*1
Argued April 1994. Decided 1994. Oct. *5 Rudenstein, Wesley for John Brown. Philadelphia, David Marshall, Sacks, for Com. Philadelphia, Catherine Alan *6 Graci, Atty. for Harrisburg, Robert A. Gen. FLAHERTY, ZAPPALA, C.J., NIX, and Before CASTILLE, MONTEMURO, PAPADAKOS, CAPPY, and JJ. THE OPINION COURT OF FLAHERTY, Justice. Brown, was of first-de- Wesley convicted
Appellant, John and sentenced to death. gree murder the following the facts which form basis The record reflects 10,1990, and appellant his appellant’s conviction. On June old, father, Brown, seventy-seven years who then Wesley was A quarrel in their in together Philadelphia. home were of his father’s appellant’s occurred over use between the two is, Appel- that unlicensed taxi service. “hacking,” car for an four a .38 and left pistol lant shot his father times with caliber in A who neighbor him to to death their home. heard bleed she in turn called granddaughter; the shots called the victim’s and told Appellant phone answered his grandfather. her placed grandfather Appellant niece that her was outdoors. a took body caliber next to his father’s and .38 revolver $400 wallet, in car. his then drove off his father’s He from father’s it out the car weapon by throwing of the murder disposed Georgia. days in en Two later Maryland window route computer at a check stopped Georgia; was road appellant that the license check of driver’s license disclosed appellant’s stolen, and expired, the car was that in Pennsylvania Appellant for murder. admitted wanted father, but claimed it was done self-defense shooting his him. magnum pistol .357 pointed after father trial, jury guilty found him Following possessing an instru- degree, robbery, murder of the first trial, Following penalty phase ment of crime. existed, to-wit, found an circumstance jury aggravating voluntary of a man- prior had been convicted that appellant circum- mitigating found three jury also slaughter; significant history had no stances, namely, convictions, extreme mental that he acted under criminal prior disturbance, other evidence and that he had some emotional or factors, statutory bаlancing mitigation.2 outweighed circumstance aggravating concluded that circumstances, reached a verdict unanimously mitigating 9711(h)(1) § to 42 Pa.C.S. appeal pursuant This of death. followed. is that the evidence was
Appellant’s first degree. the verdict of murder of the first insufficient to sustain case. Common every capital This is an issue we review Zettlemoyer, n. wealth 26 n. *7 denied, (1982), 970, 103 2444, cert. 461 U.S. 77 L.Ed.2d 3 S.Ct. (1983). whether, standard of review is applicable in the most favorable to the viewing light all the evidence winner, together with all reasonable Commonwealth as verdict Commonwealth, the could find inferences favorable to doubt. Com every beyond element of the crime reasonable Kichline, 265, 271, 282, monwealth 468 Pa. 361 A.2d 285-86 (1976). that he commit presents a defendant evidence When self-defense, must disprove ted a the Commonwealth killing Commonwealth v. a reasonable beyond such a defense doubt. Samuel, 303, 1245, (1991); Com 298, 527 Pa. 590 A.2d (1982). 621, 624, 90, Upsher, monwealth v. standards, to In these the evidence was sufficient keeping with sustain the verdict. argued with his father over
Appellant frequently eve of hacking use of latter’s car in the business. On the murder, more, report they quarreled once and the victim According his car had been stolen. police ed to the it was because he was afraid to stand granddaughter, victim’s him the use of the car. up to his son and refuse 9711(d)(12). § 1. 42 Pa.C.S. 9711(e)(1), (2), §§ Respectively, 42 Pa.C.S. and
2. 1990, Monday, In the hours June early post-midnight and him four his father’s bedroom shot appellant went to Medical estab- .38 caliber revolver. evidence times with a victim, in the two that three of four bullets struck lished arm, travelling and in the all of them downwards chest one injured victim’s body. The bullets through the victim’s aorta, tissues, causing the victim to bleed and lung, bones There was a loaded .38 in ten or fifteen minutes. death body near head lying the victim’s when caliber revolver gun did There evidence discovered. victim, and, took it belong implication, weapons and there after placed from his collection shooting. voluntary statements to authorities written
Appellant gave days nine when he after his arrest and later Georgia shortly extradition, in waiving after addition Pennsylvania returned statement, In the first dated June testimony. to his trial bedroom, his that when he entered the appellant claimed him, aimed at that he magnum had pistol father a .357 his own .38 caliber revolver angry, became fired panicked, that he could have retreated at the wall. He also admitted nearby angry. door if he had not been safely through on given statement June pretrial second him magnum pointed his father had a .357 he claimed that said, your Reacting out.” out “I’m to blow brains going room, out of the pulled started fall anger, trial, appellant At testified aiming. and fired without revolver *8 during his to his an he followed father bedroom angrily bedroom, his had a .38 he entered the father argument. As “Instantaneously,” acting impulse, “out of him. pointed reaction,” floor,” around,” “rolled “spun “dropped he aim,” his and pulled weapon out of his own trying get ... he “ran looking. from floor without even Then up fired fired, I “After I sort of He later explained, out of room.” I I out. out.” He just оut. like crawled ran like stumbled scared; shaking; he was angry; testified that he was he was shock; crying. he was he was bedroom, the victim’s later, after returned to the he Minutes called, telling her phone, he answered the granddaughter and fact, victim was was outdoors. grandfather that her taking to death while bleeding the floor lying on car, threw Then he took father’s from his wallet. $400 Mary- driving through while out the window weapon murder land, Georgia. apprehended and was cross-examination, as follows: appellant testified On sir, your shot Now, police you call the after you didn’t Q. father? No, I didn’t.
