Commonwealth v. Wesley

• Decision Date: 19 June 2000
• Citation: 562 Pa. 7,753 A.2d 204
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jake T. WESLEY, Appellant.

753 A.2d 204

562 Pa. 7

COMMONWEALTH of Pennsylvania, Appellee, v. Jake T. WESLEY, Appellant.

Supreme Court of Pennsylvania.

Argued September 15, 1999.

Decided June 19, 2000.

John Elash, Pittsburgh, for Jake T. Wesley.

Stephen A. Zappala and Russ Broman, Pittsburgh, for Commonwealth.

Robert A. Graci, Harrisburg, for Office of Attorney General.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NEWMAN, Justice.

This is the direct appeal of Appellant Jake T. Wesley from a sentence of death imposed by the Court of Common Pleas of Allegheny County, pursuant to 42 Pa.C.S. § 722(4) and 42 Pa.C.S. § 9711(h)(1). A jury convicted Wesley of first-degree murder,¹ rape,² robbery,³ burglary,⁴ and theft by unlawful taking or disposition.⁵ Wesley alleges prosecutorial misconduct during the guilt phase of the proceedings and trial court error, ineffectiveness of counsel, and prosecutorial misconduct during the penalty phase of the proceedings. For the reasons presented below, we affirm Wesley's convictions for first-degree murder and other offenses but reverse the Judgment of Sentence concerning the charge of first-degree murder, and we remand for a new sentencing hearing.

FACTS AND PROCEDURAL HISTORY

On June 29, 1994, Wesley entered the apartment of Jill Creighton (the victim) through the bedroom window. After binding the victim's wrists and ankles with twine and tape, Wesley raped and sodomized her. Wesley then cut the victim several times with a variety of knives, including a meat cleaver, a serrated kitchen knife, and a utility knife. Then, Wesley inflicted cuts to the victim's arms, face, and neck. After that, he struck the victim four to six times on the head with a baseball bat, fracturing her skull and exposing her brain.

At trial, Dr. Abdulrezzak M. Shakir, a forensic pathologist employed by the Allegheny County Coroner's Office, testified that an autopsy revealed that the victim died of one of the blows to her head. Dr. Shakir also opined that, prior to sustaining the head injuries, while the victim was still alive, she suffered a fractured nose, several knife wounds to her face, including the destruction of her right eye, and defensive wounds to her hands. The autopsy disclosed additional evidence of extreme violence, including the broken tip of a utility knife blade in the victim's neck and a severe skull fracture. The jury heard the expert opinion of Thomas C. Myers, a criminalist in the serology unit of the Allegheny County Department of Laboratories, that the rape probably occurred while the victim was alive because of the condition of the sperm samples taken from the victim. Mr. Myers also testified that blood splatters on the walls and ceiling of the bedroom evidenced severe and repeated trauma to the victim. Other expert evidence from a molecular biologist indicated that the DNA from the semen deposits taken from the victim was consistent with Wesley's DNA.

After killing the victim, Wesley took her car keys and her purse, drove around the Pittsburgh area, stopped at two different banks, and used the victim's Money Access Card (MAC) at Automated Teller Machines (ATMs). Security cameras photographed Wesley using the victim's MAC. Within twenty-four hours, Wesley made more than fifteen attempts to withdraw money from the victim's account, but bank safeguards allowed him to withdraw only $230.00 from her bank account. Although investigators were unable to recover any of Wesley's fingerprints at the crime scene, the police found two fingerprints on a bank deposit envelope at one of the ATMs. A fingerprint expert from the Allegheny County Crime Lab identified the prints on the envelope as belonging to Wesley.

Following a call initiated by Wesley to the police on June 30, 1994, the police drove him from his apartment to the police station, interviewed him about the crime, and released him without arrest. Later that day, Wesley called the police to offer additional information, and the police conducted a second interview at his parents' house. On July 1, 1994, Wesley contacted the police again, and they conducted a third interview. Five days later, on July 6, 1994, the police arrested him, pursuant to an arrest warrant. The Commonwealth charged Wesley with homicide and one count each of rape, robbery, burglary, and theft by unlawful taking or disposition.

