vs. vs. vs. IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIALS DIVISION

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1 IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIALS DIVISION COMMONWEALTH vs. JIMEL LAWSON COMMONWEALTH vs. JEHMAR GLADDEN COMMONWEALTH vs. TERRENCE LEWIS OCTOBER TERM, 1 : BILL NO. 1 1/ : NO. 1 - MURDER NO. - ROBBERY NO. - CARR FIREARMS W/O LIC : NO. - CARR FIREARMS PUB ST/P : NO. - THEFT UNL TAK/DISP NO. - THEFT REC STOL PROPERT NO. - POSS INSTRU CRIME NO. - CRIMINAL CONSPIRACY OCTOBER TERM, 1 BILL NO. 1 / : NO. 1 - MURDER : NO. - ROBBERY : NO. - CARR FIREARMS W/O LIC NO. - CARR FIREARMS PUB ST/P : NO. - THEFT UNL TAK/DISP : NO. - THEFT REC STOL PROPERT NO. - POSS INSTRU CRIME NO. - CRIMINAL CONSPIRACY JANUARY TERM, 1 : BILL NO. 0 1/1 NO. 1 - MURDER NO. - ROBBERY : NO. - CARR FIREARMS W/O LIC NO. - CARR FIREARMS PUB ST/P NO. - THEFT UNL TAK/DISP NO. - THEFT REC STOL PROPERT NO. POSS INSTRU CRIME : NO. - CRIMINAL CONSPIRACY JURY TRIAL MAY, 1 COURTROOM 01, CRIMINAL JUSTICE CENTER PHILADELPHIA, PENNSYLVANIA BEFORE: THE HONORABLE JAMES A. LINEBERGER, J.

2 APPEARANCES: JOHN DOYLE, ESQ. ASSISTANT DISTRICT ATTORNEY FOR THE COMMONWEALTH DONALD M. PADOVA, ESQ. FOR DEFENDANT JIMEL LAWSON NINO V. TINARI, ESQ. FOR DEFENDANT JEHMAR GLADDEN THOMAS W. MOORE, JR., ESQ. FOR DEFENDANT TERRENCE LEWIS

3 P R O C E E D I N G S THE JURY IN, ALL RIGHT. MR. FULLER, BRING THE TIPSTAFF: YES, SIR. (THE JURY ENTERED THE COURTROOM,) 1 1 GENTLEMEN. THE JURY: GOOD MORNING, LADIES AND GOOD MORNING. LADIES AND GENTLEMEN, BEFORE 1 1 I SEND YOU OUT TO DELIBERATE ON THIS CASE, THERE ARE A FEW MORE ISSUES I'D LIKE TO HIGHLIGHT WITH REGARD TO YOUR ROLE IN THIS MATTER. REMEMBER IT'S MY RESPONSIBILITY TO DECIDE 1 ALL QUESTIONS OF LAW AND IT'S YOUR OBLIGATION TO FOLLOW MY INSTRUCTIONS ON THE LAW. I REMIND YOU, HOWEVER, THAT I'M NOT THE TRIER OF FACTS. YOU AND YOU ALONE ARE THE JUDGES OF THE FACTS. MY INSTRUCTION TO YOU WILL BE THAT YOU SHOULD APPLY THE LAW AS I'VE GIVEN IT TO YOU TO THE FACTS AS YOU FIND THEM IN THIS CASE IN

4 RENDERING A DECISION WITH REGARD TO THE GUILT OR INNOCENCE OF EACH OF THESE INDIVIDUALS SEPARATELY. AS I TOLD YOU BEFORE, VERDICT COMES FROM THE LATIN TERM VERE DICTUM, WHICH MEANS TO SPEAK THE TRUTH. AND IN ORDER FOR YOU TO FIND A DEFENDANT GUILTY OR NOT GUILTY IN THIS CASE, IT MUST BE UNANIMOUS, WHICH MEANS THAT ALL 1 OF YOU MUST AGREE. THERE'S NO FRACTIONAL WAY THAT YOU CAN REACH A VERDICT IN THIS CASE. SO 1 CONSEQUENTLY, YOU SHOULD GO IN WITH AN ATTITUDE 1 TOWARDS REACHING A VERDICT. AND AS I SAID TO 1 1 YOU YESTERDAY AND I SAY IT AGAIN, BECAUSE IT'S TERRIBLY IMPORTANT, EACH OF YOU MUST MAKE UP YOUR OWN MIND. EACH OF YOU SHOULD NOT HESITATE TO CHANGE YOUR INITIAL THINKING IF YOUR FELLOW JURORS CONVINCE YOU THAT YOUR INITIAL THINKING 1 WAS ERRONEOUS. HOWEVER, YOU SHOULD NOT SURRENDER AN HONEST OPINION MERELY TO GO ALONG WITH THE CROWD, PARTICULARLY IF IT WOULD, IN FACT, DO VIOLENCE TO YOUR INDIVIDUAL JUDGMENT. AS I SAID BEFORE, FROM YOUR RANKS YOU WILL SELECT ONE INDIVIDUAL WHO'LL BE THE FOREPERSON, AND THAT PERSON WILL BE RESPONSIBLE