A. Ein- the Albert right the corner from You live around Q. Medical Center? stein
A. Yes. father? anything help your call 911 or You didn’t
Q. I I panicked. froze and A. No. froze, knew where you say you panicked you
Q. When you going, you. were didn’t I going. I know where I was was scared.
A. going? you You knew where were
Q. Yes.
A. right? you going, where thought [sic] You about wre Q. I about it. thought A. your from father thought taking money You about
Q. then, able to think correct? you were A. Yes. cross-examination, how, if appel- to explain asked
On further floor, downwards from the the bullets travelled up lant fired testified, victim’s as the medical examiner through body, appellant explained: Well, you can tell—
Q. said, he he there. He actually That’s what but wasn’t A. wouldn’t know. doctor, right? He is a medical
Q.
420 know, know, he is not happen, you things You
A. Yes. know, I that, I was there. didn’t you like anything or God I was I didn’t see where hit the floor. my see father shooting at. examination, squarely the blame appellant placed redirect
On on pulled gun just never have his father: “He should on There simple argument. had a place. me in the first We this pulled gun, If he hadn’t happen. for that to no reason I anger. I reacted out of just happened. wouldn’t have anger.” out of reacted is, in of the evidence sufficiency on the
Appellant’s attack if of events were essence, claim that his version spurious a of the credence, in self-defense. view he killed given in view testimony, and expert evidence conflicting physical accounts, it is understanda- of inconsistency appellant’s testimony. There appellant’s nоt credit jurors that the did ble every element prove evidence to more than sufficient beyond claim the self-defense disprove and to the offense reasonable doubt. he is entitled to is that second
Appellant’s
of trial counsel.
of ineffectiveness
new trial as the result
assistance
in a claim of ineffective
inquiry
threshold
to the claim
arguable
there is
merit
counsel is whether
Com
or deficient.
was substandard
performance
counsel’s
(1989).
Durst,
2,
522 Pa.
A.2d 504
Counsel
monwealth v.
559
failing
to raise a meritless
found ineffective
can never be
Williams,
A.2d
v.
Pa.
615
claim. Commonwealth
532
merit,
(1992).
then the
claim has
716,
arguable
If the
had
course chosen
counsel
to whether
inquiry shifts
his client’s inter
to effectuate
designed
reasonable basis
some
(1992).
Weiss,
530 Pa.
606 A.2d
ests. found,
must show
then the client
basis is
If no such reasonable
him. Common
prejudiced
or inaction
that counsel’s action
(1987). Moreover,
Pierce,
wealth v.
