Commonwealth v. Crenshaw

470 A.2d 451, 504 Pa. 33, 1983 Pa. LEXIS 814

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1983
• Docket: 80-3-479
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Chief Justice.

This appeal arises from the trial of appellant Robert Crenshaw in June of 1979 in connection with the stabbing death and robbery of Sara Tiers in her home on July 18, 1976, and the theft of a pocketbook from the home of Carol Havey on July 22, 1976. Appellant was found guilty of murder of the first degree, robbery, and two counts of burglary. Following the jury’s verdicts of guilty, a sentence of death was imposed on the verdict of murder of the first degree. Concurrent sentences of ten to twenty years’ imprisonment were imposed on the related robbery and burglary verdicts and ordered to run consecutive to the death sentence, and a sentence of five to ten years’ imprisonment was imposed on the second burglary verdict and ordered to run consecutive to all other sentences.

At the time of appellant’s arrest on August 23, 1976, appellant was also charged with murder, robbery and burglary in connection with the stabbing death of Barbara Coates on July 19, 1976. Upon motion of the Commonwealth, these charges were initially consolidated with the charges which form the basis of this appeal. Subsequently, the court granted a defense motion for severance, and the Commonwealth chose to try appellant first on the charges relating to Barbara Coates.¹ On May 17, 1977, following a trial by jury, appellant was found not guilty on all counts.

Trial on the charges relating to Sara Tiers was initially scheduled to commence one week later, on May 24, 1977. Defense counsel, however, requested and was granted a continuance in order to obtain the notes of testimony of the Barbara Coates trial, at which evidence relating to all the offenses with which appellant was charged had been admitted. Counsel also immediately filed a motion to dismiss the charges relating to Sara Tiers and Carol Havey on double jeopardy grounds, on the theory that evidence of these offenses had already been presented as part of the Commonwealth’s case-in-chief in the Barbara Coates trial. This motion was denied on November 4, 1977. Subsequent petitions for extensions of time filed by the Commonwealth pursuant to Criminal Procedural Rule 1100(c) were granted, resulting in the postponement of jury selection until October 16, 1978. Following the voir dire of a forty-five member jury panel on October 16, but prior to the selection of a jury, defense counsel became ill. He subsequently died in February 1979. New counsel was appointed to represent appellant, further Commonwealth extensions of time were granted, and jury selection ultimately began again on June 11, 1979, two years and ten months after appellant’s arrest.

Immediately prior to the commencement of voir dire on June 11, 1979, the Commonwealth announced for the first time that it would seek the death penalty in this case. Over defense objection, the court ruled that the case would be considered a capital case, in which the parties would be permitted to question the veniremen concerning the death penalty and would each be permitted to exercise twenty peremptory challenges. See Pa.R.Crim.P. 1126.

On this appeal appellant renews his claim, raised pre-trial, that trial should not have been permitted to proceed because it allegedly violated the constitutional prohibition against double jeopardy. In appellant’s view, because he had previously defended against the Commonwealth’s evidence when it was introduced at the earlier Barbara Coates trial, at which he was acquitted, he should not have been required to defend against this evidence a second time. In the Barbara Coates trial, evidence of the offenses committed against Sara Tiers and Carol Havey had been introduced by the Commonwealth, over defense objection, as tending to prove that appellant had committed the offenses against Barbara Coates as part of a common plan or scheme.

The constitutional prohibition against double jeopardy protects a defendant from being placed twice in jeopardy for the same offense. See generally Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). See also 18 Pa.C.S. § 109. However, where, as here, a defendant is charged with separate offenses, the only protection against successive trials available through the double jeopardy clause of the Fifth Amendment is the right embodied in the rule of collateral estoppel not to have a second trier of fact redetermine those issues “necessarily determined between the parties in the first proceeding.” Commonwealth v. Zimmerman, 498 Pa. 112, 117, 445 A.2d 92, 95 (1981) (emphasis in original). Accord, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Peluso, 481 Pa. 641, 393 A.2d 344 (1978).

