Commonwealth v. Cull
Commonwealth v. Cull
Opinion of the Court
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The two related issues raised in this appeal from the order of the Superior Court reversing the order of the Philadelphia Court of Common Pleas granting a new trial are (1) whether a third-party witness’ testimony regarding appellant’s co-defendant’s statements incriminating appellant were admissible at trial, and (2) whether appellant’s trial counsel rendered ineffective assistance for failing to object to the admission of the third party’s testimony regarding appellant’s co-defendant’s statements. For the reasons set forth below, we find that the Superior Court properly reversed the trial court’s grant of appellant’s motion for a new trial because the statements made by appellant’s co-conspirator were properly admitted at trial and, therefore, trial counsel was not ineffective for failing to object to their admission.
Following a joint jury trial in the Philadelphia County Court of Common Pleas, appellant Cull and his co-defendant, Anthony Smith, were convicted of First-Degree Murder,
The Commonwealth appealed the trial court’s grant of a new trial to the Superior Court. The Superior Court in a unanimous panel opinion found that co-defendant Smith’s statements were admissible into evidence pursuant to the co-conspirator exception to the hearsay rule because they were made in furtherance of the conspiracy existing between appel
The evidence admitted at trial established that on September 13, 1988, the body of Sharon Smith was found in the basement of 248 North Wanamaker Street in Philadelphia. The victim had been shot once in the head with a .32 caliber Smith and Wesson firearm. A neighbor who lived in the rowhouse next door to 248 North Wanamaker Street testified that on Saturday, September 10, 1988, at approximately 8:00 a.m., she heard sounds of a scuffle and an argument coming from 248 North Wanamaker Street. The neighbor also heard the shouts and screams of male voices and one female voice come from both the first and second floors of the house. The neighbor heard the female voice scream, “Help me, help me, please,” shortly after which the shouts and screams abruptly stopped. Both appellant and his co-defendant were identified as the residents of the 248 North Wanamaker Street row-house. Several other witnesses testified that co-defendant Smith sold crack cocaine from the rowhouse, while appellant Cull often acted as a lookout for police activity.
About thirty minutes after the victim’s pleas for help were heard, another neighbor saw both appellant Cull and co-defendant Smith exiting 248 North Wanamaker Street. The two conspirators immediately drove to a nearby destination in the 100 block of Wanamaker Street, where they spoke to Faye Cherry, co-defendant Smith’s former girlfriend. Witness Cherry testified that Smith instructed her not to tell anyone
Witness Cherry further testified at trial that, in appellant’s presence, co-defendant Smith told her that “we just shot this fiend in the head and left her in the basement.” Smith told Cherry that they murdered their victim simply “because we wouldn’t give her no drugs and she threatened to call the cops.” Appellant Cull then interjected “I shot the bitch because she scratched me in my face.” Ms. Cherry testified that consistent with appellant Cull’s inculpatory statement, she observed scratches on his face. Before departing, Smith made certain that Cherry possessed no photographs of him from which he might be identified and requested her telephone number so that he could keep himself informed as to “what’s going on down here.”
Fitzroy Lewis, one of Smith’s drug suppliers, testified that Smith telephoned him at about 9:00 a.m. on the very same morning of the victim’s untimely demise, advising Mr. Lewis that he and appellant Cull were going to close the “crack house” and leave town. Apparently Smith had come to the realization that the aforementioned murderous deed would adversely affect their ongoing drug operation. Mr. Lewis testified that in explanation for their sudden move, Smith stated that he and appellant had just killed Sharon Smith because “she was giving some problem.” Smith described to Mr. Lewis how he and appellant Cull had dragged her down to the basement and beaten her, that appellant Cull had shot her at Smith’s direction, and that, after cleaning up the blood, the two men packed their belongings and left the house for the purpose of permanent relocation. Smith then asked Lewis to recommend a hotel where he and appellant could stay until nightfall, after which they could then travel to New York under the cloak of darkness. Smith telephoned Lewis several days later to say that he was in New York, but would soon be heading south.