515 Pa.
counsel’s ineffective
establishing
client has the burden
effective. Common
presumptively
counsel
ness becаuse
McNeil,
These
Appellant to the same object hearsay testimony to failing witness, did not appellant who testified that the victim want statement, how use for The out-of-court hacking. his vehicle ever, it only offered for but for the fact that was not its truth made, was hearsay. was and thus not inadmissible See Com 271, 274 Wright, monwealth v. 317 A.2d (1974). Moreover, it of an over the was evidence car, motive for appellant’s which was admissible as evidence Covil, father. Pa. murdering his Thus, to the admis objecting have been sion of the victim’s out-of-court statement would futile. counsel ineffective
Appellant claims that trial was witness eliciting damaging testimony from Commonwealth He he had Lynette Hudgins. testimony asserts that her up been a father to she was growing like her while credibility defense to the because bolstered the damaging assertion, prosecution witness. this counsel had Despite establishing appel an reasonable obvious basis for evidence character, such a lant’s summation that good arguing in self- except his own father not have shot would person defense. ineffective that counsel was claims likewise
Appellant
of witness Charlena
hearsay testimony
object
failing
for
that, years
testified
This -witness
sister.
Hudgins, appellant’s
house because
had left his
earlier,
told her he
the victim
house;
that the
asserts
up
had torn
extremely prejudicial
hearsay testimony was
of this
admission
would,
It
violence.
propensity
it reflected
because
object
however,
for defense counsel
been futile
have
It
admit
hearsay.
not inadmissible
testimony, for it was
position
the Commonwealth’s
support
ted to
gun
had
planted
and that he
claim was a sham
self-defense
*11
Hudgins
him. Charlena
body
killing
after
near his father’s
body was not
near the
gun
that the
discovered
testifying
his gun
she had seen
she knew because
gun,
the victim’s
which
told
incident because he
earlier;
she remembered
years
his son had torn
because
gun
he’d left his home with
her
his
about
out-of-court statement
their house. The victim’s
up
the truth of the
not admitted for
was thus
son’s violence
witness,
her
causing
of its effect on
statement but because
gun
the victim
clearly, including
to remember the incident
As the out-of-court
housе on that occasion.
to her
brought
truth,
as
its
it was admissible
was not admitted for
statement
v.
hearsay. Commonwealth
against
to the rule
exception
an
be
Counsel cannot
Appellant his hearsay statement witness yet another respect with testified, same She reference Hudgins. Charlena had appellant preceding paragraphs, as in occurrence argument, how his next time. This to kill father threatened in the The witness ever, record. support without totally victim, statement of the as repeating an out-of-court was not threat to kill asserts, repeating appellant’s but was not father, and it was therefore presence, made her as an hearsay. The was also admissible inadmissible threat Hoss, 445 Pa. against appellant. admission 98, 112, 283 A.2d ineffective for ne- that trial counsel was
Appellant claims Charlena to still another statement glecting object guns did testified the victim’s He claims she Hudgins. He that her statement was not real to her. asserts appear his self-defense claim. in that it undermined prejudicial however, misreads the record. witness Again, victim’s, did rather than the appellant’s guns, testified that prejudiced could not have аppear possibly to be real. This he shot his father with a appellant. He himself testified that merely impression created an gun; real the witness *12 dangerous they actually were appellant’s guns were less than be weapons his seemed to a harmless and that collection of hobby. trial ineffec
Appellant argues also that counsel was stating object to Patrick Peters that failing tive for to witness murder, gunfire thought on he heard day appellant had between something happened that objected have victim. claims that counsel should Appellant As the by of this conclusion the witness. the admission out, however, had reasonable counsel a points statement, in object the statement. The basis not n context, helpful was either neutral or to the defense. The testified that he had seen the victim earlier in the witness had car His innocuous that day gun. speculation with father, something happened appellant had between and his therefore, defense that he indirectly suppоrted appellant’s Moreover, shot his father self-defense. the statement was telephone made in of his call to the victim’s explanation explain such offered to a course of daughter; testimony, DeHart, conduct, is admissible. Commonwealth v. denied, (1986), cert. 483 U.S.
