Commonwealth v. Chmiel

889 A.2d 501 Pennsylvania, Respondent COMMONWEALTH

v. COLE,

Shawn Petitioner. Supreme Pennsylvania. Court of 28, 2005.

Dec. ORDER PER CURIAM. NOW,

AND day 28th of December the Petition is Appeal granted Allowance of to: limited Whether Chester in sentenc- County engaged detectives entrapment ing controlled continuing buys make controlled over period long substances an of time extended they after sufficient evidence convict the defendant attempt sentence, an manipulate enhance his and if so is the proper remedy. what Pennsylvania, Appellee

COMMONWEALTH of CHMIEL, Appellant. David Supreme Pennsylvania. Court of

Argued Oct. 2004.

Decided Dec. Elliott, Scranton, Buttner, James Robert Robert Michael for David Chmiel. Norristown,

Amy Blessington, Patrick J. Zapp, Harrisburg, for Com. CASTILLE, NIGRO, NEWMAN, CAPPY, C.J.,

Before EAKIN, BAER, SAYLOR, JJ.

OPINION Justice BAER. a appeal This is direct from the of sentence of judgment 1 following

death the third (Appel conviction David Chmiel lant) murder, for three of first-degree counts counts of two and robbery, one count of out of burglary2 arising the murder victims, James, Lunario, Angelina, three and Victor on 21, September 1983.3 We affirm.

The record that at approximately reveals 9:00 on a.m. 21, Drake, September 1983, Mary a day nurse hired to attend Lunario, James, sister, James found his Angelina, and brother, Victor, murdered in the home the three in shared Throop, Pennsylvania.4 According to the autopsy findings, Angelina wounds; sustained eleven stab James sustained ten wounds; stab and Victor sustained twelve stab wounds. Angelina and James also had defensive stab wounds on their hands arms. Based the physical on findings and/or autopsy and the auditory visual and provided by accounts eyewitnesses, the medical examiner estimated the time death of all three victims p.m. was between 11:00 on Tuesday, 20, September 1983, and 2:00 on a.m. Wednesday September 21, 1983.

The time of death was narrowed upon based information provided by neighbors. several One neighbor, who was walk- ing dog his at approximately 20, 11:00 p.m. September ob- standing served Victor doorway kitchen of the Lunario home Angelina and heard call him. Another neighbor, Sinkevich, Linda was startled her dog barking at p.m. 11:45 722(4), 9711(h)(1); 702(b) 1. §§ See 42 Pa.C.S. Pa.R.A.P. and 1941. 2502(a), §§ 2. respectively. Pa.C.S. and represents This case the third time has been tried on these 3. charges, prior being his two convictions appeal by reversed direct Chmiel, this Court. See Commonwealth v. 536 Pa. 639 A.2d 9 (1994) (Chmiel I) Chmiel, and Commonwealth v. (1999) (Chmiel II). case, procedural history extensive of this spanning twenty years, over will be discussed infra. James, stroke, who had discharged suffered a had been from the previous day. hospital the window, and, blue powder out of her observed a looking upon to her parked a and hood ornament close shiny grill car with he arrived Her husband also saw vehicle when own car. September 2:15 2:30 a.m. on 21. Both home between gone by the vehicle 8:00 a.m. Mrs. stated witnesses identified a car to her subsequently shown Sinkevich house, her also she in front of as one saw photograph Police as one she saw on garage identified a car at State in the photograph of the The vehicle night murders. Appellant. belonged in the garage a.m., neighbor, Lahotsky At about 1:20 another Deborah and, Washenko, waiting let her out the house while dog return, scream, her which she attributed to one of its heard a.m., and 1:25 Pauline neighbors. Between 1:20 a.m. Stroka noise, porch her a and she walked onto heard when God, my Ms. Angelina heard scream “Oh no.” investigate, ill, Stroka, police James had been did not call the who knew had Based something happened she assumed him. because the able to narrow upon police these observations were 2:00 on time the murders to between 1:00 a.m. and a.m. September 21. scene, police a

Upon inspecting the murder discovered during that had used as a mask sweater sleeve been inspection and of the Lunarios. Police robbery murders of money, scene also uncovered substantial amounts crime $12,296 their in cash. The Lunarios cash including kept drawers, albums, photo hid in they which envelopes, boxes, by a a money keeping and maintained record their tally envelopes. inspecting on the front of the While running home, nota- empty envelopes with police discovered indicating that had once contained they tions on the front $4000, had stolen police total of over which concluded been the intruder. family, next With the assistance of DeGrazio who lived Lunarios, police door to the were able trace sweater (hereafter, Chmiel, Appellant’s mask to Martin brother sleeve Martin). 1980’s, In early Martin married DeGrazio’s home, daughter, Mary, living the DeGrazio’s while During befriended their friendship, Victor. Victor allowed Martin access to a strongbox, which contained thick envelopes bills, Thus, consisting money and lent to Martin. $100 Martin knew the Lunarios had of cash envelopes hidden throughout murders, their house. Just before the Martin had falling out with Victor that ended their essentially friend- ship.

The murder investigation revealed that five months prior murders, 21, 1983, the Lunario April Appellant was charged rape, intercourse, involuntary deviate sexual assault, threats, indecent aggravated terroristic and reck- lessly endangering another person.5 Following his arrest for counsel, charges, Appellant Brier, these Attorney retained payment who demanded of a represent retainer to in proceedings related to these crimes. It was the Common- theory wealth’s at trial that Appellant’s financial obligation to Attorney provided Brier motive the murder and robbery of the Lunarios. Another brother of Appellant, Robert D. (hereafter Robert), Chmiel sister, and Appellant’s Nancy (hereafter Chmiel Moran Nancy), confirmed that Appellant needed money to his pay defense attorney. When told Martin he money” needed “fast to pay lawyer, his Martin informed Appellant about Victor’s strongbox of cash and en- velopes money, and Martin and Appellant agreed bur- glarize the Lunario home.

5. Appellant subsequently was convicted of these crimes in 1983. As opinion, during discussed in more detail guilt phase later the currently murder appeal, trial on the defense filed a motion preclude any in limine to Appellant's rape charge reference to and conviction, subsequent precluded and the trial prosecution court the making specific during from guilt phase. reference to them The jury merely Appellant money lawyer, advised that needed for a but was not legal informed about the only nature of the matter. The charges during mention of these penalty phase, when the prosecutor offered charges support finding evidence of the to of the aggravating 9711(d)(9) § circumstance found in 42 (“significant Pa.C.S. history felony involving convictions the threat or use of violence to person’’). jury circumstance, the and, instead, declined aggravating to find this mitigating found as a Appellant's signifi- factor lack of a history prior cant pursuant criminal convictions to 42 Pa.C.S. 9711(e)(1). § Lunarios, their rob Martin and plan to to

Pursuant Martin’s fashioned masks out one of sweaters. Appellant of the Lunario Appellant layout Martin also described to Martin, however, told that he police subsequently home. later and mind was his friend he feared changed his because Victor Thus, in-laws, he next door. may by be seen his who lived out of the plan. Martin backed murders, Appellant Lunario and morning

On the after the fire home of their sister rebuilding damaged Martin were husband, (hereafter, Thomas Mr. Nancy and her Buffton Buffton).6 September At 10:30 Robert’s wife a.m. and Martin that visited the construction site informed previous night. Ap- had been murdered the Lunarios When sup- from gathering returned the construction site pellant Appel- about the murders. plies, Appellant Martin confronted afternoon, Later that initially lant denied involvement. any he had however, admitted to Martin that murdered Appellant Appellant provided also Martin with a detailed Lunarios. transpired night. account of had what crime, conveyed to Appellant’s description police of the later Martin, at the matched the information and evidence found had Specifically, Appellant crime scene. told Martin that he door, via upon tried enter the Lunarios’ home the cellar but locked, finding proceeded through it to enter the home home, rear on the first floor. Once inside the Angelina, door room, out, on the in the so sitting living couch cried who was her. told killed her silence Martin Appellant Appellant from on the attempted hospital James also to scream his bed floor, him Appellant first killed then Appellant and as well. floor, killed proceeded up stairs to second where he stole Victor in bed. advised Martin that he his $4,500.00 Angelina’s from the and from strongbox purse. $800 of the money also searched for under cushions on, then sitting straightened sofa been and Angelina conspired Mr. burn the Buffton home so Buffton and Martin had proceeds could fire rebuild Buffton collect the insurance Mr. guilty pled later his home. Martin Mr. Buffton arson-related resulting from those that fire were both sentenced for offenses crimes. into Angelina’s slumped body upright position. Appellant an the placed money informed Martin that he stolen in a pillow committing case he obtained from the Lunario home. After cash, premises searching Appellant murders and for home, wife, by drove to Martin’s but was advised Martin’s Later, Mary, that Martin not home. upon reading a news account the murders that discussed substantial sums money Appellant Martin “it by police, recovered told stands, have been nice to it get only would that” because I “as N.T., got 8/26/02, them.” each of at 33-34. $1700 murders, Within a of the week two testified to witnesses seeing Appellant drinking flash bills while at a neighbor- $100 witnesses, Crawford, hood bar. One of these Darryl testified that when wife contacted him telephone at the by bar, they engaged argument during heated which Appel- N.T., 8/26/02, lant “I’ll kill you exclaimed too.” at 181. on Based the sweater mask at the sleeve found Lunario home, police investigation Martin, led to whom the police on questioned September initially Martin denied any knowledge involvement with of the Lunario murders. Upon being confronted the police with a photograph depict- him ing wearing mask, the sweater make used to however, Martin informed police Appellant’s confession him. During police Martin provided interview details that only known, the murderer would have no such as detailed information public. had been released to the provided

