit reversible error by denying Appellant's Motion to Suppress Statements made by the Appellant on the day of his arrest based upon questioning by Detective George of the Appellant when Detective George knew Appellant was represented by counsel?
X. Did the trial court commit reversible error by sentencing Appellant to a term of imprisonment well in excess of all other Co-Defendants when it improperly considered the conviction of Appellant for a crime that occurred after the shooting of Lillie Belle Allen and ignored substantial mitigating factors?
(Appellant's Brief at 4-6.) We will address Appellant's arguments seriatim.
¶ 6 Appellant's first argument concerns the following statement made by the district attorney in his closing argument on October 17, 2002:
There is no it-was-a-riot defense. There was no it-was-a-crazy-time defense. Every life is sacred regardless of whether things changed between 1969 and today. The law has always been, thou shalt not kill, and in the Commonwealth of Pennsylvania before you use deadly force, you must retreat if you can do so safely.
(N.T. Trial, 10/16/02, at 4120-21.) Appellant argues that the statement "thou shalt not kill" was an impermissible reference to the Bible that constitutes reversible error. We disagree.
¶ 7 As this Court previously has explained:
The decision whether to grant a new trial because of alleged prosecutorial misconduct rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Rios, 554 Pa. 419, 429-30, 721 A.2d 1049, 1054 (1998). Comments by a prosecutor do not constitute reversible error unless the language was such that its unavoidable effect was to prejudice the jury, forming in their minds fixed bias or hostility towards the defendant, so that they could not weigh the evidence objectively and render a true verdict. Id.
Commonwealth v. Spotz, 562 Pa. 498, 541-42, 756 A.2d 1139, 1163 (2000).
¶ 8 Appellant argues that the district attorney's comments in the instant case constitute reversible error per se under our Supreme Court's holding in Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991). In Chambers, our Supreme Court held that "reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se." Id. at 586, 599 A.2d at 644. The Court further noted that by arguing to the jury that the Bible states "and the murderer shall be put to death," the prosecutor in that case suggested to the jury "that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for [the appellant]." Id.
¶ 9 Appellant concedes, with respect to the instant case, that the district attorney did not refer specifically to the Bible; Appellant relies, however, on our Supreme Court's holding in Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998), wherein the Court, relying on its decision in Chambers, concluded that the prosecutor's reference to during the penalty phase of the appellant's trial was reversible error. Id. at 493-95, 711 A.2d at 457 (citation omitted). The Court acknowledged that the prosecutor did not say the word "Bible", but concluded that the language the prosecutor used was distinctive and "undeniably a direct reference to [specific] Bible passages and a violation of our stern warning to prosecutors in Chambers." Id. at 494, 711 A.2d at 457-58.
¶ 10 Subsequent to its decision in Brown, our Supreme Court again had occasion to address a claim that a prosecutor impermissibly quoted from the Bible during his closing argument in Commonwealth v. Spotz, supra. In Spotz, the prosecutor, in response to an earlier statement by defense counsel that the appellant had a troubled childhood, stated during his closing argument: ...
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