107 S.Ct
Appellant argues appel cross-examination of ing object allegedly improper to to had tears in his why asked he prosecutor appellant lant. The the crimes. testifying committing when but not while eyes only cross-examination, Appellant had proper This was however. death; his to his father’s he had injected the issue of reaction and shooting how he had cried after his father described cry again to when he learned up began became choked ask died. The was entitled to prosecutor that his father had father, he shot his eyes him whether he had tears when he neighbor shooting, he talked to a after the when when lay while his father on the spoke telephone to his niece on attempt expose It was to bleeding proper floor to death. sincerity permit sham in order to evaluate part It not ineffective on the testimony. was cross-examination object permissible trial counsel not to himself. testimony appellant invited allegation next of ineffectiveness is Appellant’s objected allegedly improper question have counsel should rebuttal. He during of Detective Harris ing statement that Carter never told claims that the detectivе’s him in maintenance with her was with worked her whether she out foundation as he never asked proper him. This is meritless. The detective worked with inconsistencies between Carter’s trial testifying was about given police and the statement she had testimony written statement that during investigation. pretrial Her written clearly contradicted money hacking all did for him a week on a nights the fact that she worked with five no the inconsis- requirement There is job. maintenance or that the question to a tency response particular arise in the trial testimo- way same as inconsistency phrased be im- A is admissible for prior statement ny it contradicts. long testimony. as is inconsistent with peachment so 106, 112 Silverberg, 459 Pa. In re was ineffective final claim that trial counsel Appellant’s Harris’s statement object his failure to to Detective relates to read when she “very thorough that Harriet Carter was statement,” an un- appellant argues which through the argument. no merit to this There is founded conclusion. gave opportunity her an police herself testified that the Carter *15 statement and that she made whatever through to read her confirmed necessary. were detective corrections she felt that testimony her and added his observation that of aspect an observation was thoroughly. she the statement Such read doubt, for the jury. If is the is permissible. question there all of claims of ineffective appellant’s conclude that We In each instance of by defense counsel lack merit. assistance ineffectiveness, act reason- only not did trial counsel alleged any prejudice that appellant utterly fails to establish ably, but representation. from trial counsel’s might have resulted the argument allegations next a set of that Appellant’s is in the during penalty misconduct prosecutor engaged gross failing trial counsel ineffective phase of trial and that penalty alleg- a object, requiring hearing. Appellant thus new misconduct, none of prosecutorial instances of specific es six any has mеrit. which prior of aggravating the circumstance proving voluntary manslaughter, Pa.C.S.
conviction 9711(d)(12), § introduced evidence that man charge voluntary to a pleaded guilty had testimony by It slaughter offering 1967. did so Gross, conviction. prior testified about Detective who the detec prosecutor asked asserts that when Appellant case, she in the homicide “charge” prior tive to state the in misconduct as engaged inasmuch a is not charge evidence of a conviction.
This is frivolous. The detective testified that the charge voluntary manslaughter and that plead- guilty ed A a charge. charge guilty followed plea conviction, constitutes a conviction of voluntary man- slaughter aggravating satisfies the of 42 circumstance Pa.C.S. 9711(d)(12). § allegation second
Appellant’s
prosecutorial miscon
duct
penalty hearing
during
that
the Commonwealth
Meeley
called Detective James
as a witness and introduced a
“long-winded” recitation
prior
of the facts
man
case,
slaughter
including
reading
of appellant’s confession
argues
therein.
Appellant
although
proper
it is
to intro
duce the
necessary
“essential and
facts”
prior
convic
tion,
Beasley,
Commonwealth v.
Appellant quoted misconstrues as a language holding the Commonwealth may any introduce underlying facts prior associated with a homicide in proving conviction *16 9711(d)(12). § aggravating circumstance set forth in 42 Pa.C.S. instance, In this reading of the was “long- confession not occupies winded.” It six of pages in a transcription lengthy trial, with thousands of of pages The testimony. jury is entitled to know the “essential” facts of prior conviction circumstance, an constituting aggravating may and need to know certain of the “underlying” facts as well. jury’s of weighing and aggravаting mitigating subjective is a
circumstances process. The mere existence of one or aggravating more circumstances together with one or more mitigating does circumstances not determine the sen imposed. tence to be We balancing have held that aggrava- a quantitative is not against mitigating circumstances ting circum is, mitigating if than aggravating more process —that found, required impose to death jury is not stances are cir sentence; likewise, than mitigating aggravating if more found, necessarily not precluded jury are cumstances Peoples, Commonwealth v. imposing from a death sentence. (1994); 326, 329-333, Common 639 A.2d 450-51 586 Pa. Billa, 187-88, Pa. wealth v. circumstances, mitigating balancing and aggravating circumstance, of each weigh significance the relative
jury must so, existence more than the mere and to do it must know circumstance; facts underlying it idea of needs some in matter. man case, prior of the