Included the details to the police by Martin was the fact that the victims had been robbed and had money been drawer; removed from box in Victor’s dresser cellar door was locked and burglar gained entry through door; an sofa, unlocked rear Angelina was seated floor, James inwas bed on the first in an Victor was bedroom; upstairs Angelina yelled, James was unable to (because stroke); do so of his his Appellant light drove blue home, 1976 Grand Prix to the Lunario parked couple away; blocks gloves wore committing while disposed crimes and of the murder weapon; Appellant wore made; one of the masks sweater he and Martin money; Appellant repositioned room for Angelina’s searched cushions; he sofa and after searched under the Angelina pillow carry a case from the home to took Appellant money. Martin, provided by information

Based on detailed he have learned this information concluded that could police murderer. Police ruled out Martin’s only from the actual independently verifying in murders his involvement Martin, According he alibi several sources. impartial 21, 1983, September hours of with his spent early morning Buffton, Mr. the Lackawanna County brother-in-law whom (ARC) employed keep of Retarded Citizens Association Scranton, East in occurring for brush fires Mountain watch home in twenty-five Throop. minutes from the Lunario employees Fire Chief and confirmed Martin’s Scranton ARC period. for that time alibi Carlson, Trooper

At the and request Trooper Gaetano 28, 1983, so agreed September Martin wear a wire on could and record their conversation. Appellant he meet with meeting were made for the Martin Arrangements between During in a lot.7 Appellant place parking and take his to Martin. meeting, guarded with remarks Appellant was Nonetheless, midnight, following after the conclusion shortly conversation, police Appellant. of the recorded arrested administered Miranda arresting After Appellant, police he warnings indicated that understood his however, rights.8 Appellant, agreed to constitutional answer Trooper into Trooper questions. inquired Gaetano’s Gaetano Martin, arriving circling upon As the block to meet Trooper Trooper Gaetano that he intended to move Carlson advised nearby parking from a street into the lot their surveillance vehicle disagreement hope achieving a audio A better transmission. ensued Trooper the officers because Gaetano feared that such move between Trooper repositioned persisted would blow their cover. Carlson inadvertently process, parked directly he Dodge Diplomat. In the their recognized police Appellant, the vehicle as the one used next to who questioning day transport earlier that Martin for from the construc- result, Appellant tion site. concluded that Martin wired. As Arizona, 384 U.S. S.Ct. 16 L.Ed.2d 694 8. See Miranda Appellant’s (ie., whereabouts “last Tuesday night” September 21, 1983), to which Appellant responded that he had been at watching home television with his Trooper wife. When Gaeta- further, no pressed Appellant declined to elaborate or provide any more arrest, information. The after day police conducted a search, search of his During home. they discovered dollar bills on top $2400 $50 $100 hutch in the dining room. arrest,

After Appellant’s a Pennsylvania State Police foren- sic scientist conducted a microscopic analysis six hairs that were retrieved from the sweater sleeve mask found in Victor’s bedroom. When the forensic scientist compared those hairs microscopically with hairs Appellant, obtained from both sets of hairs contained identical features. The forensic scientist concluded that the two hairs found on the mask were micro- scopically similar to hair, Appellant’s and excluded Martin and the addition, Lunarios as In sources. mitochondrial DNA testing revealed that Appellant matched one of the mitochon- drial profiles DNA retrieved from two of the hairs found in the sweater sleeve mask.9 29, 1983,

On September Appellant charged crimi- homicide, nal robbery, burglary, theft by taking unlawful in connection Victor, with the deaths of Angelina, and James. 29, 1984, On October a jury Appellant found of guilty three counts of murder of the first-degree, two counts of robbery, one count of burglary, and two counts of theft unlawful taking. Following of completion trial, the penalty phase of jury Appellant sentenced to death. Appellant filed counseled post-trial motions as well as a pro petition se alleging that Attorney Kennedy for, alia, had been ineffective inter making no witnesses, effort to locate alibi him discouraging from stand, taking and failing to an request accomplice instruc- N.T., Humans have both nuclear DNA and mitochondrial DNA. 8/29/2002, at 151. Mitochondrial DNA is found outside of the cell nucleus, mitochondria, in the id. only at and is inherited from (distinguishable one's mother cell, forming from DNA the nucleus of each discussion, which parents). is inherited from general both For a Cheng, Issues, see Edward K. Emerging Legal Mitochondrial DNA: Pol'y J.L. & court testimony. appointed tion as Martin’s trial new counsel, motions, held an stayed post-trial evidentiary (treated hearing hearing as a pursuant then-effective (PCHA), §§ Act 9541- Hearing Post Conviction Pa.C.S. 9551) Following hearing, on the ineffectiveness claims. at testified, the Attorney Kennedy trial court denied the which PCHA relief and formally motions for new trial for appeal, the sentence of death. On direct Court imposed Attorney grounds reversed conviction on Ken- Appellant’s nedy failing request accomplice had ineffective an been I, testimony. Martin’s Chmiel regarding witness instruction at 9. conviction, After first he retried reversal trial, filed for the murders. Prior an Lunario alia, motion inter the trial court requesting, omnibus testimony given by Attorney the use trial preclude Kennedy hearing at the 1988 PCHA basis evidentiary testimony impermissibly that this disclosed confidential attorney-client by revealing communications more had told him than one version of events and his II, on the of the night whereabouts murders. See Chmiel Accordingly, A.2d at 409. The trial court denied motion. trial, during prosecution testimony the second introduced by Attorney Kennedy during prior PCHA hear- provided 2, 1995, jury Appellant guilty March ing. On second found first-degree, three counts murder two counts of robbery, one of At the of the burglary. count conclusion to phase, sentenced death. penalty jury Appellant On Court, 19, 1999, on to this August appeal direct we reversed that the Appellant’s testimony second conviction on basis hearing of from the should not Attorney Kennedy PCHA have during admitted into been evidence second trial of testimony Appellant’s right because the use violated right his to against compelled self-incrimination and effective II, 738 A.2d at 413. assistance counsel. Chmiel 16, 2000, On the record in this case February was court, remanded trial trial for back which scheduled 1, 30, 2000, May Appellant pre- 2000. On filed May various

571 motions, including a on prosecution trial motion dismiss the upon jeopardy grounds prosecutorial double based miscond 2000, May 22, disposed uct.10 On the trial Appel court motions, including lant’s the assertion of double jeopardy. Appellant took interlocutory appeal Superior an to the Court court’s for challenging trial refusal dismiss placing twice court, him jeopardy. Court Superior affirmed trial Chmiel, and we denied See v. review.11 Commonwealth 777 denied, A.2d (Pa.Super.2001), 459 allocatur Commonwealth v. Chmiel, 736, (2001), denied, 567 788 Pa. A.2d 372 cert. Chmiel 1059, 1921, v. Pennsylvania, 535 U.S. 122 S.Ct. 152 L.Ed.2d (2002). 829 appeals

After exhausted jeopar- his on the double claim, dy the trial court begin August rescheduled trial to 5, dire, 2002. During voir which was August conducted from 15, 2002, 5 August Juror 5 probably No. indicated he impose would not want to the death so if penalty, but would do required. juror This then left the room so defense counsel prosecutor and the could announce whether was acceptable. he Both defense counsel and prosecutor stated that he was acceptable, No. and Juror 5 was summoned back into the room. Before he could be acceptance, advised his he had something volunteered he say, more to further unsolicited, opined, that he having a hard time idea of the death imposing penalty. Consequently, the trial jeopardy prosecutor's 10. Double bars retrial where the misconduct provoke moving intended defendant into when mistrial or prosecutor intentionally the conduct of the is prejudice undertaken to Chmiel, point defendant to the of the denial a fair trial. 777 A.2d 2083, 463; 667, Oregon Kennedy, see also v. 456 U.S. 102 S.Ct. 72 (1982); Smith, 416 L.Ed.2d 321, Commonwealth 532 Pa. A.2d (1992); Simons, Commonwealth v. A.2d appealed the denial of his motion to dismiss as a collateral ("A 313(b) separable order. Pa.R.A.P. collateral order is an order from right and collateral to the main cause of action where the involved is important question presented too to be denied review and the such is case, judgment postponed that if review is until final in the the claim lost.”); irreparably will be Brady, Commonwealth v. Pa. (1986) (allowing 289-91 appeal an immediate from denial jeopardy double claim under collateral order doctrine where trial court frivolous). finding makes a is that motion No. on to questioning resumed him. Juror 5 went court did know if he would be that he was Catholic and explain if the it. penalty required the death even law impose able to strike prosecutor In of these statements the moved light prosecutor’s The trial court denied the Juror No. 5 for cause. cause, prosecutor to strike for but allowed motion challenge. exercise peremptory in- any testified and denied proceeded. Appellant Trial Lunarios, of the robbery murders and volvement with crimes the result claiming prosecution that his for those Gaetano, Martin, Mr. Buff- conspiracy involving Trooper of a ton, for and others. In earlier trials the Lunario murders that he could not Appellant had stated under oath for his identify any person or who could account produce morning 1:00 a.m. and 2:15 a.m. on the between whereabouts trial, time his third had By Appellant of the murders. his Although police alibi. he told the arrest changed upon his wife, watching he been with his at had home television he at the of Patrick trial he had been home testified 20,1983 to 1:30 p.m. Tuesday, September from 11:00 on Battle Wednesday morning September a.m. 1983 watch the Baltimore and the Detroit double-header between Orioles Battle, however, Mr. testified that double-header Tigers. after night, twenty-four been almost hours Wednesday had further testified that after the baseball murders. residence, he 1:45 a.m. games, arriving by drove Martin’s wife, However, according Mary, Appellant to Martin’s arrived at a.m. on 1983. Another September at her home 3:45 witness, a.m. he McGlynn, Daniel testified that 4:00 one mile from the in a restaurant located observed Lunarios’ home. 6, 2002, September jury Appellant guilty found

