Commonwealth v. Patterson
| Decision Date | 06 April 1990 |
| Citation | 572 A.2d 1258,392 Pa.Super. 331 |
| Parties | COMMONWEALTH of Pennsylvania v. Eugene Edward PATTERSON, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Dec. 5, 1989. [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Daniel J. Brabender, Jr., Erie, for appellant.
John J. Trucilla, Asst. Dist. Atty., Erie, for the Com appellee.
Before DEL SOLE, KELLY and HESTER, JJ.
HESTER Judge:
Eugene Patterson appeals from the February 17, 1989 judgment of sentence of life imprisonment entered by the Court of Common Pleas of Erie County following conviction by a jury for the murder of a ten-year-old girl in Millcreek, Pennsylvania, on July 19, 1966. Appellant asserts that the trial court committed numerous errors. We find no merit in appellant's allegations, and we affirm.
The record reveals the following. The victim ten-year-old Christine "Tina" Watson, and six-year-old Thomas Levis were playing near a bridge over Walnut Creek in their rural neighborhood in Erie County on July 19, 1966. Thomas Levis stated that a white male of medium build with a slight beard in a white checked shirt approached them, asking them to help him catch minnows around a bend in the stream. He also offered them chewing gum. The victim accompanied the man around a bend in the stream just north of the bridge, but Thomas Levis declined. The victim's sister and a friend, Mary Beth, arrived within minutes seeking Tina since she was late for lunch. Thomas Levis informed them that Tina had accompanied a stranger around the bend. The girls called for Tina and tried to find her in the woods without success. Mary Beth was startled by a man in a red checked shirt with facial hair and an angry expression who rushed from behind nearby bushes. They then heard him depart rapidly from the area in his automobile, tires screeching.
The police were summoned when Tina was not found. One of the first to arrive, Patrolman Hammer, discovered the girl three hundred yards downstream from the bridge behind a tall bush, with her throat slashed. The police secured the area and the coroner was summoned. When the body of the victim was moved, those present observed a six-pointed star toy "deputy" badge under her. The coroner later removed hair and particles from the girl's hand and fingernails, but the results of the tests that he performed were inconclusive.
Police placed roadblocks in the area to inquire of motorists if they had observed a man or a parked automobile near the bridge. Those who responded affirmatively remembered a shiny black late-model car parked on a dirt berm near the bridge. Based on Mary Beth's description of the man and the descriptions of the car by motorists, police questioned appellant since he both matched Mary Beth's description and his automobile was a black late-model vehicle. While appellant was being questioned in a room with numerous plain clothes officers, Thomas Levis identified him positively from behind a glass window, stating "Yes, that's the man but his hair is different, he bleached it." Notes of Testimony ("N.T."), 1/10/89 at 34. However, appellant denied any knowledge of the crime and was released.
During questioning by police, appellant had denied the charges and stated that he had quit his job earlier that morning and had gone fishing within a twenty minute drive of the murder scene. In the early afternoon, he had his hair cut and shaved. He subsequently showered and washed his clothes. Later in the afternoon, he picked up his wife from work. Police requested that he give them the clothes that he had worn earlier in the day and sought permission to search his automobile. Appellant consented to the search, but it revealed nothing. However, a number of people who viewed his automobile that night identified it as identical to the one that had been parked next to the bridge on the day of the murder. Two days later, police obtained fragments of the clothing that appellant had been seen burning following the murder in an open field owned by his father. Appellant explained that he burned some of his clothes and old shoes because they were covered with fish blood. N.T., 1/12/89, at 42.
Five days later, police utilized the victim's and appellant's clothing along with a volunteer dog-handler, to track the scent of the victim and appellant at the murder scene. Testimony revealed that the dogs tracked the victim to the scene of the killing and then tracked appellant's scent from the bridge to close to the scene.
Finally, trial evidence revealed that Reverend Merle Dickson, who previously had been assigned by the court to counsel appellant after his unrelated arrests for indecent exposure, telephoned the police to warn them that he would bring appellant to the station since appellant desired to confess to the murder. Appellant, however, subsequently changed his mind.
On appeal, appellant argues that the trial court erred in not quashing the information since it violated the prohibition against ex post facto prosecution. Specifically, he contends that he unconstitutionally is charged with homicide under 18 Pa.C.S. § 2501 and murder under 18 Pa.C.S. § 2502 when these statutes were not in existence at the time of the murder in 1966, and did not become effective until June, 1972, and June, 1973, respectively.
Appellant notes that prosecution under a newly-enacted law violates the ex post facto prohibition when it changes the rules of evidence, the penalties, or the elements of the offense. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (). He observes that the statutory definition of the crime was changed from "willful, deliberate, and premeditated" murder, 18 P.S. § 4701, to an "intentional killing", 18 Pa.C.S. § 2502(d).
The Commonwealth responds that 18 Pa.C.S. § 2502(d) defines an "intentional killing" as "willful, deliberate and premeditated". Further, the elements needed to establish the crime essentially are the same, and the penalty to which appellant is subject, life imprisonment, is the same. Consequently, the Commonwealth concludes that appellant's rights were not violated since the elements of the crime, the burden of proof, and the legal consequences of his crime are equivalent. Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981); Commonwealth v. Whitfield, 275 Pa.Super. 530, 419 A.2d 27 (1980) (). We agree with the Commonwealth's analysis of this issue.
Appellant's second argument is that the trial court erred in finding that he was not prejudiced by the twenty-two year delay in prosecuting this case. Specifically, appellant contends that all of the information used in his prosecution was available to the Commonwealth in 1966, that the delay renders the memories of defense witnesses less reliable, and that certain witnesses, including the barber who cut his hair and patrons at a taproom he visited on the day of the murder, were unavailable due to the delay. He further contends that even though prosecution for murder is not subject to a statute of limitations, it is limited by due process. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
We note that in order to establish a due process violation for a delay in prosecution, appellant must show that the delay caused substantial prejudice and that the reasons for the delay were improper. Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982). We find that appellant has failed to establish a claim of substantial prejudice. The barber was not an essential witness; the fact that appellant went to the barber shop is undisputed. He also fails to allege which patrons became unavailable or that they would have exonerated him in 1966. We will not credit unsubstantiated claims of prejudice. Finally, dimmed memories alone do not cause substantial prejudice. We note that appellant could recall selective events from the period and that the murder was such an indelible event that witnesses clearly remembered it. We conclude that any prejudice to appellant from the delay was minimal, since he at no time alleged an alibi defense, and in fact, the delay may have benefited him.
In addition the delay was not motivated by improper considerations, such as eliminating favorable defense evidence. The record establishes that appellant was prosecuted when two events occurred: another prime suspect was absolved and a witness suddenly linked appellant to the toy sheriff badge found under the victim's body. We find no factual support for appellant's assertion that the delay in bringing him to trial was deliberate or purposeful. The Commonwealth made a reasonable investigation in 1966 but failed to substantiate appellant's presence at the scene of the murder. The decision to reopen the investigation after elimination of another prime suspect resulted in a witness recalling that he had noticed a toy badge in appellant's home and in appellant's chest pocket on another occasion. Even an adverse effect on appellant's defense is excusable if the delay was a derivation of reasonable investigation by authorities. Commonwealth v. Sneed, supra. We conclude that the reason for the delay proffered by the Commonwealth was proper, in that it previously failed to elicit physical evidence that directly linked appellant to the crime despite a thorough investigation. We find no evidence that the delay was deliberate. Furthermore, any unconstitutional delay...
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