Appellant argues that, in finding him not guilty of the offenses against Barbara Coates, the first jury must necessarily have decided that he did not commit the offenses against Sara Tiers and Carol Havey, which were before the jury as part of the Commonwealth’s case-in-chief. Appellant’s argument is premised on the view that, because the Commonwealth presented all offenses at the first trial as evidence of a common scheme, the jury’s verdict of not guilty must necessarily have reflected a finding that appellant was not guilty of any aspect of the scheme. This argument is not supported by the record of the first trial. The Commonwealth presented eyewitness identification testimony placing appellant near the scenes of the offenses against Sara Tiers and Carol Havey, but did not present any similar eyewitness testimony placing appellant at the scene of the offenses against Barbara Coates. Thus the jury could well have concluded that appellant’s guilt of the Barbara Coates offenses had not been proven beyond a reasonable doubt, without reaching a similar conclusion as to the other offenses.

Nor can appellant succeed on his theory that, even if the second trial was not barred completely by the first jury’s verdict, the Commonwealth was barred from admitting into evidence appellant’s confessions to the Sara Tiers and Carol Havey offenses, which, together with a confession to the Barbara Coates offenses, had been admitted at the first trial. There appellant had defended against these confessions, as he did again at the second trial, by alleging that they had been fabricated by police who physically coerced him to sign the incriminating statements. In' appellant’s view, because the first jury returned a verdict of not guilty, that jury must have believed appellant’s testimony that the confessions were coerced, and the Commonwealth should accordingly have been estopped from introducing any of the confessions at a second trial and relitigating the issue of voluntariness.

Appellant’s conclusion must be rejected because, as with the evidence relating to an alleged common scheme, it was not necessary for the jury to reach the same determination regarding each of the confessions. Because the jury had to determine appellant’s guilt or innocence only for the offenses relating to Barbara Coates, the jury did not need to reach an ultimate determination as to the voluntariness of appellant’s confessions to the other crimes. Compare Ashe v. Swenson, supra (where defendant was charged with the simultaneous robbery of six persons in a poker game and acquitted at a trial relating to one of the victims, jury’s verdict necessarily found that defendant was not one of the robbers, and thus subsequent trial relating to another victim was barred by collateral estoppel). Moreover, the jury may well have found appellant’s confessions to be voluntary by a preponderance of the evidence, see Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974), as did the suppression judge at the Jackson-Denno hearing, and yet have been unwilling to find appellant guilty beyond a reasonable doubt in the absence of any corroborating evidence directly connecting appellant to the offenses against Barbara Coates.²

Appellant also challenges the composition of his jury. Appellant, who is black, claims that the prosecution impermissibly exercised its peremptory challenges to strike all black prospective jurors in order to obtain an all-white jury. However, appellant has not established a record in support of his claim. Neither the parties’ briefs nor the record reveals the number of blacks on the venire in appellant’s case. Moreover, appellant did not establish the race of the veniremen on the record, making it impossible to determine from the record of the voir dire which prospective jurors were black and whether there was a basis other than race for excluding them by peremptory challenge. See Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981) (threshold inquiry in any case challenging the exercise of a prosecutor’s peremptory challenge is whether the record indicates discrimination in the jury selection of the defendant’s own case). See also Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981).

Like appellant’s challenge to the composition of the jury, appellant’s remaining claims of trial error provide no basis for relief. These claims challenge the consolidation of the offenses against Sara Tiers and Carol Havey, the trial court’s refusal to permit a particular question on voir dire on the ground that the question was improperly phrased, the denial of appellant’s motions to suppress his statements and physical evidence seized from his home pursuant to a search warrant, the admissibility of certain identification evidence, alleged prosecutorial misconduct in the closing argument, and the trial court’s refusal to give certain requested points for charge in the instructions to the jury. We have carefully considered each of these issues and find them to be without merit on the record.