On murder, robbery counts of first-degree three counts two During of the burglary. penalty phase and one count trial, cir- following aggravating asserted prosecutor (1) the committed in the perpetra- cumstances: murders were 9711(d)(6); § felony (robbery burglary), of a 42 Pa.C.S. tion (2) assault, threats, rape, convictions terroristic recklessly endangering sig- and another constituted a person nificant of convictions the use or history felony involving 9711(d)(9); § person, threat of violence to another Pa.C.S. (3) in multiple and virtue of his murder convictions case, Appellant had been convicted of another murder either issue, before or at the time of the offenses Pa.C.S. 9711(d)(ll). §

Appellant countered that the circum- following mitigating (1) were no present: Appellant significant history stances convictions, (2) 9711(e)(1); criminal prior § Pa.C.S. lacked the Appellant capacity appreciate his conduct or to conform his conduct to the requirements of due to sub- law alcohol, 9711(e)(3); stantial impairment by § 42 Pa.C.S. and (3) other evidence of mitigation concerning existed the charac- ter and of Appellant record and the circumstances of his (a) (b) (c) offense: family relationships, upbringing, abusive (d) (e) service, religious practice, record, military prison and (f) 9711(e)(8). relationship daughter, § with his 42 Pa.C.S. 10, 2002,

On September at the conclusion of the penalty phase, the jury returned a death penalty verdict. As to the victims, murder of each of the three the jury found two (1) aggravating circumstances: the commission of a murder perpetration (2) of a robbery or and burglary; multiple murder convictions the murders of the jury Lunarios. The concluded that Appellant did not a significant have history felony convictions involving use or threat of violence to person. another The jury further found the following mitigat- (1) ing circumstances: the absence of a significant history (2) convictions, criminal prior and “other evidence of mitiga- tion” as a family result of his relationships and abusive upbringing. jury The unanimously concluded that aggra- vating circumstances outweighed the mitigating circumstances thereby Appellant sentenced death. court sen- tenced on October to three death sentences fourteen thirty-two years incarceration on the rob- bery and burglary convictions. 15, 2002,

On October post-sentence filed motions. counsel, After obtaining new Appellant filed an post- amended trial of ineffective assistance of adding sentence motion claims evidentiary on the hearing counsel. The trial court held an motion, including ineffectiveness amended post-sentence claims, 12, 2003, trial time Appellant’s at which June 20, 2003, the trial presented testimony. August counsel On it all of court a memorandum and order which denied issued appeal claims. Pursuant to the automatic direct 722(4) 9711(h)(1), § § in 42 provisions found Pa.C.S. case to this Court for our review. progressed Sufficiency

I. Evidence first, cases death turn as we do in all where the We of the penalty imposed, independent has been our review support Appellant’s that it is evidence ensure sufficient Zettle first-degree convictions for murder. Commonwealth v. denied, 16, 937, (1982), 500 Pa. 454 A.2d 942 n. 3 cert. moyer, (1983). 2444, 970, 1327 do 461 U.S. 103 S.Ct. 77 L.Ed.2d We the challenge so does notwithstanding Freeman, v. 573 sufficiency of the evidence. Commonwealth (2003). 532, reviewing the of sufficiency Pa. A.2d 385 In 827 evidence, the must the evidence admit we determine whether trial, at all inferences therefrom ted and reasonable drawn most light viewed in the favorable to Commonwealth when winner, all as verdict are sufficient to establish of the elements of the a reasonable doubt. Commonwealth v. beyond offense (2000). 1, 859, A.2d Bridges, 563 Pa. 757 864 must also We bear mind that: burden of may by sustain its means Commonwealth evidence; entire record

wholly circumstantial trial considered, should be evaluated all evidence received trial cor- rulings whether or not the court’s thereon were fact, rect; passing upon credibility and the trier of while weight of of the is free to believe proof, witnesses and all, part, none of the evidence. or Watkins, 1203, 194, 1211 v. Pa. 843 A.2d Commonwealth 577 (2003). murder, finding

In order to sustain a of first-degree (1) being the evidence must establish that a human

575 (2) killed; unlawfully person responsible accused is for (3) the accused acted with a kill. killing; specific intent to 2502(a); 269, § 18 Commonwealth v. 563 Pa. Spotz, Pa.C.S. (2000). 1280, killing “killing 759 A.2d 1283 An intentional is a wait, by or poison any means other kind of lying willful, deliberate, premeditated killing.” 18 Pa.C.S. 2502(d). § Specific through intent to kill can be established circumstantial such the use a deadly weapon evidence as upon part body. a vital victim’s v. Commonwealth Ramos, (2003); A.2d Commonwealth v. Walker, Pa. trial, evidence adduced viewed in most light winner, to the

favorable Commonwealth as verdict established times, that Angelina was stabbed a total eleven with a vital organ times; punctured four James stab sustained ten wounds; wounds, fatal including six and Victor suffered twelve wounds, Thus, stab eight of which fatal. were the evidence established the use repeated deadly weapon vital upon parts of victims’ bodies sufficient to demonstrate the specific Ramos, beyond intent to kill a reasonable doubt. See Walker, supra.

Further, although proof necessary of motive is not murder, of first-degree conviction see Commonwealth Zimmerman, 351 Pa.Super. (1986), Appellant Commonwealth demonstrated that money needed pay attorney his a retainer had a and motive to compelling the burglarize Although Appellant home. not pay able to attorney his prior to the he burglary, was seen displaying $100 bills and was seized from his home September $2400 on 1983.

Moreover, Appellant confessed Martin that he into broke and, the inside, Lunario home alone once killed intentionally the siblings. three Lunario Appellant stole the from $5300 home, he carried in away pillowcase. which a He subsequent- ly provided his brother with of numerous details the crime not public. been made In addition Martin’s Mrs. Sinkevich in the testimony, Appellant’s vicinity saw car of police at time of the murders. The the Lunario home the that had from the crime scene the sweater sleeve recovered the the during robbery. a mask When hairs been used as hair, to Appellant’s the compared from sweater-mask were By similar. his microscopically sets hair were own both admission, an alibi or identify could witness Appellant a.m. for between 1:00 account his whereabouts otherwise the McGlynn murders. Daniel morning 2:15 a.m. the the scene in a restaurant near murder Appellant observed 1983. early morning September the the could presented, jury on the evidence have Based a doubt acted beyond concluded reasonable siblings. Each of intent to kill the Lunario these specific with death; jury and the concluded brutally stabbed victims the Accordingly, evi- killings. committed convictions for was sufficient to sustain dence murder. first-degree sufficiency inquiry, of the evidence

Having resolved we by Appellant. turn to the claims raised now II. Voir Dire error, claim of trial court Appellant argues In his first by allowing and abused its discretion that the trial court erred peremptory challenge to exercise a violation prosecutor by accepted Pa.R.Crim.P. 63112after Juror No. 5 was both provides, part: Specifically, the rule in relevant used, cases, (E) capital individual dire must be In voir medrod that alternative. unless defendant waives (1) Challenge System Voir Dire and Individual (a) jurors individually prospective be conducted Voir dire of shall may beyond hearing presence of other be conducted jurors. cause, (b) Challenges, peremptory be both and for shall exercised Commonwealth, alternately, beginning attorney until for jurors Challenges immediately chosen. shall be exercised all are parties, juror accepted by all prospective is examined. Once after by challenge. prospective juror peremptory be a shall not mistrial, removed challenge declaring judge may a Without allow cause deliberate, begins any jury provided sufficient time before selected, to be alternates have been defendant consents tried jury pursuant than to Rule 641. fewer added). 631(E)(1)(a) (b) (emphasis & Pa.R.Crim.P. defense counsel and the Based on the prosecutor. language of 631, Rule Appellant argues although juror, after being cause, accepted by parties, may juror both be stricken for “shall” not be stricken by way peremptory challenge. it

Appellant argues is clear that the of the language Here, current Rule 631 is restrictive and unambiguous. juror accepted by parties, was both then stricken after the trial juror. court found that no cause existed strike the Appellant which, avers that the trial court exercised discretion 631, Therefore, under Rule does not exist. Appellant argues 631(E), that under Rule Juror No. 5 required sit as a juror.13

Appellant argues also he prejudiced Common- improper wealth’s use of a peremptory challenge because the jury returned a sentence of death after finding that mitigating circumstances were outweighed by aggravating circumstances. Appellant argues that the scrutiny under which Juror No. 5 would have placed the facts presented did not occur because of removal, his was therefore denied due process in the selection of the jury.

The Commonwealth points to the language of Rule 631(E)(1)(b) that a to a challenge juror, whether peremptory cause, or for “shall be exercised immediately pro- after spective juror 631(E)(1)(b) (em- is examined.” Pa.R.Crim.P. 13. Neither the Commonwealth nor takes issue with the trial court's determination that cause did not exist to strike Juror No. 5. Although Appellant dealing cites to and discusses cases with constitu principles governing tional prospective jurors dismissal ol for cause based on their view of the penalty, principles death these do come play into here because Juror No. 5 was not dismissed for cause. See Illinois, 510, Witherspoon v. 391 U.S. 88 S.Ct. 20 L.Ed.2d 776 (1968) (enunciating jurors the standard for leading removal of towards Witt, qualified jury''); Wainwright a "death 469 U.S. 105 S.Ct. (1985) ("LA]juror 83 L.Ed.2d may challenged not be for cause based on capital punishment his views about unless those views would prevent substantially impair performance juror of his duties as a oath.''). in accordance with his instruction and his Dismissal for cause by peremptory challenge very things. are challenge different A serve, prospective cause is directed juror’s ability at a while a peremptory challenge may any be exercised for reason or no reason at Evans, all. Commonwealth v. 61 A 989

578 added). avers that Juror No. 5’s

phasis The Commonwealth the the complete examination was not until court received juror compelled felt supplemental information clarifying argues Appellant only The Commonwealth that is provide. its to relief this issue if the trial court abused entitled discretion, it did not occur here. suggest which reasoning with the Commonwealth’s

Appellant disagrees resumed No. 5 could be that voir dire had before Juror he notes accepted. Specifically, Appellant informed that was had, that of their parties that record reflects both own volition, questioning their and had informed completed 5 acceptable, trial that Juror No. which indicates court Further, Appellant argues that the examination had ceased. that language that exists no Rule 631 declares there within juror is is informed completed only that voir dire when the Rather, Marrero, 1102, (1996), v. 687 A.2d 1107 cert. denied, 334, (1997); 522 U.S. 118 S.Ct. 139 L.Ed.2d (James) Smith, Pa.15, Commonwealth (1988) (“The of the voir purpose dire examination is not to provide a better upon basis which a defendant can exercise his peremptory challenges, but to determine any whether venire man has formed a opinion fixed as to the guilt accused’s innocence.”).

Juror No. 5 was examined and accepted by first defense counsel, then the When prosecutor. he was recalled to the this, courtroom to be advised before communi- anything was him, to he cated the court if he say asked could something. He to proceeded tell the court and counsel: “I really don’t I would know how feel about death I penalty. don’t N.T., 8/6/2002, at 105. know.” In the face spontaneous statement, the trial court resumed the examination and pro- ceeded to him question further about ability his to serve as a juror. responded Juror No. 5 by expressing his concerns about he impose whether could actually death “I penalty: just deep don’t if it, down know I’d be able to do if I’d be leaning life if he ... towards was convicted if I would be ... persuaded go to to life I because don’t want to make that examination, decision.” Id. After the additional prosecu- exchange: 14. Juror No. 5’s examination concluded with this realizing you you But [The Court]: will decide the facts and I will tell is, you you what the if apply law take those facts as find them and it say imprisonment, you law and it be should life vote would for imprisonment. you you life ... apply But if believe when it that it motion cause. The court denied that tor moved strike for that he believed he could juror’s on the statements based it law, prosecutor but that would allow indicated follow a peremptory to exercise opportunity and defense counsel N.T., 8/06/02, at trial if 112. The either wished. challenge only objection counsel’s court overruled defense chal- stage. at that permissible for lenge cause was no that Juror No. support Appellant’s position is There the Common- prior “examined” conclusively had been challenge. require- peremptory exercise its wealth’s may not be used challenges ment in Rule that peremptory must be juror accepted by parties is both prospective after the requirement of the other in rule that read context only after the challenges prospec- are be used peremptory 631(E)(1)(b) (“Chal- is examined. See Pa.R.Crim.P. juror tive prospective after the lenges immediately shall be exercised examined.”). totality, it from Examined its is clear juror is that a motion to use a party’s rule language of the challenge proper only is when examination peremptory both indicat- juror Although parties is prospective complete. 5, the of Juror No. fact remains acceptance ed their his and after he juror acceptance was advised of before courtroom, spontaneously back into the he summoned death clarify position penalty. a desire his the expressed court, discretion, its resumed the examina- exercising The trial its to do its juror, given tion the which was within discretion the remarks were at that unsolicited “somewhat perception Tr. It Op. his earlier comments.” Ct. variance with only completed after the examination was resumed was a peremptory challenge. that the used prosecutor jurors agree, you penalty, all the other 11 would be the death penalty] cast vote if need [for follow the law and that death would be? know, hope I I No. I I could because don’t would [Juror 5]: that situation. never under understand, asking questions We we're these a [The Court]: vacuum. Being tough I do No. a Catholic it’s a decision for me. [Juror 5]: it, personally do I was faced with it agree with but could I it? never so I don’t know. 8/6/02, N.T., at 108.

581 juror, Based the concerns raised the trial by court properly parties allowed the opportunity exercise Proctor, peremptory challenge. 526 Pa. Commonwealth Cf. 246, 454, (1991) juror (finding though even defense, accepted by been Commonwealth court did not abuse its discretion in allowing the Common to challenge juror wealth after he “he by was reexamined both the Commonwealth and the Court” and indicated “that he would be unable to follow Court’s instruction as to the definition legal premeditation”). Accordingly, Appellant has not demonstrated an abuse of discretion the trial court. As it falls within the trial court’s discretion to resume the juror’s examination upon prospective spontaneous clarifica tions, the trial court properly followed mandates of Rule 631 by both offering parties the opportunity per exercise emptory challenges. Appellant’s argument in this regard fails.

III. Admission of evidence argues the trial court erred on five occasions when it admitted evidence over defense counsel’s objection. The admissibility evidence rests within the court, sound discretion of the trial and its decision will be only reversed upon it showing abused its discretion. Boczkowski, 421, Commonwealth v. (2004); Pa. 846 A.2d 75 Reid, 1, (2002). Commonwealth v. 530, 811 A.2d Further, an ruling by erroneous a trial court on an evidentiary issue does not require us to grant relief where the error was harmless. Commonwealth v. Pa. Young, 561 748 A.2d (1999). The Commonwealth bears the burden of demon strating harmless error. Commonwealth v. Mayhue, 536 Pa. (1)

Harmless error exists where: the error did not prejudice minimis; (2) defendant or the prejudice de erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously evidence; (3) admitted the properly admitted and uncontradicted guilt evidence of sowas over- whelming prejudicial and the effect of the error was so that error could not have

insignificant by comparison to the verdict. contributed Robinson, Pa.

Commonwealth mind, proceed this in seriatim the With we review evidentiary rulings. challenged Identification Admissibility A. of Vehicle the trial erred avers that court and abused Appellant over coun by allowing prosecutor, its discretion defense present sel’s Mrs. Sinkevich’s vehicle identifica objection, out According testimony, tion. to Mrs. she looked Sinkevich’s 20, 1983, on p.m. of her front window at 11:45 September N.T., parked my a car nose to nose car.” “big saw 8/21/02, the color of the car as powder at 155. She described that shiny grill blue with a hood ornament and stated Upon she seen car before. Id at had never 156-57. the murder police during this information to relaying her police Appel investigation, photograph showed car, lant’s she as the vehicle big, powder blue which identified parked that had seen in front her house.15 Id at 160- she 29, 1983, her 61. On Mrs. Sinkevich and husband September barracks, identify at the the car in garage police went to a through alone on a person. ramp garage She walked just cars until she saw a car that “looked looking parked like that in front of house.” Id at parked the one [her] trial, At she testified Appellant’s 161-62. This was vehicle. she in front the car in barracks was same one saw 20,1983. September of her on the night house trials, Prior to Appellant’s previous two this sought testimony by on unsuccessfully preclude relying in-court concerning requirements permissible case-law identification of an accused and identifica asserting unfairly tion procedure highly sugges used police of the Pennsylvania tive and United States Consti violation trial, again sought Before the most recent tutions. preclude testimony. Relying identification undisputed photograph It is this was car. jurisdiction doctrine, the coordinate trial court found the prior allowing trial court’s earlier decisions the testimony applica- ble.16 The court’s earlier decisions relied on v. Commonwealth Carter, (1979), 271 Pa.Super. 414 A.2d 869 holding the constitutional afforded the identification protections during apply of a do not to the of a person identification vehicle. asserts that Carter is still the case on in only point Commonwealth, abrogate and asks us either to it toor application. limit its Carter,

In police were asked to investigate acting two men suspiciously Philadelphia a street 370. corner. A.2d at As the officers man approached, the defendant and another running were them. The toward officers observed holding bag defendant was a a The gun protruding. men stopped placed officers and them in their Just car. police then the received neighborhood information bar had been aby suspect robbed wearing clothes similar to those by worn defendant. The defendant taken to bar by patrons. identification patrons bar identified barrel, bag gun brown and being which were then carried by object an officer as the carried by the robber. The also bartender identified the bag barrel.

Concerning the identification the bag gun, of Supe- rior Court to declined afford the same real protections to evidence that are afforded to the of identification a person:

One of the purposes invoking of stringent such require- on testimony ments relating to the of the identity is accused doctrine, jurisdiction to “[JJudges Pursuant the coordinate of coordi jurisdiction sitting nate in the same case should not overrule each Starr, others’ decisions.” Commonwealth 541 Pa. (1995). “Departure only ... is exceptional allowed in intervening change circumstances such as where there has been an law, rolling change the coni a substantial giving the facts or evidence matter, dispute rise to the prior holding clearly in the or where the injustice erroneous and create would a manifest if at followed.” Id. only promote goal 1332. The judicial rule serves “not to of “(1) economy” (2) protect but expectations parties; also the settled of the decisions; (3) uniformity insure consistency during to maintain case; (4) single the course proper to effectuate the and streamlined (5) justice; bring litigation administration of to an end.” Id. 1331; Berman, A.2d 792, Ryan v. evidence, such weight the enormous ofttimes probative its admission alone. Identification of deciding issue however, evidence, generally does not have an item real it has never been the case that Consequently, this effect. object subject an must be the same identification of Rather, given person. the identification precautions prior in a description, suggestivity in the any uncertainty identification, to be accorded the testimo- weight goes admissibility. ny, not its

Carter, 414 A.2d at 373. Carter, an in argues that unlike this is instance

Appellant i.e., item, vehicle, had identification of the which the Appellant distinguishing himself. Further identifying effect Carter, did not notes that vehicle identification Appellant crime, on the of the no one identified at day occur scene, weight later in great and the identification carried Appellant argues that the inculpating Appellant. Additionally, positive be- by identification offered Mrs. Sinkevich was she in say garage could that the car saw the only cause she in her to she front of house and parked looked similar one saw Finally, in photograph. one later saw the she picture Mrs. argues showing that Sinkevich garage her out the car in the prior having pick car unduly tainting identification testimo- suggestive, thereby ny- contrast, notes that holding

In the Commonwealth Carter’s any by in this Court or the way has not been modified binding precedent by had to be Superior Court and considered Moreover, the the trial court. Commonwealth submits juris- has been endorsed courts other Carter’s rationale very different risks inherent highlighted dictions have as beings opposed in the identification of human inanimate Crannell, 387, 1002, objects. State v. 170 Vt. See (2000) (rejecting 1012-13 defendant’s contention that identifi- impermissibly suggestive, quoting cation of his automobile was “to create a rule approval, declining requiring Carter with car”); array object of an such photo as police provide Miller, 518, (1995) 30, 211 535 523 People Mich.App. N.W.2d

585 (citing Carter approval). Finally, Commonwealth argues any trial court error in regard was harmless because Appellant’s counsel had the opportunity challenge the identification being as untrustworthy various reasons N.T., 8/21/02, (cross and did so. examination 167-179 Sinkevich) N.T., 9/06/02, Mrs. at 67-69 (closing argument counsel). of defense sure,

To be a pretrial procedure in which witness views a photograph of the accused an effort to “elicit identification evidence is peculiarly riddled with innumerable- dangers and variable factors might which seriously, even crucially, derogate Wade, from a fair trial.” United States v. 218, 228, 1926, (1967); U.S. 87 S.Ct. 18 L.Ed.2d 1149 see States, also 377, Simmons v. United 967, U.S. S.Ct. (1968); L.Ed.2d v. California, Gilbert 388 U.S. (1967).

87 S.Ct. 18 L.Ed.2d 1178 If such an identifica tion procedure of the accused is “so unnecessarily suggestive and conducive irreparable identification, mistaken ac [the is denied process Denno, cused] due of law.” Stovall v. 293, 302, U.S. 87 S.Ct. 18 L.Ed.2d 1199 It is clear, then, that photographic identification of a person is if, unduly suggestive under the totality circumstances, of the the identification procedure creates a substantial likelihood of DeJesus, misidentifieation. See Commonwealth v. 580 Pa. 303, 860 A.2d 102

Neither the United States Supreme nor Court our Court has Wade, addressed Gilbert, whether the decisions in Stovall extend protections the that are necessary for identifi cation testimony of an accused that of objects. inanimate However, jurisdiction almost every applies the test articulated in the trilogy Wade to the identification of person, a not physical evidence that might establish the defendant’s guilt. Zenone, (4th See United v. Cir.1998) States 153 F.3d 725 the (holding process due clause inapplicable to witness identifi cation of the weapons used the by robbers to link the defen crime); dant to the Sublett, 926, (9th Johnson v. 63 F.3d 932 Cir.1995) (“Stovall and its progeny do not require car line-ups ....”); State, Dee v. 739, (2001) 273 Ga. 545 S.E.2d 902

586 to identification a inapplicable test

(finding trilogy the Wade suggestive); used was though procedure even the gun, Miller, State, 238, (Miss.1999); 261 535 Hughes 735 So.2d v. of (“Any in the identification suggestiveness N.W.2d at 523 the is to the not admissibili objects weight, inanimate relevant evidence.”); State, 49, v. 57-58 of the Brooks 560 N.E.2d ty, (1984) Roscoe, 212, (Ind.1990); 145 Ariz. 700 P.2d 1312 v. State 1315, (en 1155, 1317- banc); Cyr, v. 122 N.H. 453 State 809, 56, (1982); 639 P.2d 811- Wash.App. v. 31 King, 18 State (Iowa Bruns, 1981); (1982); People Iowa v. 304 N.W.2d 217 Coston, (1977); v. Inge Colo.App. v. 576 P.2d (1976); Commonwealth, Bear 228 S.E.2d Va. 2001). (N.D.Iowa Halford, WL 34152086 in-court automobile identifi- Several of these cases involved Roscoe, a example, kidnapping cation. case which For as car he had the identified the defendant’s vehicle the witness crime, Supreme the Arizona leaving seen scene of that police rejected argument Court defendant’s for the vehicle identi- line-up procedure should have utilized of great weight The court “[b]y fication. noted procedures is authority, right identification pretrial at 1324. to items of evidence.” 700 P.2d inapplicable physical the court sur- reasoning, Based on that held “[f]actors identifications, as rounding suggestive- automobile such only and not the weight, ness of the affect proceedings, Likewise, Id. Su- of the Iowa admissibility, evidence.” pre-trial in Bruns identifi- preme Court declined afford objects protections of inanimate the same afforded cation of the the identification accused: a victim of a car in pretrial by identification which rights does the due implicate process crime occurred here, used identification procedure defendant. While the young request an car victim the impounded suspect, make of the identification police, may the evidence process it does not rise to a claim denial due give n will the If suppression result in of evidence. the identifica- of car the of the identifica- suspect, credibility tion tion could be before the trier properly placed witnesses fact cross-examination argument. weight and final The of the for identification evidence is the trier of fact.

Bruns, 219; Dee, at N.W.2d 903. S.E.2d at agree with other

We states that have examined issue there is no basis applying identification proce- applicable suspects dures to testimony identifying inanimate objects and we decline to protecting extend cases the ac- rights fair pre-trial cused’s to a pre-trial identification identification of physical evidence. is There a difference an between identification of a defendant an inanimate The object. due in process implicated concerns identification of a defendant are not in implicated identification of of an vehicle. Identification accused be tends to direct proof him, of the case against while that of an inanimate is object only indirect of the proof defendant’s This guilt. is principle in even more compelling this instance because motor vehicles hand, are not unique. On other only there is one person the physical exactly characteristics like those of the defendant.

Thus, view, in our Mrs. Sinkevich’s identification of Appel- Rather, lant’s vehicle improper. was not the risks inherent identification objects of inanimate go weight to the and suffi- of the ciency evidence admissibility instead of prop- were Miller, erly jury. 523; submitted to the See N.W.2d Therefore, Inge, S.E.2d at 567. approve we the Superi- or Court’s in Carter holding agree that “it has been never object case identification of an must subject be to the precautions same given identification of person” and that any uncertainty the identification goes to the be weight to afforded to the testimony. 414 A.2d at If the identifica- tion of the suspect, car positive, or suggestive, the credibility Mrs. Sinkevich in that regard was properly placed before jury closing cross-examination and during argument. To the extent Appellant believes vehicle identi- fication was unduly suggestive, his counsel had adequate opportunity to elicit evidence in this regard. jury, not the court, trial is the final arbiter the reliability of Mrs. sum, In find no trial court error testimony. we Sinkevich’s regard. Appellant’s argument based on of Appellant B. Cross-Examination that court erred and contends the trial Appellant allowing prosecutor to question its discretion abused he had maintained different version him about whether murders, following the Lunario where for five months events through obtained confidential communica this information was counsel, Attorney and his trial Appellant prior tions between II and review of Chmiel preliminary testimony A Kennedy. complete trial for a necessary from at is Appellant elicited argument. of Appellant’s discussion conviction, the effective- Appellant challenged After his first Kennedy’s Attorney According Attorney Kennedy. ness in 1988 first hearing testimony following PCHA sentence, him, met and first with Appellant conviction when the murders was that he story night his first regarding joint” he saw a at the scene to “case when shadow was out, and the thought Martin. called Appellant he was into alley got ran down an near the Lunario home and shadow II, later, at A a car. Chmiel 738 A.2d 410. few months attorney his he changed, “suddenly when Appellant’s story elsewhere,” Attorney Kennedy he was remembered an “to out there and structure alibi with a witness get forced Id. story. his at quoting Attorney keeps changing” who Further, after the Kennedy’s testimony. preliminary hearing him, maintained against Appellant at which Martin testified him that he had committed the murders that Martin had told Mr. Buffton. with trial in took the stand and

At his second in the of the Lunario vicinity asserted he had been 20-21, ... 1983 and that he had “never September home on II, different.” Chmiel told anybody anything cross-examination, transcript utilized the prosecutor On testimony hearing. from 1988 PCHA Attorney Kennedy’s admitted, asked, that for “a prosecutor months, a conference Mr. starting of five with period [1983], the 5th maintained that Kennedy you October at 1:00 o’clockin the you morning you were on scene your tried to blame because brother you your brother said running from the scene.” Id. On this Court reversed appeal, and held that this the reference to questioning, specifically Attorney Kennedy, to the effective Appellant’s right violated assistance of counsel and to freedom from incrimi- compelled nation, and remanded for a third trial with the direction that Attorney “shall not be for Kennedy’s testimony any utilized at retrial.” purpose Id. 424.17 trial,

Prior to the third a motion prosecutor presented stand, seeking if permission, Appellant took the to cross- examine and him in impeach with his 1995 he testimony which indicated that he at the scene of the was Lunario home on the of the night murders and he thought observed shadow was his brother. Specifically, prosecutor sought to use the following passage: Well, fact, sir,

Q: isn’t it a though, period for a of five months starting with conference with Mr. on Kennedy October the 5th that you maintained that were on the you scene at 1:00 morning o’clock and tried you to blame your you brother because your said brother was running from the scene?

A: Yes. Id. at 410. The prosecutor that if Appellant maintained took the stand and making statement, denied such a he should be able to use this passage by simply redacting the words “start- ing with a conference with Mr. 5th” Kennedy October so as prohibition avoid our in Chmiel II of any reference to Attorney Kennedy. Defense counsel countered that regard- less of the name, exclusion of the attorney by still excerpt incorporated discussions prior with counsel and should not be permitted. The trial court agreed with defense counsel that any inquiry regarding communication between 17. Justices Castille and Newman dissented and characterized the ma- jority holding placing judicial as imprima- “tantamount this Court's practice perjury tur on the in the Commonwealth.” Chmiel II at 426 (Castille Newman, JJ., . dissenting). II, of Ckmiel virtue

Attorney Kennedy inappropriate by thought comparable but it conceivable that made following the murders. representations to other individuals statements to Any questioning regarding parties such third not, reasoned, court be barred. trial court would the trial permitted the as to prosecutor question Appellant therefore whether, he any may discussions that have had exclusive counsel, during he maintained the first five months following murders that at the scene at 1:00 a.m. he was not, however, The trial court allow prosecutor would any about Kenne- question Appellant Attorney discussion with dy. following place:

At trial the took exchange Now, Q. isn’t it true that maintained you period you five months that were on the scene that crime at 1:00 Marty o’clock tried to blame be- morning you you Marty running cause from the scene of said the crime?

A. I maintained that to whom?

Q. To anybody? THE if Anyone obviously, you said some- except, COURT: doctor, know, lawyer, or a or a thing priest you be anything like that would privileged. No,

A. sir. lie, that’s a Q. you you? Now know don’t A. I a lie know that’s that —no. just is a

Q. you What said lie?

A. That I maintain didn’t that?

Q. Right. A. I was on the o’clock morning. never scene at 1:00 in the the 20 talking September? We’re about of Q. Right.

A. I there. was never

Q. you But you said were?

A. I said I was?

Q. Right. No, A. I to anyone. sir. never said that 9/5/02, N.T., at 5-6. testimony

Based on the above elicited at trial in II prohibition Chmiel of reference to any Attorney Kenne dy’s testimony, PCHA Appellant although submits that no trial, of Attorney mention was made at trial Kennedy court’s decision to allow this at all questioning was error there no because exists evidence either inside outside that he maintained to anyone record this information other Kennedy. than Attorney Similar the “fruit of the poisonous doctrine,18 tree” asserts that Appellant the Commonwealth question would not have had this for the testimony mind but Attorney of Kennedy regarding communications with Appel By Appellant’s lant. allowing credibility to be attacked with of evidence information that was derived from Attorney Ken nedy’s testimony, already which Court had found improp er, that the Appellant prosecutor avers successfully al lowed to the holding circumvent of this Court in II Chmiel attack improperly credibility. points

The Commonwealth out that the of specific concern II Chmiel was the of possible breach attorney-client privilege. This concern Commonwealth, protected, argues be- cause the effect of the questioning was simply determine whether any made non-privileged statements an supplying account events September from differed he version events was presenting trial. The Commonwealth avers that this was not an abuse of trial error, court discretion and even if it was it was harmless because, notes, as the trial court was “essentially permitted to testify falsely consequence.” Op. without Tr. Ct. at 82.19 doctrine, jurisprudence, This the context of Fourth Amendment requires the exclusion evidence or confessions obtained as a result purged by intervening constitutional violation unless Com- events. DeJesus, 415, (2001). v. 567 monwealth Pa. 787 A.2d 394 Initially, reject the we Commonwealth and trial court's contention

19. that, II, Appellant permitted because of Chmiel to take the stand impunity. questioning pursued and lie with cross-examination, Pursuant to the line of on prosecutor the asked he had if ever main-

592 note that cross-examination is the initially

We a for the of witness and testing believability method primary Alaska, 308, 415 94 of his Davis v. U.S. testimony. the truth (1974). 1105, may 39 L.Ed.2d 347 Cross-examination be S.Ct. story, impeach credibility, to test a to employed witness’ for testifying. a Commonwealth to establish witness’ motive (1985). Robinson, “scope 107 The of the the trial cross-examination is a matter within discretion of be absent an abuse of that court and will not reversed Gibson, Pa. Commonwealth v. discretion.” denied, 364, 139 (1997), 118 S.Ct. cert. U.S. L.Ed.2d mind, in that it agree this standard we with

With the of trial court discretion allow prosecutor an abuse he anyone about had ever told question Appellant whether on the of night that had at the Lunario home the he been Appellant’s prior the state- only murders because source were the confidential communications regard ments in Appel- a of Attorney Kennedy, consequence revealed as with following his lant’s claim of ineffective assistance counsel II holding for our Chmiel was fear first trial. basis testimony prior use of counsel would “have a that on exercise their chilling right effect defendants’ 423.20 of counsel.” A.2d at Accord- effective assistance night anyone he been at the Lunario home tained to point, At the trial court intervened clarified murders. doctor, priest "a or question conversations with excluded privileged." Op. lawyer” "anything like that would be Tr. Ct. because negative, his Appellant responded 79. When answer likewise at Therefore, Attorney Kennedy. privileged it excluded conversations with testify permitted Appellant falsely “to appear that Chmiel II does not consequence.” Op. Tr. Ct. without chilling explained reasoning effect that would 20. We behind the against confidential communications a defendant ensue from use of as follows: ultimately Knowing possibility may be of the that his counsel re- him, may quired testily against a defendant decide that counsel damaging concerning most information cannot be trusted case; effectiveness, challenge may his or he decide not counsel’s ability at a fearing to mount a successful defense second trial that his admissibility fatally of his communica- has undermined been requiring prior The fundamental unfairness tions to counsel. ingly, we held that client confidences an by attorney revealed during challenge an ineffectiveness not be may subsequently against used the client: hold that policy inherent in the legislative recogni-

[W]e judicial tion and enforcement of the attorney-client privi- it lege, as implicates right defendant’s exercise of the the effective assistance of counsel and freedom from self-incrimination, compelled restricts the use as as the well scope permitted disclosures. attorney may Just as an respond allegations of by disclosing ineffectiveness client confidences unrelated to such allegations, so the client confi- dences properly by disclosed an attorney an ineffective- ness hearing may imported not be into client’s subse- quent trial on charges. criminal The trial court’s decision to the in contrary present case error. was II, added). Chmiel 738 A.2d at 424 (emphasis II,

Based Chmiel Attorney Kennedy’s testimony regarding confidential communications with Appellant were not to imported be into Appellant’s court, third trial. The trial however, allowed the prosecutor to impeach Appellant with information obtained from this testimony. the trial Although court required the prosecutor to any avoid reference to the attorney, fact remains that the source of the information the testimony of Attorney Kennedy, revealed at PCHA in hearing connection charge inef fective assistance of counsel. The trial court’s effort to sani tize the cross-examination by removing the reference to the attorney specifically inadequate to comply with the hold ing II, of our Court Chmiel and Appellant has demonstrat ed an abuse of discretion in regard. satisfied, We are however, that the error this regard was harmless.

Mere error in the abstract is not sufficient to warrant a Linkowski, retrial. Commonwealth v. 363 Pa. defendant options choose either of those is illustrated present case: the situation that such a choice seeks to avoid—the prior admission at a second trial of evidentiary hearing counsel's testimony precisely prior occurred because counsel was shown —has to have been ineffective. II,

Chmiel 738 A.2d at 423. Butts, (1950); v. Commonwealth find though Even we that our violated, II must

holding in has been conclude Chmiel we harmless reasonable doubt. An error beyond error was court appellate will be deemed harmless concludes where the error could not have beyond a reasonable doubt Mitchell, to the contributed verdict. Commonwealth Rivera, 202, (2003); 258, Pa. A.2d 214 839 Commonwealth v. (2001). 131, 289, If there is a 565 Pa. reasonable verdict, have contributed to the possibility may that error Mitchell, it 214. The of is not harmless. A.2d at burden that the rests establishing upon error was harmless Com- 391, Story, v. 476 Pa. 383 A.2d monwealth. Commonwealth (1978); 438, Haight, 162 n. 11 v. 514 Pa. Commonwealth (1987). 1199, 1200 525 A.2d noted, alter- previously

As harmless error exists three error the de- prejudice native scenarios: where the did minimis, erroneously de prejudice fendant or was of other merely admitted evidence was cumulative untainted substantially erroneously similar to the evidence which was evidence, or admitted and uncontra- properly admitted of guilt overwhelming preju- dicted so evidence was insignificant by comparison dicial effect of the error sowas that could not have the error contributed the verdict. (2004), Smith, Commonwealth v. 861 A.2d 892 Robinson, Commonwealth Pa. of these a conclusion Any findings support three will

of error. harmless falls the first alterna- clearly

We find that case within tive, that us to conclusion the committed error was leading prosecutor the error Specifically, harmless. caused when if he asked he had told that at the Appellant anyone ever was on the did not night prejudice Lunario home of murders or, did, if it de minimis. In Appellant, prejudice such was response improper question, Appellant maintained 9/5/2002, N.T., anyone.” he had said that to at 6. The “never denial, past Appellant’s line of did not so questioning proceed produced. no harmful evidence There was no further was exploration questioning this line or improper exploitation Attorney fact, answer, In Kennedy’s testimony. denial, which was the “evidence” only improperly was admit- ted.

Thus, we conclude the error created this improper because query any prejudice Appellant, was harmless if minimis, insignificant and de all, was and could not have to the contributed verdict.

C. Post-Arrest Statement Appellant argues next court trial erred and its by allowing discretion the prosecutor abused to utilize statement, Appellant’s post-arrest, post -Miranda which was given to his prior right invocation his self-incrimina against tion. arrest,

At the time of his properly advised his to remain silent rights legal and to representation pursu- Miranda, ant that he indicated understood those N.T., 8/28/2002, rights. at 169. Trooper Ap- Gaetano asked pellant you “where Tuesday were last night,” answered that he home watching television with his wife. Id. at 173. further Upon questioning regarding his where- abouts, Appellant indicated “I don’t think I better talk about 407, that.”21 Dkt. No. 1. Entry at trial, the prosecutor At to moved introduce evidence incriminating statements made after Appellant he had further, to things declined discuss that maintaining that remark he not talk better about that not an did constitute assertion of a constitutional under right the standard articulat- States, ed Davis v. United 512 U.S. S.Ct. (1994) (holding

L.Ed.2d that if a suspect effectively waives his to right counsel after receiving Miranda warnings, law him, enforcement are question officers free to but if the 28, Appellant September 21. was on Wednesday. Ap- arrested pellant Trooper avers that Gaetano first asked where him he "last was 27, 1983, Tuesday," interpreted which September he mean to responded watching that he home was television his Appel- wife. Trooper lant maintains that then Gaetano asked him where he onwas 20, 1983, previous night, Tuesday meaning September at which point right he invoked his remain silent. interview, he during at time any counsel suspect requests has lawyer until a been questioning to further subject is conversation). reinitiates suspect or the himself made available motion restricted rejected prosecutor’s trial court that only into those statements introducing evidence him his of his after waiver Trooper made Gaetano Appellant terminating the before his statement rights but constitutional discussion. testified as Gaetano follows:

Accordingly, Trooper his Miranda [of the defendant was warned Q. After questions? him if he answer some you did ask would rights] I back Yes, sitting in the state cruiser was police A. he answering I if mind him. And asked would seat with for me. questions some response? his

Q. What was Sure, not. why A. following were question, ask him ‘where

Q. you Did Tuesday night?’ last you Yes,

A. I did. answer?

Q. What was his my Home television with wife. watching A. cross-examination, N.T., 8/28/2002, Trooper Gaeta- 173. On as- possibility Appellant about the questioned no was Tuesday Sep- Trooper referring Gaetano was sumed he Tuesday September instead of when tember 27 N.T., Tuesday he been “last night.” where had asked 8/29/2002, that when Trooper admitted at 116-19. Gaetano wife, he his Trooper home with answered Id. referring. he was Tuesday did not which Gaetano know been led jury on could have testimony, at 120. Based his where- concerning answered to believe that 27, 1983, September instead of September abouts therefore, subsequent to introduce the prosecutor, sought another questioning Trooper in which Gaetano asked line clarify Tuesday, to his answer for to allow question (at which invoked his point Appellant September silent). objection, sustaining In the defense to remain right further questioning. the trial court barred prejudiced avers that he was by admission of his statement to Trooper Gaetano because he unable to was respond adequately to the confusion by question. caused To respond adequately, Appellant that he argues would have compulsion faced to jury disclose that he exercised had right his against self-incrimination. Appellant argues that the prejudice unfair by inability caused his respond fairly question explain his confusion waiving without constitu- tionally protected right outweighed the probative value of the post-Mircroda, pre-exercise statement the trial court in failing erred to preclude all of Appellant’s post-arrest relevant, statements. See Pa.R.E. 403 (“Although evidence may be excluded if probative its value is outweighed by the danger issues, of unfair prejudice, confusion of the or mislead- ing the jury, by considerations delay, of undue waste time, or presentation evidence.”). needless of cumulative Therefore, it appears that despite the fact that the trial court ruled in Appellant’s favor the issue of his post-arrest statement, Appellant maintains that he prejudiced by was testimony relating disagree. statement. We

Appellant sought and prohibition won a of any refer ence to statements made he rights. invoked his He after cannot now challenge ruling on the basis that he was prejudiced somehow it. A in a party criminal proceeding cannot argue for a specific then, ruling and after obtaining a ruling, favorable claim that the trial judge committed an error of law in making it. See Commonwealth v. Hayes, 755 A.2d 27 (Pa.Super.2000). Appellant opportunity clarify the matter through the cross-examination of Trooper Gaetano and it not an abuse of discretion to permit Appellant’s post-Miranda statement, made prior to his invocation of the right to remain silent because relevant, the statement was not prejudicial, and did not any violate right. constitutional

D. Financial Arrangement Appellant next argues that the trial court erred and abused its discretion it when allowed former attorney, his who their testify to about charge, him on an unrelated

represented attorney-client privilege. violation agreement fee Brier, Appellant represented had Attorney attorney, This case to the Commonwealth’s It was central charges. the rape obtain to burglary the Lunario was motive for Appellant’s that end, prosecu- To this Brier. Attorney to money” pay “fast debt that testimony introduced Martin’s tor Appellant for the crime. impetus Brier was Attorney Attorney that by testifying theory refute this attempted $5000, Appellant him a fee of which Brier had quoted to demonstrate Thus, Appellant attempted partially paid. money. Over acquire for him to urgency no that there was to the Brier Attorney called objection, prosecutor defense Appel- arrangement fee of the give his version stand him retained Appellant testified Attorney lant. Brier matter” for legal him in a “to represent of 1983 spring $10,000, $5000, of remained which his fee $7000 which was 9/5/2002, asserts N.T., Appellant at 163. and unpaid. due privilege attorney-client testimony this violated he argues Appellant privilege. this that he never waived confused it misled and testimony because by this prejudiced other than argues that In this regard, the jury. there money,” needed “fast statement that Martin’s testimony Brier’s Attorney connection between was no testimony’s purpose and the of the Lunarios murder Appel- this purpose, As confusion. evidence merely sow Brier’s Attorney no link between that there was lant notes attorney re- because the and the murders representation the murders. even after unpaid mained part has been a privilege attorney-client “The colo Pennsylvania of the founding law since Pennsylvania In re Estate statutory in our law.” has been codified ny, The relevant Wood, (Pa.Super.2003). counsel shall proceeding criminal “[i]n states provision com testify to confidential permitted competent not be client, the client be him his nor shall by made to munications same, to disclose the unless in either compelled case privilege is waived the trial upon client.” Pa.C.S. § 5916. While attorney-client privilege statutorily is man- dated, it has a of requirements number that must be satisfied in order to its trigger protections. First and foremost is the rule that the privilege applies only to confidential communica- tions made the client to the by attorney connection with Rimar, Inc., services. Slater v. provision 138, legal 338 A.2d agree

We with trial court that disclosure a fee arrangement between an attorney client not and does reveal confidential communication. See Montgomery v. Mi- County Corp., (3d Cir.1999) croVote F.3d (holding that a agreement fee letter is not privileged); In re Grand Jury Investigation, (3d Cir.1980) 631 F.2d (holding attorney- client privilege protect does not arrangements fee absent strong probability that disclosure would implicate client in criminal for activity advice); which client sought legal Slusaw Hoffman, 272-73 (Pa.Super.2004) (holding production that of evidence from attorneys regarding meet- ings and telephone calls would not violate attorney-client privilege it where would not call for disclosure of confidential

communications). Because the testimony regarding the fee agreement in this case does not disclose strategy otherwise divulge information, confidential it not subject is to the attor- ney-client privilege. Appellant not has demonstrated an abuse trial court discretion in allowing Attorney Brier’s testimony. Moreover, it was relevant that certainly had sizeable outstanding debt. Appellant’s attempt to ne- gate the by relevance emphasizing the fact that his attorney remained after unpaid the murders unpersuasive: is whether he actually gave proceeds of the crime to his attorney is immaterial. The fact remains that his debt a possible sum, for motive the crime. In no we find trial court error in regard. this

E. Trooper Gaetano’s Testimony In his last claim of improperly evidence, admitted Appellant claims that the trial court erred in permitting, it hearsay. because was Trooper testimony Gaetano’s

part, about the prosecutor Trooper testify offered Gaetano investigation investigation course of the homicide how objected Appellant. to focus on Defense counsel came hearsay testimony but trial court allowed grounds, of the and issued investigation the “course of conduct” show to the cautionary jury: instruction following rule, hearsay to the one which deals exceptions There are officers. police police sometimes if a hypothetical provide A we is someone run driving up officer is down the street has guy just six five red-headed robbed say his car and ‘a foot car,’ in a now the gas away green station drove a six five looking takes off foot red-headed officer police being ... it’s offered to driving a car guy green actually being said that. It’s establish the witness why police upon receipt officer of this explain offered to for a car goes looking green being information out now principle man. That same would driven red-headed here, [Trooper testifying that is that is Gaetano] and apply upon receipt of certain information one individual why as out focused on another investigation ruled being purpose. offered for that limited individual. It’s 8/28/2002, N.T., at 158-59. is an out-of-court statement offered to