According to Mr. Lewis’ testimony, Smith admitted to him that he had purchased a .32 caliber handgun several weeks before the murder. Lewis also testified that the night before
The medical examiner’s autopsy revealed that the victim had been struck by a single bullet in the left side of her head, which had pierced the skull and entered the brain. The medical examiner’s conclusion was that the cause of death, to a reasonable degree of medical certainty, was the gunshot wound to the head.
After searching fruitlessly for Smith for over three months, police finally located him in a North Carolina jail after which he was extradited to Philadelphia. At the time of his arrest, Smith gave a statement to the Philadelphia police placing himself at the scene of the crime but pinning the blame on appellant Cull for the murder. After four months of searching for appellant Cull, the police eventually captured him hiding in the closet of a house in Columbia, South Carolina.
At a joint trial for Smith and appellant Cull, the Commonwealth introduced the admissions of appellant Cull and co-defendant Smith to Faye Cherry and Fitzroy Lewis pursuant to the co-conspirator exception to the hearsay rule without any defense objection. Neither appellant nor co-defendant Smith testified at trial.
The first issue raised for this Court’s consideration is whether co-defendant Smith’s statements to Faye Cherry and Fitzroy Lewis incriminating appellant Cull were admissible against Cull. Appellant cites Bruton v. United States, 391 U.S. 123, 135-136, 88 S.Ct. 1620, 1627-28, 20 L.Ed.2d 476 (1968), for the proposition that the Confrontation Clause of the Sixth Amendment to the United States Constitution forbids the use of a non-testifying co-defendant’s statements as evidence against the defendant in a criminal trial. Appellant argues that Bruton prohibits the introduction of any of his co-defendant’s statements because his co-defendant chose not to take the stand at their joint trial.
However, two years after Bruton was decided, the Supreme Court held in Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970), that a criminal defendant’s constitutionally-guaranteed right to confront an adverse witness is not violated whenever the declarations of a non-testifying co-defendant possess strong indicia of reliability. In Dutton, the trial court permitted a prosecution witness to testify (pursuant to a Georgia statute allowing the admission of statements made in concealment of conspiracy), that an alleged accomplice, who was not tried with the appellee, stated to him while they were both in prison that had it not been for appellee, “we wouldn’t be in here now.” The Court of Appeals reversed the trial court finding that admission of the statement violated appellee’s right to confrontation under the Sixth Amendment. The Supreme Court, however, reversed the court of appeals holding that the out-of-court statement was admissible since it bore indicia of reliability that fully warranted its placement before the jury.
The Supreme Court recognized, as has this Court, that “the Sixth Amendment right of an accused to confront a witness against him is a fundamental right made obligatory to the states by the Fourteenth Amendment.” Id. at 80, 91 S.Ct. at
With respect to Smith’s statements to Fitzroy Lewis, Smith, again in Cull’s presence, told Lewis that appellant bad shot the victim since she was causing them problems, that they were leaving town, and that they needed a hotel room until they could escape to New York. Smith’s statements were corroborated by appellant’s own statements as well as the testimony of Deborah Coleman, the witness who lived next door to the place in which the victim’s body was found and who testified that she heard sounds of a scuffle and an argument and then abrupt silence coming from 248 North Wanamaker Street at the same time at which, per Smith’s admissions, the co-defendants were engaged in a altercation with the victim prior to killing her.
As in Dutton, there was overwhelming evidence that Smith’s statements to Cherry and Lewis were reliable. First, the statement made by Smith to Cherry and Lewis were spontaneous and they were against Smith’s penal interest (see Commonwealth v. Porter, 449 Pa. 153, 164, 295 A.2d 311, 316
Furthermore, these statements were admissible pursuant to the co-conspirator exception to the hearsay rule. This exception allows statements by a co-conspirator to be admitted against an accused if the statements are made
Here, Fitzroy Lewis testified that he had a telephone conversation with co-defendant Smith approximately an hour after the murder. During that conversation, Smith told Lewis that he and appellant Cull had just acted together to kill a woman and that he and Cull had both attempted to clean up and remove their belongings from the crack house which they operated following the shooting. Lewis further testified that Smith told him that they made the joint decision to close down their drug operation so that they could leave town in a hurry and escape detection. Further, Smith then asked Lewis to recommend a hotel where he and appellant could both stay until nightfall, after which they could then travel to New York under the cloak of darkness.