At trial, Wesley had three attorneys of record. During the guilt stage, William Brennan and Robert Foreman represented him, and during the penalty phase, Kathleen Cribbens was the lead attorney. All three attorneys were present during the entire trial. The trial began on January 17, 1996. On January 23, 1996, the jury returned a verdict of guilty on all counts. The following day, at the conclusion of the penalty hearing, the jury found four mitigating circumstances (no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); commission of homicide out of character, 42 Pa.C.S. § 9711(e)(8); remorse, 42 Pa.C.S. § 9711(e)(8); and contributions in prison, 42 Pa.C.S. § 9711(e)(8)); and two aggravating circumstances (the killing was perpetrated during the commission of a felony, 42 Pa.C.S. § 9711(d)(6); and the offense was committed by means of torture, 42 Pa.C.S. § 9711(d)(8)) and determined that Wesley be sentenced to death. The trial court sentenced Wesley to death for the crime of first-degree murder and two consecutive terms of imprisonment of ten to twenty years plus fines for the charges of rape, robbery and burglary, imposing no further penalty for the theft.

The trial court appointed counsel to represent Wesley in his Petition for Collateral Review pursuant to the Capital Unitary Review Act (CURA), 42 Pa.C.S. § 9570, et seq., which the trial court subsequently vacated.⁶ New counsel, John Elash, whom the trial court appointed to represent Wesley on direct appeal, filed a Post-Sentence Motion and a Motion for a New Trial Nunc Pro Tunc on October 16, 1997, which the trial court denied on February 17, 1998. The trial court filed its opinion on July 14, 1998. This direct appeal followed. 42 Pa.C.S. § 9711(h).

DISCUSSION

I. Allegations of Error in the Guilt Phase

a. Sufficiency of the Evidence

Although Wesley has not challenged the sufficiency of the evidence to sustain the jury's verdict of first-degree murder, in all cases of first-degree murder where the trial court has imposed the death penalty, we must perform an independent review of the sufficiency of the evidence supporting the conviction for first-degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).

In reviewing the sufficiency of the evidence, this Court must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). The elements of first-degree murder are that the defendant unlawfully killed a human being, the defendant killed with malice aforethought, and the killing was willful, deliberate, and premeditated. 18 Pa.C.S. § 2502(a), (d); Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923, 929 (1999)

. The willful, deliberate, and premeditated intent to kill is the element that distinguishes first-degree murder from other degrees of murder. Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 297(Pa.),

cert. denied, 519 U.S. 951, 117 S.Ct. 364, 136 L.Ed.2d 255 (1996). The Commonwealth may prove this specific intent to kill by circumstantial evidence. Id. The use of a deadly weapon on a vital part of the victim's body may constitute circumstantial evidence of a specific intent to kill. Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (1995).

The Commonwealth presented vivid evidence of the crime scene and the condition of the victim. Evidence showed Wesley stole into the victim's apartment and bound and brutally attacked her. The jury heard testimony from several witnesses that demonstrates that the victim died of repeated blows to the head with a baseball bat. The circumstantial evidence could prove beyond a reasonable doubt that Wesley had the specific intent to kill the victim. Viewed in the light most favorable to the Commonwealth, the evidence was sufficient for the jury to find that the Commonwealth established all of the elements of first-degree murder.

b. Prosecutorial Misconduct

Wesley alleges that the assistant district attorney who prosecuted the case engaged in prosecutorial misconduct. Specifically, Wesley claims that the prosecutor made an impermissible statement concerning Wesley's decision not to testify in violation of federal and Commonwealth constitutional law. U.S. Const. Amend 5; Pa. Const. Art. 1, § 9; see Griffin v. California, 380 U.S. 609, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)

; Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715, 717 (1973); see also 42 Pa.C.S. § 5941(a) (preventing a trial judge or counsel from adversely referring to a defendant's failure or refusal to testify).

In reviewing claims of improper comments by prosecutors, the standard of review is whether the trial court abused its discretion in ruling that the comments were or were not improper. Commonwealth v. Keaton, 556 Pa. 442, 729 A.2d 529, 538 (1999),cert. denied, ___ U.S. ___, 120 S.Ct. 1180, 145 L.Ed.2d 1087 (2000); see Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 257,

cert. denied, ___ U.S. ___, 120 S.Ct. 86, 145 L.Ed.2d 73 (1998). Generally, comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility...