March 25, 1994
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
ROBERT T. HUGHES, APPELLANT
Appeal from the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, entered July 31, 1990 at No. 2247-89.
The opinion of the court was delivered by: Cappy
OPINION OF THE COURT
This is an automatic direct appeal from two sentences of death imposed upon appellant by the Court of Common Pleas of Chester County following his conviction of two counts of first degree murder and one count each of robbery, possession of instruments of crime, and violation of the Uniform Firearms Act. The charges arose as a result of the shooting deaths of two employees of a McDonald’s restaurant located in Chester County, Pennsylvania, on the morning of January 8, 1989. For the reasons that follow, we affirm the convictions and the judgment of sentence.
Shortly after the murders occurred, appellant was arrested in Delaware which is but a short distance from the scene of the murders. Following his arrest, appellant was extradited to Pennsylvania and incarcerated at Chester County Prison. On petition of defense counsel, a hearing was held on February 10, 1989, to determine appellant’s competency to stand trial. Following the hearing, the court entered an order committing appellant to Norristown State Hospital for evaluation and testing and staying the proceedings pending completion of said evaluation. Ultimately, appellant was found by the court to be competent to stand trial.
On September 28, 1989, a hearing was held on appellant’s motion to suppress certain physical evidence and statements following which the court denied the motion in its entirety. After three days of jury selection, appellant elected to forego a jury trial and instead, entered a nolo contendere plea of “guilty but mentally ill.” The court then gave a lengthy colloquy, informing appellant of all of those rights which he would be relinquishing as well as the elements of the offenses with which he was charged. The court then accepted the plea as tendered.
However, later that same day, both counsel and the court agreed that the proper procedural posture in which appellant could present a defense of “guilty but mentally ill” was a non-jury trial and not a nolo contendere plea. The court again informed appellant of his right to a jury trial whereupon appellant signed the waiver form. The case then proceeded as a bench trial with stipulated facts.
Following the bench trial, appellant was found guilty of the above listed crimes. A separate penalty hearing was held after which the court found, as to each murder, two aggravating circumstances which it determined outweighed the four mitigating circumstances. Thereafter, the trial court heard and denied appellant’s post-trial motions. On July 31, 1990, a formal sentencing hearing was held following which the court imposed two consecutive death sentences as well as a sentence of ten (10) to twenty (20) years on the robbery conviction. This automatic direct appeal followed.
As in all cases in which the death penalty has been imposed, this Court is required to conduct an independent review of the sufficiency of the evidence even where, as here, the defendant has not specifically challenged the conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937(1982), cert. denied, 461 U.S. 970, 77 L. Ed. 2d 1327, 103 S. Ct. 2444(1983), reh’g denied, 463 U.S. 1236, 77 L. Ed. 2d 1452, 104 S. Ct. 31(1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217(1986). As stipulated, the evidence establishes the following:
On January 8, 1989, two employees of the McDonald’s restaurant located in the Parkway Shopping Center in West Goshen Township, Chester County, Pennsylvania, were found murdered, each by a single gunshot wound to the head. On that date, at approximately 5:15 a.m., James Jenkins was delivering newspapers at the shopping center when he noticed a blue and white automobile in the parking lot of the McDonald’s restaurant. Upon being shown a photograph of appellant’s car, Mr. Jenkins was of the opinion that the car depicted in the photograph was identical to the one he saw in the parking lot on the day of the murders.
At approximately 5:30 a.m. that same morning, an employee of the McDonald’s, Brian Burnette, arrived for work. As he was about to enter the building, he noticed a man standing inside the restaurant waving a gun in the direction of the manager, Jean Reider, who was carrying cash drawers from the safe and placing them on the counter.
Another employee, Brian Titus, also arrived at approximately 5:30 a.m. As he entered a door to the restaurant, he noticed a person lying on the floor in front of a desk that was located next to the safe who was signaling for Titus to leave the restaurant. Titus also observed a person, approximately six feet tall, standing inside the restaurant with arms extended as though holding something in his hand. Both Titus and Burnette then went to a nearby store to call the police.
When the police arrived at the scene, they discovered the bodies of Charles Hegarty and Jean Reider. The body of Charles Hegarty was found in the exact location where Brian Titus had seen someone lying earlier. Jean Reider’s body was found in the corner of a room. The blood stains on the wall indicated that she had been shot while sitting with her legs crossed and curled up. The safe was open and the cash drawers had been taken out and left on the floor. No money was left in the cash drawers except for some rolls of coins. Six crumpled one dollar bills were found next to a dumpster outside the McDonald’s.
At approximately 6:30 a.m. that same morning, Steven Quigley, proprietor of a local towing business, received a telephone call from a man who asked to be picked up at the Abbey Green Motel which is located approximately six tenths of a mile south of the McDonald’s restaurant. The man requested that Quigley tow the man’s blue Plymouth to Jack Wolf’s Sunoco so that it could be repaired. When Quigley asked the man why he did not use Wolf’s tow trucks, the man responded that all of Jack Wolf’s tow trucks were out and unavailable. However, when Quigley drove past Wolf’s Sunoco he observed that all of Wolf’s tow trucks were in, not out as the caller had indicated.
When Quigley arrived at the Abbey Green Motel at approximately 6:50 a.m., appellant appeared from between the buildings. As he walked to Quigley’s truck, appellant was holding his side with his arm as though he was either hiding something or hurt. When Quigley asked appellant where his car was parked, appellant responded that the Birmingham Township police had towed it. Quigley suspected that was not true as he, himself, performed all towing work for the Birmingham Township police. Moreover, Quigley knew that the Abbey Green Motel was not located in Birmingham Township. Nevertheless, Quigley agreed to drive appellant to the Tally Ho Motel in New Castle County, Delaware. Upon their arrival there, appellant paid Quigley the sum of $25.00 in crumpled five dollar bills. Quigley last saw appellant speaking with the desk clerk at the Tally Ho.
After requesting the desk clerk to call a cab for him, appellant then went to an adjacent Wawa Market to purchase a soda. Appellant left the Wawa Market after purchasing the soda, but returned shortly thereafter requesting a paper bag. Appellant then took a cab to the Clemente bus station located in Wilmington, Delaware.
At approximately 8:30 a.m. that same morning, Officers Cottingham and Boyd of the Wilmington Police Department, while on routine patrol, received a radio broadcast dispatching them to the area of the Clemente Bus station to look for a possible fugitive from Pennsylvania who was wanted for an outstanding warrant. The officers arrived at the bus station and after noticing no one in the waiting room area of the station matching the description broadcast over the radio, one of the officers entered the men’s restroom. Once in the restroom, the officer noticed someone matching the description. The officer then exited the restroom and informed his partner that he believed the suspect was in the restroom. They then radioed for backup assistance. As appellant exited the restroom, Officer Boyd asked him his name and after appellant responded in a hostile manner, Officer Boyd explained to appellant that they were looking for a fugitive from Pennsylvania. Appellant remained hostile, refusing to comply with any of the officers’ requests. A struggle ensued during which a .38 revolver fell from appellant’s pocket. As all three struggled to retrieve the gun, Officer Boyd struck appellant with his blackjack. Appellant was eventually transported to a hospital as a result of injuries he incurred during the struggle. Upon his arrest, appellant had in his possession a Wawa bag and a Colt 6 shot revolver.
Upon examination of the Colt revolver, Officer Cannon of the Wilmington Police Department observed two spent cartridges as well as four live rounds of .38 caliber ammunition. The Wawa bag seized from appellant contained a blue American Bank bag in which was found various papers subsequently determined to have been taken from the McDonald’s restaurant, as well as a sum of money. The Wawa bag contained a second bank bag inside of which was found another sum of money. Six live .38 caliber special ammunition were seized from the right pocket of the jacket appellant was wearing.
While at the hospital, appellant, after having been read his Miranda rights, was advised that he was a suspect in a double homicide and robbery which had occurred at the McDonald’s restaurant to which he responded, “If I knew I was being arrested, it would have been your life.” Appellant also stated that the revolver had been purchased by him at a gun shop in Malvern, Pennsylvania. He claimed, however, that the bullets had been spent at a park. He then told the police that his name was “Tony” and that the money in his possession belonged to him, part of which he claimed to have received from a man by the name of John Rodriguez. Appellant described John Rodriguez as a twenty-five year old Puerto Rican male and claimed that he had previously telephoned Rodriguez to arrange a meeting that morning at the Wawa near the Tally Ho Motel so that Rodriguez could pay appellant the money, in partial satisfaction of a debt. Contrary to appellant’s assertions, however, the records obtained for appellant’s home telephone did not reflect any calls to Rodriguez. Moreover, the clerk who attended to appellant that morning at the Wawa Market did not see any Puerto Rican male in the presence of appellant.
A blue and white Plymouth Vol are was found parked on Cheyney Drive which is located directly south of the Abbey Green Motel. A search warrant was issued for the car and a box of .38 caliber ammunition was recovered from the car. Also found within the car was a sales receipt for the vehicle in the name of Terrence Russo of 99 Concord Meeting Road, Glen Mills, Pennsylvania, that being the same address that appeared when the police ran a driver’s license check under the name of Robert T. Hughes.
It was also determined that the gun which was seized upon appellant’s arrest had been purchased by him just two days prior to the double murder. The record reveals that appellant had originally ordered a Charter Arms .38 caliber short barrel gun from the Malvern Gun Shop, but after having phoned the store several times inquiring about why it was taking so long for his order, appellant appeared at the gun shop on January 3, 1989, decided that he wanted a Colt gun instead and ordered the same. He took delivery of the Colt gun on January 6, 1989 and was, at that time, also supplied with human silhouette targets. He did not have a license to carry a gun.
On January 5, 1989, just three days before the murders, appellant was observed at approximately 4:00 a.m. in a parked car outside a McDonald’s restaurant in Delaware County. When appellant was approached by an off duty police officer, he claimed to be having battery problems. On the evening of January 6, 1989, the manager of a McDonald’s restaurant in Exton, Pennsylvania, received a telephone call from a man who identified himself as an employee of a McDonald’s located in California. The caller then “asked about the opening procedures for McDonald’s in Exton.” N.T. 11/3/89, 140-41. That same evening, an identical call and inquiry was made to a McDonald’s in Downingtown, Pennsylvania. Appellant’s telephone records were obtained pursuant to a search warrant which records revealed that both calls were made from appellant’s home.
As noted previously, it was determined that Charles Hegarty died from a contact gun shot wound to the head. The nature of the wound was consistent with the victim’s head having been on a hard floor at the time he was shot. The other employee, Jean Reider, also died of a gun shot wound to the head. The pathologist opined that Reider had been shot from approximately a foot and one-half to two feet away and that she was shot while sitting in a corner with her head turned to the right.
While Federal Bureau of Investigation ballistics experts could not state with certainty that the slugs taken from the victims definitely came from the gun that was seized from appellant, they were able to conclude that the slugs were fired from the same type of gun; same make and model, the number, width, and twists of lands and grooves were the same. Ballistics experts also stated with certainty, that the bullets that were removed from the victims’ heads, the live rounds seized from appellant’s gun, the bullets found in appellant’s jacket pocket and the bullets found in appellant’s car all contained lead from the same homogenous pot.
A former high school classmate of appellant, Darlene Devakow, received a letter from appellant postmarked March 17, 1989, in which appellant confessed to the murders. He claimed that he shot one of the employees because that employee had reached for a gun. He also told her that he could lie to others, but not her and that he had fabricated much of what he told to the psychiatrists and physicians in order to fake insanity. In that letter, appellant told Ms. Devakow that he would call her on March 23, 1989, at 7:05 p.m. Appellant did, indeed, telephone Ms. Devakow on that date and repeated much of what he had written in the letter. He admitted that his motive was robbery and that he knew that he had fooled the psychiatrists and doctors. Because Ms. Devakow would not consent to a recording of the conversation, the Commonwealth obtained prior court approval to intercept that conversation. At trial, the Commonwealth introduced into evidence the transcript prepared from that tape as well as the actual tape.
Clearly, the above facts were sufficient to support appellant’s convictions for two counts of first degree murder and one count each of robbery, possession of instruments of crime and violation of the Uniform Firearms Act. In fact, appellant does not challenge the sufficiency of the evidence of his convictions. Having concluded that the evidence was sufficient to support the convictions, we shall now address appellant’s particular claims of error.
Source: PA Find-a-Case, Tip provided by Cheryl
Robert Hughes is on PAs death row for executing 2 McDonald’s employees at the 927 S High S West Chester, PA McDonald’s. This was in 1988 when he was 20. He is PA Death Row inmate # BC 8234. He was also using the alias Terrance Russo. Hughes waited for the cleaning man and the supervisor opening the store early in the morning. He forced them to open the cash drawers then shot them both in the head. His car failed to start so he called a tow truck. The driver took him to the Wilmington, DE train station and heard the police report on his drive back. Hughes was arrested at the station and sentenced to 2 death sentences by Chester County Judge Gavin. – Submitted in 2008