5 FOR COMMUNICATING WITH THIS COURT AND ANNOUNCING IN OPEN COURT A VERDICT ONCE YOU HAVE REACHED A VERDICT IN THIS CASE. NOW, YOU SHOULD KEEP YOUR DELIBERATIONS FREE OF BIAS OR PREJUDICE, BECAUSE THE COMMONWEALTH AND THE DEFENSE EXPECT YOU TO BE FREE OF ANY BIAS OR PREJUDICE IN ARRIVING AT A VERDICT. I GO ON TO 1 1 TELL YOU THAT IN ARRIVING AT A VERDICT, YOUR VERDICT MUST BE AS A RESULT OF THE EVIDENCE OR THE LACK THEREOF AS IT PERTAINS TO EACH INDIVIDUAL SEPARATELY. YOU SHOULD NOT CONCERN YOURSELF WITH WHAT THE CONSEQUENCES SHOULD OR WILL BE SHOULD YOU FIND THE DEFENDANT GUILTY OR NOT GUILTY. THE QUESTION OF GUILT AND THE QUESTION OF PENALTY ARE DECIDED SEPARATELY. IN CLOSING I WOULD LIKE TO SUGGEST THAT IT WILL BE A LOT EASIER AND MORE COMFORTABLE IN YOUR DELIBERATIONS IF YOU WOULD RESPECT THE FEELINGS OF YOUR RESPECTIVE COLLEAGUES DURING THE DELIBERATIONS, AND YOU SHOULD KEEP IT AS CORDIAL AS YOU CAN POSSIBLY DO SO. WILL JUROR NO, 1 STEP DOWN, PLEASE.

6 (ALTERNATE EXCUSED.) LADIES AND GENTLEMEN OF THE JURY, BE PATIENT AND DELIBERATE. DO NOT BE HASTY IN YOUR ARRIVING AT A VERDICT IN THIS CASE. LADIES AND GENTLEMEN OF THE JURY, YOU MAY RETIRE TO BEGIN TO DELIBERATE. :1 A.M.) (THE JURY RETIRED TO DELIBERATE AT ALL RIGHT. GENTLEMEN, IT'S :. I REALIZE YOU HAVE BUSY SCHEDULES, AND I KNOW THAT ONE JUDGE IS SPECIFICALLY WAITING FOR ONE OF YOU. MY INSTRUCTION IS YOU SHOULD NOT BE MORE THAN MINUTES AWAY. 1 MR. PADOVA: YES, SIR. WHICH MEANS THAT IF YOU'RE TRAVELING BY SURFACE TRANSPORTATION, I'M EXPECTING YOU HERE IN MINUTES. SO IF YOU CAN DO THAT AND GO TO NORTHEAST AIRPORT, THAT'S FINE WITH ME, OR YOU CAN CAMP OUT DOWN IN THE LOBBY. WERE THERE ANY DOCUMENTS? NOTHING WAS

7 INTRODUCED? WHAT DID YOU INTRODUCE? MR. DOYLE: INTRODUCING -- ONLY THING I ENDED UP ONE DOCUMENT IN WRITING. THAT DOES NOT GO OUT. MR. DOYLE: NO PHOTOGRAPHS. THERE'S NOTHING THAT GOES OUT, ABOUT IT, THEY DON'T HAVE TO WORRY 1 THE TIPSTAFF: OKAY. 1 ( RECESS TAKEN,) 1 1 ALL RIGHT. GIVE ME THE NOTE, MR. FULLER. GENTLEMEN, I TAKE IT YOU HAVE REVIEWED THE QUESTIONS POSED BY THE FOREPERSON IN THE 1 MATTER DATED /, :. IT STARTS WITH, "YOUR HONOR, SUBPARAGRAPH 1, WHAT HAPPENED TO THE PIECE OF EVIDENCE, BLOODY ANTENNA? WHOSE BLOOD WAS IT? WHY WASN'T THAT PRESENTED AS EVIDENCE?" I DON'T KNOW WHAT THEY'RE TALKING ABOUT, NUMBER ONE, THERE'S NO EVIDENCE PRESENTED WITH

8 l REGARD TO ANY ANTENNA. THERE WAS AN ALLUSION MADE ABOUT SOME STRAIGHT PIPE THAT YOU SMOKE CRACK WITH. MR. TINARI: MAY I, RESPECTFULLY, SPEAK TO THAT, YOUR HONOR? THERE WAS CROSS-EXAMINATION AS TO THE ANTENNA WHEN THEY -- THE POLICE OFFICER WAS PLACED ON THE STAND. MR. TINARI: WHAT WAS THE QUESTION? THE QUESTION WAS, DID YOU 1 1 HAVE AN OPPORTUNITY TO LOCATE AN ANTENNA? DID YOU PLACE IT ON A PROPERTY RECEIPT? YES. YES. AND WHERE EXACTLY DID YOU FIND IT? AND THAT 1 WAS THE ENTIRE AREA OF EXAMINATION IN THAT REGARD. 1 MR. DOYLE: MR. TINARI: IT WAS NOTHING ABOUT BLOODY. NOT BLOODY, BUT RATHER 1 DUSTED FOR LATENT PRINTS. IF YOU RECALL, IT'S A METAL PIECE OF OBJECT, SOMETHING THAT IS EASILY AMENABLE TO PRINTS. TESTIMONY THAT EVOLVED. THAT'S THE MR. DOYLE: SOMEBODY MISHEARD IF THEY'RE ASKING ABOUT WHOSE BLOOD. ANTENNA. THERE WAS NO BLOODY

9 WELL, I AM NOT PRESENTING ANY EVIDENCE IN THIS CASE. I CAN'T TELL THEM WHAT THERE WAS OR WAS NOT. NOW THAT MR, TINARI HAS MENTIONED THAT THERE WAS, IN FACT, A QUESTION REGARDING AN ANTENNA, THE ANSWER TO THE QUESTION IS, NUMBER ONE, THAT THERE WAS NO ANTENNA PHYSICALLY PRESENTED IN THIS TRIAL. MR, TINARI: MAY I SPEAK TO THAT, YOUR HONOR? PERHAPS THE BETTER WAY, MAYBE THE COURT WOULD RECONSIDER, THAT THE ANSWER TO THAT QUESTION, THAT THEY MUST RELY UPON THEIR OWN MEMORIES AS TO EVIDENCE CONCERNING AN ANTENNA. AND I THINK THAT THAT KEEPS IT NEUTRAL BOTH FOR THE COMMONWEALTH AND FOR -- ALL RIGHT. OKAY, ALL RIGHT, 1 I'LL DO IT THAT WAY, 1 MR, DOYLE: I WOULD, YOUR HONOR, I WOULD RECOMMEND -- I HAVE JUST A LITTLE BIT OF A SLANT, I DON'T HAVE A PROBLEM WITH THAT SUGGESTION. WHAT I WOULD SAY, YOU ARE NOT TO SPECULATE ABOUT -- SPECIFICS. MR. DOYLE: I'M NOT GOING TO GET INTO ANY JUST EVALUATE THE EVIDENCE IN

10 FRONT OF YOU AND RELY ON YOUR RECOLLECTION. MR. TINARI: YES. "CAN WE HEAR BACK THE TESTIMONY OF LENA LAWS REGARDING WHERE MR. HOWARD WAS SHOT?" THE ANSWER TO THAT QUESTION IS ALSO NO. THEY MUST RELY ON THEIR RECOLLECTION, COLLECTIVE RECOLLECTION OF THE EVIDENCE. "CAN WE OF THE HOUSE? SEE THE POLICE OFFICER'S DIAGRAM 1 NO. IT WAS NOT INTRODUCED AS EVIDENCE. 1 MR. DOYLE: YOUR HONOR, I WOULD SAY, NO, YOU MUST RELY ON THE EVIDENCE BEFORE YOU. I DON'T KNOW WHAT THEY'RE 1 1 ASKING FOR. NEXT DOOR. THEY MAY WANT TO KNOW WHO LIVES I'M NOT GOING TO SPECULATE AS TO WHY THEY'RE ASKING. ALL I'M GOING TO SAY IS 1 NO. IT WAS NOT INTRODUCED. MR. DOYLE: SHOULD BE JUST NO. JUST SAY -- WELL, THE ANSWER MR. TINARI: WE CAN ACCEPT THAT, YOUR HONOR. "CAN WE SEE PHOTOGRAPHS THAT JIMEL LAWSON'S LAWYER WAS LOOKING AT ON MONDAY

11 MORNING?" MR. TINARI: YOUR HONOR KNOWS MY REQUEST. THE ANSWER TO THAT QUESTION IS NO. THEY MUST DECIDE THIS CASE BASED ON THE EVIDENCE AS IT EMANATED FROM THE WITNESS STAND. MR. PADOVA: MR. PADOVA: OR LACK OF EVIDENCE. WHAT? OR THE LACK OF EVIDENCE, THE LACK OF EVIDENCE WOULD NOT EMANATE FROM THE WITNESS STAND, 1 MR, DOYLE: JUDGE, I WOULD ASK YOU MERELY 1 ANSWER THE QUESTIONS NO. 1 OUT OF COURTESY. ANYWAY. I'M SURE HAPPY I'M DOING THIS I'M GOING TO DO WHAT I WANT 1 BRING THEM IN, MR, FULLER. THE TIPSTAFF: YES, SIR. 1 OFF THE RECORD. (DISCUSSION OFF THE RECORD.) {THE JURY ENTERED THE COURTROOM WITH A QUESTION AT : A.M.)

12 1 LADIES AND GENTLEMEN, I HAVE NOTES FROM THIS JURY IN GENERAL. I WILL TELL YOU THIS BEFORE I ADDRESS A SPECIFIC QUESTION. IN PENNSYLVANIA WE DO NOT PERMIT JURIES OR JURORS TO TAKE NOTES. WE ARE INSTRUCTED TO INSTRUCT THE JURY THAT THEY MUST RELY ON THEIR COLLECTIVE RECOLLECTION OF THE EVIDENCE AS IT EMANATES FROM THE WITNESS STAND. THAT YOU MUST DO. YOU MUST NOT SPECULATE ABOUT SOMETHING THAT'S NOT IN EVIDENCE. 1 NOW, "WHAT HAPPENED TO THE PIECE OF 1 EVIDENCE, BLOODY ANTENNA?" YOU HAVE TO RELY ON YOUR RECOLLECTION AS 1 1 TO WHETHER OR NOT THERE WAS SUCH A THING. YOUR RECOLLECTION THAT'S CONTROLLING IN THE CASE, AND THE QUESTION, "WHY WASN'T IT IT'S 1 PRESENTED IN EVIDENCE'' IS ASSUMING THAT THERE WAS SOMETHING. SECOND. "CAN WE HAVE READ BACK THE TESTIMONY FROM LENA LAWS REGARDING WHERE MR. HOWARD WAS SHOT?" NO. THIS IS A RELATIVELY SHORT TRIAL. IT'S ONLY BEEN A COUPLE DAYS AGO THAT MISS LAWS TESTIFIED, AND SOMEBODY THERE SHOULD BE ABLE TO

13 1 REMEMBER IT AND CAN REFRESH THE OTHERS' RECOLLECTION. "CAN WE THE HOUSE?" NO. "CAN WE SEE POLICE OFFICER'S DIAGRAM OF SEE PHOTOGRAPHS THAT JIMEL LAWSON'S LAWYER WAS LOOKING AT ON MONDAY MORNING?" HE MIGHT HAVE BEEN LOOKING AT PHOTOGRAPHS OF INDIVIDUALS FROM DELILAH'S, FOR ALL YOU KNOW. SO IT'S NONE OF YOUR BUSINESS. IT'S NOT EVIDENCE IN THE CASE, SO DON'T SPECULATE AND LOOK FOR THINGS THAT ARE NOT THERE. "WAS HEROIN DISCUSSED AT ALL IN LENA'S TESTIMONY?" IT'S YOUR RECOLLECTION WHAT LENA'S TESTIMONY WAS THAT'S CONTROLLING IN THE CASE, 1 NOT MINE, NOT THE LAWYERS'. YOURS. "SHOULD YOUR DECISION AS TO A VERDICT OF GUILTY OR NOT GUILTY BE BASED SOLELY ON EVIDENCE PRESENTED OR STATED?" WHAT ELSE COULD IT BE BASED ON? ON THE FACT THAT MY HAIR IS GRAY? OR THE FACT THAT I WEAR A ROBE? YOUR DECISION WITH REGARD TO THE

14 GUILT OR INNOCENCE OF EACH OF THESE INDIVIDUALS SEPARATELY MUST BE BASED ON THE EVIDENCE AS IT WAS PRESENTED AND NOTHING ELSE. ON THE EVIDENCE THAT'S PRESENTED. MUST BE BASED COMMONWEALTH HAS THE BURDEN OF CONVINCING YOU OF THEIR GUILT BEYOND A REASONABLE DOUBT. IT MUST BE UNANIMOUS FOR YOU TO FIND THEM GUILTY OR NOT GUILTY, YOU HAVE FOUR OPTIONS FOR EACH. GUILTY, NOT GUILTY, OF FIRST DEGREE, SECOND 1 DEGREE MURDER, OR THIRD DEGREE MURDER, ARE YOUR FOUR OPTIONS FOR EACH OF THESE THOSE 1 INDIVIDUALS. I CAN'T THINK OF ANYTHING ELSE THAT I CAN TELL YOU UNDER THE CIRCUMSTANCES, DO NOT GO OUTSIDE OF THE EVIDENCE THAT HAS BEEN PRESENTED IN THIS CASE IN TRYING TO REACH SOME COMPROMISE. YOU MAY RESUME YOUR DELIBERATIONS. MR, MOORE: COULD WE SEE YOU AT SIDE BAR? HOLD IT. THESE GENTLEMEN WANT TO SECOND-GUESS ME. {DISCUSSION IN ROBING ROOM AS FOLLOWS:) WE'RE BACK HERE AT THE

15 REQUEST OF THE DEFENSE. WHAT IS IT? MR. TINARI: YOUR HONOR, MR. PADOVA RAISED THE QUESTION. NOT ONLY MUST THEY CONSIDER THE EVIDENCE AS PRESENTED BUT ALSO THE LACK OF EVIDENCE. I THINK IN THIS INSTANCE WHAT IS OCCURRING, IF I MAY, WITH ALL DUE RESPECT TO THE COURT, THIS JURY IS CONCERNED ABOUT THE LACK OF EVIDENCE HERE, NOT SO MUCH THE EVIDENCE PRESENTED. AND I THINK, YOUR 1 HONOR, THAT IN RESPONSE TO THE JURY, THAT IN 1 ALL FAIRNESS TO THE DEFENDANT, WE WOULD ASK THAT YOUR HONOR RECONSIDER THAT PORTION OF YOUR INSTRUCTIONS TO THEM WHEN YOU WERE 1 ADDRESSING THOSE PARTICULAR QUESTIONS. IT 1 APPEARS, EVEN THE LAST QUESTION YOUR HONOR RECEIVED FROM THEM, IT IS A QUESTION OF FAILURE 1 TO PRESENT EVIDENCE. IT'S PART OF YOUR CHARGE. ALL RIGHT. I'LL DO THAT. MR. MOORE: THAT'S MY REQUEST AS WELL. YOU HAVE AN OBJECTION? REQUEST. MR. MOORE: NO. I SAID THAT WAS MY YES, I'LL DO THAT.

16 1 MR. TINARI: OFF THE RECORD. (DISCUSSION OFF THE RECORD.) LADIES AND GENTLEMEN OF THE JURY, WITH RESPECT TO THE EVALUATION OF THE EVIDENCE IN THIS MATTER, I NEGLECTED TO USE THE WORD EVALUATE THE EVIDENCE OR THE LACK THEREOF IN THE MATTER. SO YOU WEIGH IT. AND IF THERE'S ENOUGH EVIDENCE TO CONVINCE YOU BEYOND 1 A REASONABLE DOUBT, YOU CONVICT. AND IF IT 1 DOES NOT CONVINCE YOU BECAUSE OF THE LACK THEREOF, THEN YOU DON'T CONVICT. IT'S JUST THAT SIMPLE. I'M NOT TRYING TO GIVE YOU ANY 1 HINTS IN ANY WAY IN WHICH DIRECTION I THINK YOU 1 SHOULD GO, BECAUSE THE BALL IS IN YOUR COURT, IF I MAY USE A TENNIS METAPHOR. 1 YOU MAY RESUME DELIBERATIONS. THE TIPSTAFF: WATCH YOUR STEP, FOLKS. 1:0 P.M.) (THE JURY RESUMED DELIBERATIONS AT

17 1 (THE JURY ENTERED THE COURTROOM WITH A 1 QUESTION AT : P.M.) GENTLEMEN, I HAVE A NOTE FROM THE JURY DATED :, /, WHICH READS, "YOUR HONOR, CAN YOU PLEASE BRIEFLY DEFINE THE DIFFERENCE BETWEEN FIRST, SECOND, AND THIRD DEGREE MURDER," IS THEIR SIMPLE REQUEST. BRING THEM IN, MR. FULLER, 1 THE TIPSTAFF: YES, SIR. 1 (THE JURY ENTERED THE COUTROOM WITH A QUESTION AT : P.M.) 1 FOREPERSON RISE, PLEASE. I 1 HAVE A NOTE FROM YOU WHICH READS, "CAN YOU 1 PLEASE BRIEFLY DEFINE THE DIFFERENCE BETWEEN FIRST, SECOND, AND THIRD DEGREE MURDER?" I WILL GIVE YOU THE DEFINITION OF FIRST, SECOND AND THIRD DEGREE MURDER, AND YOU SHOULD BE ABLE TO DISCERN THE DIFFERENCE ALL RIGHT. VERY WELL. THANK YOU VERY MUCH. AS I TOLD YOU EARLIER, THE DEFENDANTS IN THE CASE ARE CHARGED WITH TAKING THE LIFE OF

18 ANOTHER HUMAN BEING WITHOUT LEGAL JUSTIFICATION. THERE ARE FOUR POSSIBLE VERDICTS THAT YOU MIGHT REACH IN THIS CASE. NOT GUILTY, GUILTY OF ONE OF THREE TYPES OF MURDER, FIRST DEGREE, SECOND DEGREE, OR THIRD DEGREE. BEFORE DEFINING THE SPECIFIC MURDER CHARGES, IT'S NECESSARY FOR ME TO TALK ABOUT THE WORD MALICE, M-A-L-I-C-E. MALICE, AS I'M USING IT, HAS A SPECIAL LEGAL MEANING. IT DOES NOT MEAN SIMPLE HATRED, 1 SPITE, OR ILL WILL. MALICE IS A SHORTHAND WAY 1 OF REFERRING TO ANY OF THE THREE DIFFERENT MENTAL STATES THAT THE LAW REQUIRES AS BEING BAD ENOUGH TO MAKE A KILLING MURDER. THUS, A KILLING IS WITH MALICE IF THE KILLER ACTS WITH, FIRST, THE INTENT TO KILL, OR AN INTENT TO INFLICT SERIOUS BODILY INJURY, OR THIRD, A WICKEDNESS OF DISPOSITION, HARDNESS OF HEART, CRUELTY, RECKLESSNESS OF CONSEQUENCE, AND A MIND REGARDLESS OF SOCIAL DUTY INDICATING AN UNJUSTIFIED DISREGARD FOR THE PROBABILITY OF DEATH OR GREAT BODILY HARM AND AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE. CONSCIOUS DISREGARD OF AN UNJUSTIFIED AND A

19 1 EXTREMELY HIGH RISK THAT HIS ACTION MIGHT CAUSE DEATH OR SERIOUS BODILY HARM, THERE IS A SPECIAL RULE FOR HOW MALICE CAN BE PROVED IF SECOND DEGREE MURDER IS SOUGHT. I'LL GIVE THAT DEFINITION AND POINT 1 1 THAT OUT TO YOU WHEN I GET TO SECOND DEGREE MURDER. NOW LET'S GO TO FIRST DEGREE MURDER, IN ORDER TO FIND ONE OR ALL OR TWO OR MORE OF THESE DEFENDANTS GUILTY OF FIRST DEGREE MURDER, YOU MUST BE SATISFIED THAT THE COMMONWEALTH HAS PROVEN BEYOND A REASONABLE DOUBT THAT THE KILLER, THE KILLER ACTING AS AN INDIVIDUAL OR AS A CO-CONSPIRATOR OR AS AN ACCOMPLICE KILLED HULON HOWARD. FIRST IS THAT HOWARD IS DEAD, SECOND IS THAT THE DEFENDANT, ACTING AS AN INDIVIDUAL OR CO-CONSPIRATOR OR AN ACCOMPLICE, AND I HAVE REFERENCED TO EACH ONE SEPARATELY, KILLED HIM, AND THAT THE DEFENDANT DID SO WITH THE SPECIFIC INTENT TO KILL. THAT'S THE KEY TO FIRST DEGREE MURDER AND HOW IT DIFFERS FROM THIRD DEGREE MURDER, A PERSON HAS THE SPECIFIC INTENT TO KILL IF HE HAS A FULLY FORMED INTENT TO KILL AND IS CONSCIOUS OF HIS OWN INTENTION.

20 AS MY EARLIER DEFINITION OF MALICE INDICATES, A KILLING BY A PERSON WHO HAS THE SPECIFIC INTENT TO KILL IS A KILLING WITH MALICE, PROVIDED IT IS ALSO WITHOUT CIRCUMSTANCES REDUCING THE KILLING TO VOLUNTARY MANSLAUGHTER OR ANY LAWFUL JUSTIFICATION OR EXCUSE, WHICH IS NOT APPLICABLE IN THIS CASE. STATED DIFFERENTLY, A KILLING IS WITH THE SPECIFIC INTENT TO KILL IF IT'S WILLFUL, DELIBERATE, AND PREMEDITATED, THE SPECIFIC INTENT TO KILL INCLUDED IN THE PREMEDITATION NEEDED FOR FIRST DEGREE MURDER DOES NOT REQUIRE PLANNING OR PREVIOUS THOUGHT OR ANY PARTICULAR LENGTH OF TIME. IT CAN OCCUR QUICKLY. ALL THAT IS NECESSARY IS THERE BE TIME ENOUGH SO THAT THE DEFENDANT CAN AND DOES FULLY FORM AN INTENT TO KILL AND IS CONSCIOUS OF THAT INTENTION, WHEN DECIDING WHETHER A DEFENDANT HAD THE SPECIFIC INTENT TO KILL, YOU SHOULD CONSIDER ALL THE EVIDENCE REGARDING HIS WORDS AND CONDUCT AND THE ATTENDING CIRCUMSTANCES THAT MIGHT SHOW HIS STATE OF MIND. IF YOU BELIEVE THAT THE DEFENDANT -- NOW, WHEN I SAY THAT, I

21 REMIND YOU THAT I'M TALKING ABOUT THE DEFENDANTS AS AN INDIVIDUAL OR AS AN ACCOMPLICE OR CO-CONSPIRATOR USED A DEADLY WEAPON ON A VITAL PART OF THE VICTIM'S BODY, YOU MIGHT REGARD THAT AS AN ITEM OF CIRCUMSTANTIAL EVIDENCE FROM WHICH YOU MAY, YOU CHOOSE, INFER THAT THE DEFENDANT HAD THE SPECIFIC INTENT TO KILL. IF IF YOU WERE TO FIND THAT ONE INDIVIDUAL CAUSED THE DEATH OF THE DECEDENT IN THE CASE, YOU MUST BE CONVINCED BEYOND A REASONABLE DOUBT THAT THE OTHERS SHARED THE INTENT TO KILL IN ORDER TO FIND THOSE WHO DID NOT GUILTY OF FIRST DEGREE MURDER. NOW, IT DIFFERS FROM SECOND AND THIRD, BUT THE KEY TO FIRST DEGREE MURDER AND THE THING THAT SETS IT APART IS THE SPECIFIC INTENT TO KILL. SECOND DEGREE MURDER IN PENNSYLVANIA IS OFTEN REFERRED TO AS FELONY MURDER. FOR EXAMPLE, ROBBERY IS A FELONY, FOR EXAMPLE, KIDNAPPING IS A FELONY, ARSON IS A FELONY, AND A NUMBER OF OTHERS, RAPE, AND SOME MORE. WHEN THERE IS A DEATH CAUSED IN THE FURTHERANCE OF A FELONY, IT'S OFTEN CALLED FELONY MURDER, AND I

22 GAVE YOU AN EXAMPLE, YOU MIGHT RECALL, ABOUT THE INDIVIDUAL WHO BURNED THE HOUSE DOWN AND THE MOTHER-IN-LAW WAS SLEEPING IN THE BACK AND NO ONE KNEW SHE WAS THERE. THE ARSON WAS THE FELONY AND THE DEATH THEN MAKES IT RISE TO SECOND DEGREE MURDER, THE FELON NEED NOT INTEND TO KILL ANYONE OR ANTICIPATE THAT ANYONE WILL BE KILLED, THE PERSON KILLED CAN BE SOMEONE OTHER THAN THE VICTIM OF A FELONY, HE 1 NEED NOT DIE IMMEDIATELY, HE MAY DIE LATER AND AT A DIFFERENT PLACE. 1 NOW, YOU MAY FIND THE DEFENDANT, I'M TALKING ABOUT THEM INDIVIDUALLY, GUILTY OF SECOND DEGREE MURDER, THAT IS, THE FELONY 1 MURDER, IF YOU'RE SATISFIED THAT THE FOLLOWING 1 THREE ELEMENTS HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT. I REMIND YOU AGAIN, YOU'RE ] NOT TRYING THIS COLLECTIVELY, YOU'RE TRYING THIS INDIVIDUALLY. SO THE EVIDENCE MUST BE WEIGHED AGAINST EACH SEPARATELY. FIRST, THAT THE DEFENDANT OR A CO-CONSPIRATOR OR AN ACCOMPLICE KILLED HULON HOWARD, SECOND, THAT THE DEFENDANT DID SO WHILE COMMITTING A FELONY OR ATTEMPTING TO COMMIT A FELONY OR FLEEING

23 AFTER HAVING COMMITTED A FELONY. COMMONWEALTH IS ALLEGING THAT THE FELONY IN THE CASE WAS A CERTAIN ROBBERY. THIRD, THAT THE DEFENDANT WAS ACTING WITH MALICE. NOW, HERE WE GO. YOU CAN INFER THAT THE DEFENDANT WAS ACTING WITH MALICE IF YOU'RE SATISFIED BEYOND A REASONABLE DOUBT THAT THEY COMMITTED OR ATTEMPTED TO COMMIT THE ROBBERY. BECAUSE ROBBERY IS A CRIME INHERENTLY DANGEROUS TO HUMAN LIFE, THERE DOES NOT HAVE TO BE ANY 1 OTHER PROOF OF MALICE. NATURALLY, I HAVE DEFINED FOR YOU, AND YOU MIGHT RECALL MY DEFINITION OF A ROBBERY. WHEN TWO PEOPLE OR MORE ARE PARTNERS IN A SUCCESSFUL OR UNSUCCESSFUL ATTEMPT TO COMMIT A ROBBERY AND ONE OF THEM KILLS A THIRD PERSON, BOTH PARTNERS MAY BE GUILTY OF FELONY MURDER. NEITHER PARTNER HAS TO INTEND TO KILL OR ANTICIPATE THAT ANYONE WILL BE KILLED. THE PERSON KILLED CAN BE SOMEONE OTHER THAN THE VICTIM OF THE FELONY. HE NEED NOT DIE IMMEDIATELY. HE MAY DIE MUCH LATER AND AT A DIFFERENT PLACE. YOU MAY FIND THE DEFENDANT GUILTY, AND I