In this the circumstances Appellant had contend particularly relevant. slaughter were anger; in a fit of that he killed father during ed case, prior manslaughter in in the similarly, his confession he chased the victim and stabbed explained that had angry. he To enable the him in the back because was meaningfully, and circumstances aggravating mitigating weigh for the Commonwealth necessary permissible prior homicides. As the similarity between two prove the evidence, prosecutorial there no was admissible confession it, part on the and no ineffectiveness presenting misconduct object to its declining admission. trial counsel allegation prosecutorial miscon Appellant’s third adjective objection use of the prosecutor’s is an duct Ap father. describing “brutal” in the murder has license prosecutor that a some oratorical pellant concedes closing argument, Common may passion exhibit some Baker, (1992), 541, 614 argues but wealth A.2d equivalent arguing use word “brutal” was torture, circumstance which was aggravating existence of an charged. record contains this as frivolous. The regard We three shot his father establishing evidence seeking slowly, without left him to bleed to death times and *17 readily available emergency medical treatment. “Brutal” means, alia, grossly cruel, inter unfeeling, ruthless or cold- blooded, harsh, or severe. Webster’s Ninth Collegiate New Dictionary oratory Such is not equivalent to arguing the jury should find the aggravating circumstance of torture. The use of single the word “brutal” relatively was mild language well within the boundaries afforded counsel in closing argument, and, indeed, appears accord with the Marshall, facts of the case. See Commonwealth v. (1989) (permissible to refer killer.”) brutal, defendant as “a systematic, calculating Appellant’s next allegation prosecutorial misconduct dur- ing penalty hearing is the prosecutor’s reference during closing argument to “aggravating circumstances” in the plural only when one aggravating circumstance charged. Appel- presents lant no argument support allegation, this so the issue is waived.4
Appellant’s fifth prosеcutorial assertion of misconduct is prosecutor’s argument that appellant “claims that he has no significant history of a felony conviction.” argu This ment, too, borders on the frivolous. Appellant apparently claims that the prosecutor, law, learned was well aware of the difference between criminal convictions felony convictions. The mitigating issue, circumstance at 42 Pa.C.S. 9711(e)(1), § “significant refers to a history of prior criminal convictions.” In the context of the prosecutor’s closing argu ment, however, the difference between a criminal conviction or a felony conviction was without import, as there was no dispute history of convictions consisted only of prior one manslaughter. question The significance was the or transcript suggest you reads: "Let me aggrava- here that the 4. circumstances, ting serious, very, very weighs heavily....” because it 7/24/91, added). (emphasis N.T. appears It transcrip- that the tion of the aggrava- erroneous and should read: "... serious____” ting event, very, very circumstance is any the isolated plural use of the prejudicial could have had no effect as the only well aggravating aware that one presented circumstance was consideration, its which obvious fact was slip reinforced the verdict containing only single aggravating relevant circumstance set forth 9711(d)(12). § in 42 Pa.C.S.
431 the conviction. We cannot single felony to be accorded weight referring in motive any prosecutorial sinister perceive Moreover, prejudice closing argument. in “felony convictions” finding the jury’s in view of the glaringly is absent 9711(e)(1) indeed § of 42 was circumstance Pa.C.S. mitigating in this case. appellant’s culpability to ameliorate present miscon prosecutorial of Appellant’s allegation final challenge prosecutor’s is to the duct in the a penalty phase to be argument appellant “hopes during closing statement argues for Appellant held unaccoutable his actions----” [sic] of false, a sentence hoped because he to receive that this was This, in for his actions. imprisonment accountability life full too, prosecutor’s of the a frivolous The thrust argument. full ac to avoid argument simply appellant hoped was Accountability accep means countability for behavior. actions; in seeking to avoid consequences of the one’s tance penalty, the the crime the circumstances death which the full arguably attempting was to evade justified, appellant certainly argument on of his crime. It was fair consequences Basemore, prosecutor. the the See part denied, (1990), 861, 502 869 cert. (1992). 432 U.S. 112 S.Ct. 117 L.Ed.2d penalty phase occurred prosecutorial No misconduct that no ineffectiveness on trial. It follows during prejudice resulted in part of counsel hearing. the penalty prosecutorial is that mis
Appellant’s next of appellant the trial the cross-examination during conduct prosecu a trial. The prejudice requires which new resulted defendant, he night tor ‘Was father drunk your аsked the intentional argues that got Appellant murdered?” prejudicial prosecutor grossly misconduct the “murder” of the prosecutor for to refer to a been determined that murder had jury victim before the committed. mistrial,
Following for a defense counsel received request clear that cautionary instruction. The instruction made issue of whether a murder had been committed was the ultimate question decide. Even without the instruction, lengthy jurors court’s careful and must have killing understood that the issue whether the was a murder prosecutor’s question was for them to decide and that the did not foreclose them from that issue. More deciding important, point question, ques obvious as is clear from the afterwards, immediately tions asked was to establish whether the victim drunk at alleged argument, the time of the killing to establish that was a murder. See Common Morgan, wealth v. Pa.Super. A.2d *19 cautionary The trial court’s extensive instruction this made beyond clear all doubt. The trial court did in refusing not err for appellant’s request a mistrial.
Appellant’s next is that argument penalty the death statute, § 42 Pa.C.S. is unconstitutional because does jury not allow for an of in appeal determinations which aggravating outweigh mitigating circumstances are found to circumstances. The essence of appellant’s claim is not that jury the wrongly significance assessed the of the aggravating case, and in mitigating circumstances his but that his appellate rights in unconstitutionally abridged were that this court does jurisdiction not have to consider the of question whether erred in jury “as a matter of law” weighing aggrava and ting mitigating circumstances.
This is incorrect. perform While this court does not weight-of-evidence analysis' jury’s balancing of aggrava circumstances, ting mitigating and it nevertheless reviews the pursuant 9711(h)(3)(i), § sentence to 42 Pa.C.S. which requires factor;” “passion, review for prejudice any arbitrary or other This is tantamount to reviewing jury’s the fairness of the evaluation of the aggravating mitigating and circumstances “as a matter of law.”5 precise analyzed greater rejected
5. This
length
issue was
and
in
(1994)
Thompson,
Commonwealth v.
Appellant’s penultimate
hearing
appellant’s presence
due to
at
penalty
tled to a new
jury
wearing
during
giving
shackles
counsel table
the ar
following
penalty hearing. Although
instructions
unstated,
claims that
appellant presumably
gument
inferred
unfairly
have seen the foot shackles and
jurors might
in need of
person
deemed to be a violent
restraint.
(1992),
In Commonwealth v.
circumstances in which it is
appropriate
we considered the
discretion, to
restraint
permit
in the exercise of
judge,
a trial
case,
this,
in a criminal trial.
as
of a defendant
whether the shackles were visible
dispute
there was a
over
are:
box. The relevant considerations
jury
from the
common law and constitutional-
...
is well-settled under
[I]t
prejudice
as incident to a fair
without
defen-
ly
physical
from shackles or other
re-
appear
dants
free
straints____ [Nevertheless,]
circum-
exceptional
there are
techniques
of such
are
employment
[sic]
stances when the
reasonably
where such “restraint
acceptable practice
[is]
an
to maintain order.”
necessary
circumstances often have been found
sister
Exceptional
...
court has reason to
jurisdictions as well where
attack others.
might
believe that an unrestrained defendant
...
the trial evidence shows that a violent defen-
[W]here
trial,
prejudice
at the
no
dant was incarcerated
time
jury.
are visible to the
occurs even when restraints
as a
already
...
who
had been convicted
[A]n
by
jury
prejudiced
murderer
the same
could not have been
anytime
appear-
defendant]
or circumstances
[sic]
[the
restraints____
waived his
Appellant
them in
ing before
subject
on the
by faffing
question
claims to error
cautionary
or to ask for
instructions.
restraints
(citations omitted).
12-14,
In light
Id. at
435
shackles,
the
before the
objectеd to
counsel
When defense
the
courtroom,
judge countered with
to
the
jury returned
the
feet. Defense
appellant’s
could not see
jury
the
opinion that
can,
is
they
point
think
but the
“You don’t
argued:
counsel
one
two or
Judge.
possible
It is
that
or
it
possibility,
that
is a
at some
look
many
jurors
point
of the
could
four or hover [sic]
then
to
judge
The trial
went
Mr. Brown’s feet.”
over and see
points
that
vantage
various
concluded
the
box and from
clearly
feet
and
be
to see
jurors would
unable
looking for them. The court
the shackles unless
would not see
explanation
place
an
of the decision to
asked the sheriff for
had
appellant
informed that
shackles and was
attempted
of
to take
obey
refused
an order
the sheriff and
to
control,
that
neces-
that
believed
restraint was
and
the sheriff
Fur-
safety
the
of the courtroom.
sary
peace
insure
ther,
juror
no
saw the
any
offers
evidence
14,
See
at
by the observation.
id.
shackles or was influenced
Davis,
956;
Pa.
v.
grant a new trial when believes miscarriage in a of of evidence and resulted weight Although granted new trial should not be because justice. a trial on testimony judge of a or because the mere conflict conclusion, different facts would have arrived same verdict is so jury’s be awarded when the new trial should sense justice as to shock one’s contrary evidence of imperative right so award a new trial is may opportunity prevail. given be another Thompson City Pa. Philadelphia, added). (citations (1985) omitted, A motion emphasis weight against for a trial that the verdict was alleging new court. to the discretion of evidence addressed therefore, review, is a review of exercise Appellate *22 discretion, not the whether thе verdict is underlying question weight the of the evidence. It is against of an court to the duty appellate give gravest the consider- findings by ation to the and reasons advanced the trial judge. repeatedly have said that we will not reverse the
We trial, of a new unless there was a clear grant [or denial] discretion, abuse of or an error of law which controlled the outcome the case.
... granting “One of the least assailable reasons for [or a new trial is the court’s conviction that denying] lower against weight the verdict was was the of the [or not] process evidence and that new dictated [or not] justice. by the interests With reasons this action record, only or in the a abuse of given appearing palpable discretion will cause us to overturn the court’s action.” In determining grant whether or not the of a new trial discretion, constituted an abuse of it is our to duty review the entire record.
An appellate by court its nature stands on a different plane than that of a trial court. а trial court’s Whereas a grant deny decision to or new trial is aided an on-the- evidence, of the an appellate scene evaluation court’s review solely rests a cold record. Because of this upon disparity an vantage points appellate empowered court is not merely opinion concerning substitute its weight judge. evidence for that of the trial Rather our court has consistently appellate held that review of the trial court’s of a trial on grant judge new focus whether the trial discretion, palpably opposed has abused his as to whether appellate support court can find the record for the verdict____ jury’s reviewing propriety entire record to determine the trial,
of a new
an
court must first determine
appellate
the trial judge’s
whether
reasons and factual basis can be
Unless there are facts and
of record
supported.
inferences
discretion,
that disclose a
abuse of
the trial
palpable
judge’s
prеvail.
place
appellate
reasons should
It is not the
of an
any
than
judge’s
the trial
discretion
more
court
invade
may
jury,
invade
of a
unless both or
judge
province
their function.
palpably
either have
abused
determine whether a trial court’s decision constituted
To
discretion,
appellate
abuse of
an
court must
palpable
evidence;
weight
“examine
record
assess
however,
judge,
as the trial
determine whether
verdict,
but
preponderance
opposes
evidence
to determine
the court below in so finding
rather
whether
judicial
exceeded the limits of
discretion and invaded
plainly
*23
the
of
the record ade-
jury.”
exclusive domain
the
Where
court,
the
trial court has acted
quately supports
trial
the
judicial
its
discretion.
within the limits of
(citations omitted).
598-600,
Id.
Failure to between and of the appellate exercise of discretion review court’s resulted in of weight misinterpretation of evidence has of this court. The Commonwealth asserts opinions recent of a verdict is against its brief that denial claim capital be even in weight appealed, evidence cannot Karkaria, cases, 412, citing Commonwealth v. 533 Pa. 418-19 Commonwealth v. 3, 1167, (1993); n. A.2d 1170 n. 3 625 Wallace, (1989); 719, 522 561 A.2d 728 and Pa. Nelson, v. 262, 728, n. Commonwealth 514 Pa. 271 523 A.2d 3; denied, 3, cert. 293, 98 L.Ed.2d 733 n. U.S. 108 S.Ct. Karkaria, (1987). we stated: presented on questions characterizes sufficiency of the appeal challenges “weight” as to the allegation against An the verdict evidence. by of the evidence is a matter to be resolved “weight” trial court: court, legitimacy there be some for a trial who may
While testified, they also observed the witnesses as has [sic] that extent weight consider the of the evidence credibility, there is jury’s review the determination court, justification appellate relying upon no for an surely record, a cold to exercise such a function. 50, 59-60, v. 467 Pa. Farquharson,
Commonwealth
545, 550
Karkaria,
A.2d
v.
Commonwealth
Nelson,
Similarly,
at 1170 n. 3.
(citations
omitted),
at 271 n.