In addition to his allegations of trial error, appellant challenges the application of the death penalty statute enacted on September 13, 1978, to his trial for offenses committed in 1976. He relies upon Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981), which held that the Legislature did not intend the Act of September 13, 1978, to apply to an offense committed prior to its effective date. Appellant further argues that the 1978 statute was unfairly applied in his case because, but for the extraordinary delay of almost three years in bringing him to trial following his arrest in August 1976, see supra at note 2, his trial would have been held prior to the enactment of the 1978 death penalty statute, thereby permitting a maximum sentence of life imprisonment. See Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert, denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978) (holding 1974 death penalty statute unconstitutional). The Commonwealth acknowledges that this Court’s holding in Story requires appellant’s death sentence to be vacated, but argues that the death sentence should be affirmed on the ground that Story was erroneously decided.³

Three months ago, in Commonwealth v. Truesdale, 502 Pa. 94, 465 A.2d 606 (1983), this Court unanimously rejected a similar argument that Story be reconsidered. The Court stated:

“The Commonwealth’s request that Story be reconsidered must be rejected, for principles of stare decisis and fundamental fairness, which are of paramount importance in the review of death sentences, manifestly require that the same interpretation of the 1978 death penalty statute be applied in our review of appellant’s case as was applied in Story.”

502 Pa. at 100, 465 A.2d at 608-609. Accord, Commonwealth v. Williams, 501 Pa. 292, 461 A.2d 593 (1983) (trial court order holding 1978 death penalty statute inapplicable to trial for 1977 offense affirmed per curiam). Thus, as in the cases of Story and Truesdale, the sentence of death must be vacated and a life sentence imposed.

The judgment of sentence of death is vacated and a sentence of life imprisonment imposed. The sentences imposed on the verdicts of burglary and robbery are affirmed, and are to run consecutive to the sentence of life imprisonment.

LARSEN, J., files a concurring and dissenting opinion.

1 . The Commonwealth was granted an extension of time for commencement of trial on the other charges pursuant to Criminal Procedural Rule 1100(c).

2 . Nor does the record support appellant’s claim that delay in bringing this case to trial constituted a violation of Rule 1100. Although the delay was extraordinary, resulting in trial thirty-four months after appellant’s arrest, this delay was occasioned by a combination of legitimate factors, including appellant’s successful request for a severance of the Barbara Coates charges, the parties’ unavailability for trial during the period of the Barbara Coates trial, appellant’s waiver of Rule 1100 while his pretrial motions were pending, his concurrence in extensions of time sought by the Commonwealth, the illness and death of his counsel, and the assignment of new counsel to represent him.

3 . The Commonwealth relies upon Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), which sustained the application of Florida’s revised death penalty law to an offense committed prior to the statute’s enactment. In so ruling, the Supreme Court held that changes in the law did not subject the defendant to trial under an ex post facto law since the revisions, which changed the forum for determining the death penalty from a jury to a judge acting with an advisory jury and removed the previous presumption in favor of the death penalty, were simply “procedural’’ or "ameliorative."

Appellant distinguishes Dobbert on the ground that Pennsylvania’s present death penalty statute, unlike the statute in Dobbert, makes the degree of proof at the death penalty hearing more onerous to the defendant than did the prior law. Although under the present statute the defendant may introduce any evidence relevant to the existence of mitigating circumstances and is not limited to an exclusive list of mitigating circumstances as he was under the 1974 statute, the existence of one or more mitigating circumstances is no longer an absolute bar to the imposition of the death penalty as it was under the 1974 statute. That statute provided: "If a murder of the first degree ... is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment.” Section 1311(d). Instead, under the 1978 statute, "[t]he verdict must be a sentence of death ... if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.” Section 1311(c)(l)(iv). Accordingly, because the jury found that there were mitigating circumstances in appellant’s case and nevertheless returned the death penalty, a result that would have been impermissible under the law in effect at the time the offenses were committed, appellant argues that he has been subjected to an ex post facto law under the standard announced in Dobbert.