This evidence demonstrated that Smith and appellant Cull were engaged in jointly secreting evidence of the murder and acting jointly to escape detection and apprehension. Co-
Even without regard to whether these statements were admissible, however, appellant’s related claim that his trial counsel was ineffective for failing to object to the admission of these statements is without merit. A criminal defendant sustains a claim of ineffectiveness of counsel only if he proves: (1) that the underlying claim is of arguable merit; (2) that counsel’s performance had no reasonable basis; and (3) that counsel’s ineffectiveness worked to his prejudice. See Commonwealth v. Edmiston, 535 Pa. 210, 237, 634 A.2d 1078, 1092 (1993) (citation omitted). Trial counsel may not be deemed ineffective in cases in which the defendant cannot demonstrate that he was prejudiced from his trial counsel’s performance. Id.
Here, appellant himself admitted that he “shot the bitch because she scratched me in my face.” Consistent with this admission, Cherry observed scratches on appellant’s face. Therefore, given appellant’s own incriminatory statement and the other overwhelming evidence in this case demonstrating appellant’s guilt, no prejudice occurred as a result of the admission of co-defendant Smith’s statements to Cherry and Lewis. See Commonwealth v. Peterkin, 538 Pa. 455, 464, 649 A.2d 121, 125 (1994) (capital murder defendant did not receive ineffective assistance of counsel when his attorney failed to object to prosecution’s closing argument because any prejudice from those remarks was outweighed by overwhelming other evidence of guilt).
As U.S. Supreme Court Justice Cardozo wrote in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934):
There is danger that the criminal law will be brought into contempt ... if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.
291 U.S. at 122, 54 S.Ct. at 338.
The statements of co-defendant Smith having not violated the Confrontation Clause and having not caused any prejudice to appellant, provides no basis for disturbing appellant’s convictions. Accordingly, we hereby affirm the Superior Court’s reversal of the trial court’s grant of a new trial, and remand the matter to the trial court for proceedings consistent with this opinion.
PAPADAKOS, J., did not participate in the decision of this case.
CAPPY, J., concurs in the result.
MONTEMURO, J., is sitting by designation.
. 18 Pa.C.S. § 2502(a).
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 907.
. In Coccioletti, this Court determined that there is no Confrontation Clause violation from the admission of a co-defendant’s out-of-court
. The justification of this rule is to be sought in the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt. Commonwealth v. Vallone, 347 Pa. 419, 421, 32 A.2d 889, 890 (1943). Its probative force is derived not from the credibility of the accuser but from the silence of the accused in response to it. Id. This rule is not applicable in criminal cases where the defendant is in police custody or in the presence of police officers because a contrary policy would effectively vitiate a defendant’s constitutionally-guaranteed right against self-incrimination. See Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) (implied admissions by silence are inadmissible if occurring in police custody or presence because of the encroachment upon constitutional protections against self-incriminating statements, overruling in part Commonwealth v. Vallone, supra). But see Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973) (implied admissions made while free from police custody or presence are. admissible into evidence). Here, appellant Cull rendered his inculpatory statement only in the presence of his co-defendant Smith and Commonwealth witness Faye Cherry. Accordingly, there is no danger of a constitutional violation on these grounds.
. Appellant also asserts a Bruton violation and trial counsel ineffectiveness for counsel’s failure to object to Faye Cherry’s statement that co-defendant Smith telephoned her approximately one and one-half months following the murder and told her that appellant Cull was solely
Concurring Opinion
concurring.
I concur in the result reached by the majority. I would affirm the conviction simply because the witness testimony in question was admissible and there was, therefore, no ineffectiveness in failing to object to its admission. The court’s discussion concerning lack of prejudice and overwhelming evidence is dicta.
NIX, C.J., and ZAPPALA, J., join this concurring opinion.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Demetrius CULL, Appellant
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- 18 cases
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- Published