The
the distinction in Common
Superior Court
(1991).
v.
408
we review the trial court’s exercise of its discretion denying challenge a motion for a new trial based on a to the in weight of the evidence. The law this Commonwealth has that a “on the long may ground been new trial be ordered
439 evidence, of against weight the the when that the verdict is as to contrary is so to the evidence shock jury’s the verdict award a new trial is justice, of and the of one’s sense opportunity right may given so that be another imperative prevail.” in denying trial by judge The exercise of discrеtion the weight of challenge for trial based on a motion new appellate not unfettered. The need for the evidence is acknowledged Supreme the Court Com by review was Powell, 590 1240 monwealth v. Pa. A.2d “in new trial holding grant that a trial court could C.J., Court, Nix, per of observed: justice,” interest [wjhile discretionary powers of a court’s scope trial broad, deal with the factual circumstances confronts that the necessarily it is not unlimited. It follows re- defer of appellate courts to that exercise quirement propriety limitation discretion is not without either. may of assessed of such an exercise discretion be apparent when it is that there was an appellate process abuse that discretion. Pa. at A.2d at 1244. Wallace, supra, v.
The decisions Commonwealth Nelson, v. did not refer nor supra, Commonwealth Pennsylvania cases in overrule line of purport reviewed exercise of the appellate which courts have An weighing ap- discretion in evidencе. lower court’s duty court has the to review the trial court’s denial pellate grounds motion a new trial on the a defendant’s for against weight verdict the evidence. The determine that review is to whether purpose of abused its discretion and to substitute this court the trial judgment Court’s court. 439-40, 597 Murray, Pa.Super. A.2d (citations added). omitted, emphasis *25 113-14 review, narrowly scope
Within this circumscribed not its discretion in evident that the trial court did abuse is ground trial on the motion for new denying appellant’s all of the evidence. As is weight against the verdict was post-trial motions practice, appellant’s in trial too common and “sufficiency to the only boilerplate challenge presented evidence,” the differ- neglecting differentiate weight of the challenges, and inhering the different ing considerations evidence was over- preponderant what neglecting, specify allegedly reaching guilt a verdict looked court, of the evidence. Thus the weight against of the sufficiency weight motion on the denying the based evidence, length. the еvidence at did not review brief, how the verdict again specify fails appellate evidence, merely to weight referring of the against the Commonwealth and contradictory presented by evidence likely in the record which was nothing There is by appellant. cry out for a new justice trial court’s sense of to shock the justice prevail. We conclude permit trial in order to in denying its discretion the trial court did abuse for a trial. motion new must affirmed.
Accordingly, the sentence be affirmed.6 of sentence Judgment C.J., the court and files a NIX, joins opinion concurring opinion.
MONTEMURO, J., sitting by designation. Justice, NIX, concurring. Chief However, I majority’s opinion. separate- I in the write join of certain testi- majority’s of the characterization ly because to the being exception as an mony complained by Appellant as incorrectly characterized hearsay testimony rule. This testimony was not hearsay an to the rule. This exception hearsay. told her testified that the victim Hudgins Charlena
Witness left thе house and that the victim Appellant up had torn Prothonotary Supreme Court is directed to transmit 6. The l(i). § complete record in this case. Pa.C.S. Governor-the *26 441 states that majority correctly as a result. The the house vio- about [Appellant]’s out-of-court statement “[t]he victim’s but not for the truth the statement lence was thus admitted ” 422. The Op. the witness.... of its effect on because out-of-court statement on to majority goes “[a]s state truth, it as an excep- for its was admissible was not admitted (citation omitted). rule Id. against hearsay.” tion to the to prove is not admitted an out-of-court statement Where said, does to that hearsay apply rule not truth of what Fultz, 212-13, 207, v. 386 statement. (1978) 455 513, Wright, Commonwealth v. Pa. (citing A.2d 515 (1974)); Wigmore, A.2d see also 6 (Chadbourn rev.1976). Hudgins’ § 1766 As Ms. Evidence out-of-court statement testimony regarding the victim’s left home behavior not Appellant’s he because Hudgins, it had on for its truth effect Ms. offered but rather, rule; it is exception hearsay is not an hearsay. A.2d BALL, Appellant,
Teresa MINNICK, Appellee. Thomas Supreme Pennsylvania. Court Sept.
Argued 1993. Oct.
Decided 1994.