24 MEAN EACH AS AN INDIVIDUAL, OF SECOND DEGREE MURDER, THAT'S FELONY MURDER, IF YOU'RE SATISFIED THAT THE FOLLOWING FOUR ELEMENTS HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT. FOUR ELEMENTS. WE'LL GO THROUGH ALL OF THEM. ONE IS THAT ONE OF THE DEFENDANTS CAUSED THE DEATH OF HULON HOWARD. SECOND, THAT THIS DEFENDANT DID SO WHILE HE AND THE OTHER DEFENDANTS WERE PARTNERS IN THE COMMISSION OF A CERTAIN ROBBERY. THIRD, THAT ONE OF THEM DID THE ACT 1 THAT KILLED OR CAUSE THE DEATH IN FURTHERANCE 1 OF THE ROBBERY. FOURTH, THAT THE DEFENDANT WAS 1 1 ACTING WITH MALICE. AND AS YOU KNOW, YOU CAN INFER THE DEFENDANT WAS ACTING WITH MALICE IF YOU'RE SATISFIED BEYOND A REASONABLE DOUBT THAT HIS RELATIONSHIP WITH OTHERS WAS THAT OF PARTNERS IN A ROBBERY. BECAUSE ROBBERY IS A 1 CRIME INHERENTLY DANGEROUS TO HUMAN LIFE, THERE DOES NOT HAVE TO BE ANY OTHER PROOF OF MALICE. I INSTRUCT YOU THAT THEY WERE BOTH PRINCIPLES OR ONE OF THEM WAS A PRINCIPLE AND THE OTHERS WERE ACCOMPLICES. A PERSON IS A, QUOTE, PRINCIPLE, IF HE ACTUALLY COMMITS THE CRIME OR MAKES THE ATTEMPT HIMSELF, A PERSON

25 1 IS AN ACCOMPLICE IF HE AIDS OR ENCOURAGES THE PRINCIPLE TO COMMIT OR TO ATTEMPT THE CRIME AND HE DOES SO INTENDING TO GET THE PRINCIPLE TO COMMIT THE CRIME OR INTENDING TO MAKE IT EASIER FOR THE PRINCIPLE TO COMMIT IT. I INSTRUCT YOU THAT THEY WERE PARTNERS IF THEY CONSPIRED TO COMMIT THE ROBBERY. TWO PEOPLE, QUOTE, CONSPIRE TO COMMIT A CRIME IF THEY SHARE THE INTENT THAT THE CRIME IS TO BE COMMITTED AND THEY AGREE THAT ONE OR BOTH OF THEM WOULD COMMIT IT OR ONE OF THEM 1 WOULD HELP THE OTHER TO COMMIT IT. THEIR AGREEMENT MAY BE EXPRESSED AND VERBAL. THEY 1 1 MAY ACTUALLY TALK ABOUT IT, OR THERE MAY BE AN UNSPOKEN, TACIT AGREEMENT THAT CAN BE INFERRED FROM THEIR WORDS AND CONDUCT AND THE SURROUNDING CIRCUMSTANCES, IF EACH KNOWS WHAT 1 THE OTHER IS THINKING, THEY DO NOT HAVE TO TALK ABOUT IT, WE TALKED ABOUT IN THE FURTHERANCE OF THE CRIME, THAT ELEMENT. A PARTNER'S ACT THAT KILLS IS NOT IN FURTHERANCE OF THE FELONY IF THE PARTNER DOES THE ACT FOR HIS OWN PERSONAL REASONS WHICH ARE INDEPENDENT OF THE FELONY. A

26 PARTNER'S ACT THAT KILLS IS IN FURTHERANCE OF THE FELONY IF HE DOES THE ACT WHILE FLEEING THE SCENE AND IF THERE IS NO BREAK IN THE CHAIN OF EVENTS BETWEEN THE FELONY AND THE ACT. HOWEVER, EVEN THOUGH A PARTNER'S ACT THAT KILLS MAY SEEM TO MEET THAT REQUIREMENT, IT IS NOT IN THE FURTHERANCE OF THE CRIME IF THE PARTNER DOES THE ACT FOR HIS OWN PERSONAL REASONS WHICH ARE INDEPENDENT OF THE FELONY AND THE EFFORTS TO FLEE. IT IS YOUR RECOLLECTION, NATURALLY, OF THE EVIDENCE AS IT HAS BEEN PRESENTED IN THE CASE CONCERNING THE INVOLVEMENT IN THE KILLING BY THE DEFENDANTS IN THE CASE. THIRD DEGREE MURDER IS A KILLING WITH MALICE THAT'S NOT FIRST OR SECOND DEGREE MURDER. YOU MAY FIND THE DEFENDANT, THAT'S 1 ONE, TWO, OR THREE OF THEM, GUILTY OF THIRD DEGREE MURDER IF YOU'RE SATISFIED THAT THE FOLLOWING THREE ELEMENTS HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT. ONE IS THAT HULON HOWARD IS DEAD, SECOND IS THAT THE DEFENDANT ACTING AS AN INDIVIDUAL OR A CO-CONSPIRATOR OR AN ACCOMPLICE KILLED HIM, THIRD, THAT THE

