Commonwealth v. Philistin

774 A.2d 741, 565 Pa. 455, 101 A.L.R. 6th 775, 2001 Pa. LEXIS 1503
CourtSupreme Court of Pennsylvania
DecidedJuly 16, 2001
StatusPublished
Cited by14 cases

This text of 774 A.2d 741 (Commonwealth v. Philistin) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Philistin, 774 A.2d 741, 565 Pa. 455, 101 A.L.R. 6th 775, 2001 Pa. LEXIS 1503 (Pa. 2001).

Opinions

OPINION OF THE COURT

FLAHERTY, Chief Justice.

In 1995, in a trial by jury in the Court of Common Pleas of Philadelphia County, the appellant, Borgela Philistin a/k/a Bortela Philisten, was convicted of murder of the first degree, aggravated assault, possession with intent to deliver a controlled substance, and possession of an instrument of crime. In connection with the murder conviction, a sentencing hearing was held, as required by 42 Pa.C.S. § 9711, and appellant was sentenced to death. Terms of imprisonment were imposed for the other offenses. The present direct appeal ensued. We affirm.

On June 16, 1993, in the City of Philadelphia, two police officers made a routine traffic stop of a vehicle in which appellant was a passenger. When the officers approached the vehicle, appellant emerged, grabbed one of the officers’ guns, and began shooting. Appellant shot one officer in the head and abdomen, causing his death. He shot the other officer in the head and back, rendering him a paraplegic. At the time of this incident, appellant was acting as a drug courier and was transporting cocaine in the vehicle.

As is our duty in cases where a sentence of death has been imposed, see Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), we have reviewed the sufficiency of the evidence. The evidence was more than sufficient to sustain appellant’s conviction.

Evidence introduced at trial included appellant’s fingerprints on the gun used in the shooting and a statement given by appellant to police admitting that he was present at the crime scene and that he fired the gun. The statement contained an admission that appellant was in the process of delivering cocaine at the time of the incident. Gunpowder residue was found on appellant’s right hand. Blood on appellant’s clothing was of the same type as that of the wounded officers. In addition, various eyewitnesses testified to appellant’s presence at the crime scene. Police arrived just a moment after the shooting. They saw appellant and told him to stop, but appellant fled. Police pursued and apprehended him, and found a bag of cocaine near the point of his arrest.

Appellant’s first contention is that the sentencing court erred by denying his post-trial claim relating to the racial makeup of the jury. Asserting that there might have been an improper exclusion of jury members based on their race, and citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), appellant complains that he has been unable to obtain the jury selection questionnaires. He asserts that the questionnaires have not been preserved, and that, without access to those documents, he cannot construct an argument that jurors were improperly excluded.

Appellant’s assertion that jury questionnaires used during voir dire must be preserved for the benefit of the defense so that such forms can be used after trial to prepare a Batson claim that was not previously raised is meritless. The appropriate time for making a Batson challenge was during voir dire. Appellant waited [743]*743until the post-trial motion stage to raise this matter for the first time. Failure to object to the prosecutor’s use of peremptory challenges during voir dire results in a waiver of the issue. See Commonwealth v. Jasper, 531 Pa. 1, 9 n. 6, 610 A.2d 949, 953 n. 6 (1992) (affirming the rule that in capital cases “challenges to the selection of a jury can be waived by a failure to object appropriately.”). Accord Commonwealth v. Lewis, 523 Pa. 466, 475, 567 A.2d 1376, 1381 (1989). Further, appellant has not provided a scintilla of proof that any improper exclusion of jurors in fact occurred. It was appellant’s obligation to make a record that would permit review of a Batson challenge. Commonwealth v. Spence, 534 Pa. 233, 246-47, 627 A.2d 1176, 1182-83 (1993). The transcript of the voir dire, however, contains no references to the race of any of the prospective jurors. The racial composition of the jury that convicted appellant was established during a hearing on post-trial motions. Seven of the twelve jurors were black and five were white. Appellant is black. Nothing in the record indicates the race of any of the jurors who were not selected to serve, but it is clear that the majority of the chosen jury was of appellant’s own race. Appellant has utterly failed to present a cognizable Batson claim.

Appellant’s next contention concerns an outburst that occurred when the verdict of guilt as to murder of the first degree was announced. When the verdict was read, spectators in the courtroom cheered to show their approval. The court immediately stopped the outburst and admonished the spectators, stating, “Wait a minute, this is a courtroom, this is not a stadium. Now, I don’t care if you’re a policeman or the President of the United States, keep your mouth shut.” Proceedings were then adjourned for the day. Appellant contends that the outburst biased the jury towards finding in favor of a sentence of death at the subsequent penalty hearing and that the court erred in denying his motion for a mistrial and his motion to direct a verdict in favor of a sentence of life imprisonment. We do not agree.

As this court stated in Commonwealth v. Werts, 483 Pa. 222, 225-26, 395 A.2d 1316, 1318 (1978) (quoting Commonwealth v. Craig, 471 Pa. 310, 313, 370 A.2d 317, 319 (1977)), “ ‘[i]n the area of bystander misconduct, we have held that it is primarily within the trial judge’s discretion to determine whether the defendant was prejudiced by the misconduct.’ ” Further, “[wjhether and to what extent relief is due from an incident such as an emotional outburst in the courtroom is within the discretion of the trial court, and unless the unavoidable effect of the incident is to deny the defendant a fair trial, there is no error.” Commonwealth v. Bracey, 541 Pa. 322, 342, 662 A.2d 1062, 1072 (1995), cert. denied, 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996). Prejudice that might result from a spectator outburst can be cured through a remedial instruction to the jury. Commonwealth v. Savage, 529 Pa. 108, 116, 602 A.2d 309, 312-13 (1992); Commonwealth v. Marshall, 523 Pa. 556, 569, 568 A.2d 590, 596 (1989).

It is asserted by appellant that the trial court failed to provide any curative instruction to the jury after the outburst, and that jurors might therefore have been encouraged to impose a sentence of death. This assertion is simply false. The record reveals that a thorough curative instruction was given by the court before the penalty hearing commenced. The penalty stage proceedings did not begin until the day after the outburst occurred.

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Bluebook (online)
774 A.2d 741, 565 Pa. 455, 101 A.L.R. 6th 775, 2001 Pa. LEXIS 1503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-philistin-pa-2001.