27 DEFENDANT, ACTING AS AN INDIVIDUAL OR CO-CONSPIRATOR OR ACCOMPLICE, DID SO WITH MALICE. YOU MIGHT RECALL THE WORD MALICE AS I'M USING IT HAS A SPECIAL LEGAL MEANING. DOES NOT MEAN SIMPLE HATRED, SPITE, OR ILL IT WILL. MALICE IS A SHORTHAND WAY OF REFERRING TO THE THREE DIFFERENT MENTAL STATES THAT THE LAW REQUIRES AS BEING BAD ENOUGH TO MAKE A KILLING MURDER. THUS, A KILLING IS WITH MALICE IF THE KILLER ACTED WITH, FIRST, AN INTENT TO KILL, OR SECOND, AN INTENT TO INFLICT SERIOUS BODILY HARM, OR THIRD, A WICKEDNESS OF DISPOSITION, HARDNESS OF HEART, CRUELTY, RECKLESSNESS OF CONSEQUENCE, AND A MIND REGARDLESS OF SOCIAL DUTY INDICATING AN UNJUSTIFIED DISREGARD FOR THE PROBABILITY OF DEATH OR GREAT BODILY HARM AND AN EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE, A CONSCIOUS DISREGARD OF AN UNJUSTIFIED AND EXTREMELY HIGH RISK THAT HIS ACTIONS MAY CAUSE DEATH OR SERIOUS BODILY HARM. YOU MIGHT RECALL I WENT ON TO SAY A KILLING IS WITHOUT MALICE IF THE KILLER ACTS

28 WITH LAWFUL JUSTIFICATION OR EXCUSE OR UNDER CIRCUMSTANCES THAT REDUCE THE KILLING TO VOLUNTARY MANSLAUGHTER, WHICH IS NOT APPLICABLE IN THIS CASE. NOW, WHEN DECIDING WHETHER THE DEFENDANT ACTED WITH MALICE, YOU SHOULD CONSIDER ALL THE EVIDENCE REGARDING WORDS, CONDUCT, AND ATTENDING CIRCUMSTANCES THAT MAY SHOW HIS STATE OF MIND. IF YOU BELIEVE THAT THE DEFENDANT 1 1 INTENTIONALLY USED A DEADLY WEAPON ON A VITAL PART OF HULON HOWARD'S BODY, YOU MAY REGARD THAT AS AN ITEM OF CIRCUMSTANTIAL EVIDENCE FROM WHICH YOU MAY, IF YOU CHOOSE, INFER THAT THE 1 DEFENDANT ACTED WITH MALICE, GOT IT? 1 1 THE JURY: FOR ANYTHING? MR. PADOVA: MR, MOORE: (NODDING HEADS.) EITHER OF YOU NEED TO SEE ME (SHAKING HEAD,) (SHAKING HEAD.) LET THE RECORD - MR. TINARI: NO, YOUR HONOR, LET THE RECORD REFLECT THAT THEY ALL MOVED THEIR HEADS IN THE NEGATIVE.

29 YOU MAY RESUME YOUR DELIBERATIONS. : P.M.) (THE JURY RESUMED DELIBERATIONS AT MS. SMITH, YOU WANT TO ADD 1 1 THIS TO YOUR COLLECTION. THE COURT REPORTER: YOUR HONOR. (RECESS TAKEN.) THANK YOU, GENTLEMEN, I'M GOING TO DISMISS THIS JURY UNTIL MONDAY MORNING AND INSTRUCT THEM TO BE HERE NOT LATER THAN :0 ON MONDAY MORNING, AND WE'LL INSTRUCT THEM THAT THEY SHOULD IMMEDIATELY BEGIN TO DELIBERATE ONCE ALL 1 ARE ASSEMBLED. YOU WILL HAVE MINUTES FROM :0 TO BE AWAY FROM HERE. SO THOSE OF YOU WHO ARE ON TRIAL, NATURALLY, WE SHOULD KNOW WHERE YOU ARE SO WE CAN CALL IF WE NEED YOU. THOSE OF YOU WHO ARE IN THE OFFICE, MR. FULLER SHOULD KNOW HOW TO REACH YOU. IT WILL NOT BE NECESSARY FOR YOU TO COME DIRECTLY

30 0 HERE, MR, PADOVA: JUST IN TERMS OF SCHEDULING, JUDGE, SHOULD THERE BE NECESSITY FOR A FURTHER HEARING, THEY COME BACK ON MONDAY, COURT HAVE THE HEARING ON TUESDAY? WOULD THE MR. PADOVA: YES. OKAY. :0 P.M.) (THE JURY ENTERED THE COURTROOM AT 1 1 LADIES AND GENTLEMEN, IT'S :0 ON A FRIDAY AFTERNOON. I'M GOING TO DISMISS YOU FOR THE WEEKEND. I CAUTION YOU, 1 1 PLEASE DO NOT DISCUSS THIS CASE WITH ANYONE. DO NOT ASK FOR ANY ASSISTANCE FROM YOUR SPOUSES OR SIGNIFICANT OTHERS OR CLERGY OR ANYONE ELSE 1 IN THE COMMUNITY. DO NOT MENTION THE FACT THAT YOU ARE INVOLVED IN DELIBERATIONS, AND YOU SHOULD NOT DISCUSS IT EVEN AMONG YOURSELVES UNTIL ALL 1 OF YOU ARRIVE BACK HERE ON MONDAY MORNING, PLEASE BE HERE NOT LATER THAN :0 AND BEGIN TO DELIBERATE IMMEDIATELY UPON ARRIVAL OF THE 1TH PERSON, ENJOY THE WEEKEND,

31 l 1 AND I'LL SEE YOU ON MONDAY, THE TIPSTAFF: WATCH YOUR STEP, PLEASE. :1 P.M.) (THE JURY RETIRED FOR THE WEEKEND AT THE TIPSTAFF: THIS COURT NOW STANDS ADJOURNED UNTIL :0 ON MONDAY MORNING. (COURT ADJOURNED)

32 ' ' 1 CERTIFICATE I HEREBY CERTIFY THAT THE PROCEEDINGS AND TESTIMONY TAKEN BY AND BEFORE ME ARE CONTAINED FULLY AND ACCURATELY IN THE NOTES OF TESTIMONY, AND THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE SAME. 1 1 ~ONNIE SMITH COURT REPORTER 1 1