Hearsay in the the truth of matter asserted statement. prove Puksar, 358, 219, 559 Pa. 225 v. 740 A.2d Commonwealth (1999). admitting hearsay evidence stems against The rule unreliability, its the declarant cannot presumed from because of the statement. Com challenged regarding accuracy be 792, (1992). Rush, 498, 529 Pa. 605 monwealth v. A.2d 795 is that certain out-of-court statements But it well established police conduct are admissible explain offered to the course not for the truth of the matters they because are offered police upon but rather show information which asserted Jones, 442, 746, 540 Pa. 658 A.2d acted. v. Commonwealth Yates, (1995); 373, v. Commonwealth 531 Pa. 751 Palsa, 113, (1992); 521 Pa. 555 543 Commonwealth Cruz, (1989); A.2d Commonwealth v. court,

A.2d trial in exercising discre statements, tion over the admission of such must balance the prosecution’s any need for statements against prejudice Jones, Yates, 751; therefrom. arising See 658 A.2d at 543-44; Palsa, A.2d at that the

Appellant argues leading up course of conduct value, is his arrest irrelevant or has little probative trial court should not have it danger admitted because jury would consider it for its truth. He that the avers purpose sole for the of the presentation testimony was not to conduct, course of prove but rather to Trooper allow Gaetano to confirm and bolster police regarding Martin’s statement to In Appellant’s confession. of his support argument, Appellant Paisa, relies on in which this Court held that not out-of- every court statement having bearing upon con- subsequent police because, duct should be admitted despite instruc- cautionary tions, great there is risk that certain types of statements will be jury considered as substantive evidence of Id. guilt. at 810. We therefore held that the statement of an individual identifying defendant as the buyer marijuana was inadmis- sible explain subsequent police conduct. Id. We noted the need for weighing dangers of hearsay testimony against the need for evidence to explain why police pursued given action, course of and found that this balancing process lies in court, the sound discretion trial upheld which will be appeal unless there has been an abuse of discretion. Id. at here, Paisa, 811. Appellant contends that as in the “state- go beyond ments reasonably what is necessary explain conduct,” police the boundary such within which evidence is admissible was exceeded. Id. disagree. We Jones,

We find this factually case similar to 658 A.2d at 749. Jones, In defendant had the adequacy attacked of the investi- gation, alleging that police ignored facts and evidence and to failed adequately potential interview witnesses. Id. at 751. attack, Because of this police we found admissible a officer’s testimony that provided jury a complete picture with the police investigation. testimony provided The the jury with chronolog- police pursued,

all of the rumors and leads that investigation of the to information ically progress related individuals, including testifying a wit- received from various this to show testimony ness. We found that was offered not explain but to conduct. police the truth the matters stated Further, testimony because proper Id. at 751. we found this in the testi- merely it matters witness’ own repeated covered Hence, Id. not case statements made mony. it was where indirectly not testify a third did were introduced by party who testimony. through police testimony Trooper

A review of the reveals Gaetano he had from Martin recount- referred taken statements steps investigation ed the taken in the and the information testimony limited to that accumulated. nature of the was provided jury the course conduct it because and did complete picture investigation go beyond of the this reasonably explain conduct. We necessary what was testimony trial court that agree with the the course-of-conduct particularly appropriate because defense counsel investigation of the and its focus adequacy police attacked the Mr. upon Appellant rather than Martin Buffton. See and/or Jones, Appellant’s challenge compe- at 751. to the the door for investigation opened prosecution tency the course of the provide testimony explaining extensive Further, investigation. Troop- focuses on although er of Martin’s re- description police Gaetano’s statements Martin, Appellant told we believe that because garding what his Martin also about conversation with Appellant testified case, this like police, his reiteration of conversation this Jones, is not a case where the out-of-court statement was N.T., 8/26/2002, at testify. made that did not 30- party 40; Jones, Trooper testimony see 658 A.2d Gaetano’s of the admit- regarding investigation properly the course instruction, the trial light cautionary ted. Especially testimony. its in permitting court did not abuse discretion Stokes, Pa. See Commonwealth (“A (2003) instruc- jury presumed is to follow court’s tions.”). of Preclusion Evidence

IV. argues pre that the trial court improperly from questioning regarding cluded defense counsel Martin that he burglary previously committing admitted Mr. with Buffton, for Appellant sought which he never convicted.22 question regarding Martin Mr. Buffton their partic ipation in this other burglary, arguing burglary committing demonstrated that both men capable were of instant crime. The trial request court denied this because neither Martin nor Mr. had Buffton ever been of convicted this offense. now that the argues purpose for first, presentation prior of burglary was four-fold: motive, Mr. demonstrate Martin and Buffton had the intent, plan, and preparation, knowledge committing they burglary because had in the engaged prior burglary second, together; call question credibility into of Martin and Mr. Buffton to the extent in they engaged before; third, activity criminal to establish that nether had crime; fourth, been charged this prior to show Mr. Buffton’s criminal propensity deny culpability even when Martin admitted it. no

We find error in the trial court’s of exclusion this evidence. prior The admission of bad acts is within the of discretion court trial and will only be reversed upon of showing Simmons, abuse of discretion. Commonwealth v. (1995). 541 Pa. 662 A.2d 621 It ais long-standing in this principle Commonwealth that of evidence a distinct crime, except special circumstances, under is inadmissible. Morris, Commonwealth v. use Permissible of evidence other crimes is ad 404(b), states,

dressed in Pa.R.E. which of other “[e]vidence crimes, wrongs, or acts is not admissible to the charac prove ter of a person order to action in conformity show there- trial, Prior first preliminary Martin testified at a hearing that he presence had advised Mr. Buffton of money in a gave West home in Scranton. After Martin Mr. Buffton the address of home, burglarized gave Mr. $40. Buffton it and Martin Mr. Buffton burglary. denied involvement Neither Martin nor Mr. Buffton charged burglary. were or convicted of this “[ejvidence crimes, wrongs, or acts bemay of other

with” but motive, proof opportu- for other such as purposes, admitted intent, knowledge, identity absence nity, preparation, plan, veracity a wit- Additionally, or accident.” mistake not by prior arrests which have may impeached be ness Katchmer, 461, 453 v. Pa. led to convictions. Commonwealth Jackson, Pa. 591, (1973); v. 475 309 A.2d 593 Commonwealth (1977).23 608(b) 438, the 604, precludes 439 Pa.R.E. of misconduct to attack a of instances specific admission 609(a) re- for truthfulness Pa.R.E. witness’ character while or dishonesty of a crime involving an actual conviction quires credibility for a to be in order witness’s false statement the crime. Because there no with evidence of attacked conviction, of barred to properly admission this evidence was credibility the of the witness. challenge Moreover, to Rule 404 allows the introduction the comment motive, intent, wrongs prove opportunity, crimes or other identity, or absence mistake plan, knowledge, preparation, if their only probative outweighs poten- or accident value 404, cmt; Morris, 425 A.2d 715. tial Pa.R.E. prejudice. Here, impeach defense Martin trial court allowed 608(b) of their under Pa.R.E. with evidence and Mr. Buffton offenses, thus affording for arson-related 1985 convictions credibility. to attack the witnesses’ ample opportunity defense evidence of this other does not demonstrate how permissible prior bad would fall within uses burglary 404(b)(2), post-sentence in his mo- although under Rule acts that the would have “shown argued burglary tion he evidence motive, intent, preparation, had the both these two individuals they a since both did a plan knowledge doing burglary Dkt. No. at Entry short time earlier.” burglary similar to introduce argument, Appellant sought 32. Based on this repeatedly this has as follows: 23. The rationale for rule been stated "[Tjhere a mere accusa- is a vast difference between a conviction and permitted inquiry An as to mere arrest or indictment is tion. guilt, an or an indictment not establish because arrest does merely reception of reception of evidence would constitute the such Katchmer, guilt.” somebody's hearsay assertion of witness' 593; (Chadbourn rev.1970). 980(a) Wigmore, § Evidence A.2d at therewith,” conformity evidence to “show an action in 404(b)(1). purpose expressly prohibited by Pa.R.E. It was within the trial court’s discretion to determine that the proba- uncharged tive value burglary outweighed by potential prejudice, issues, for unfair of the confusion misleading jury. properly trial court excluded it.

V. Phase Penalty A. Charge Simmons Citing United States Court decision Supreme Carolina, in Simmons South U.S. S.Ct. (1994), 129 L.Ed.2d 133 Appellant contends that the trial court include, erred refusing its to the at the charge jury penalty phase, an instruction that Appellant ineligi would be ble for if parole he should be life imprisonment.24 sentenced to A defendant is entitled to such an upon request instruction where the prosecution placed has dangerousness his future issue. See Commonwealth v. Spotz, 1280, 1291 Appellant argues that the Commonwealth placed his future dangerousness at issue through penalty- its phase argument.

In anticipation of the penalty phase, filed a mo- Appellant tion in limine to seeking prosecutor bar the from arguing his dangerousness. future Relying on Commonwealth v. Trivig- no, (2000) 561 Pa. 750 A.2d 243 (Opinion Announcing the Court), Judgment the the trial court concluded that the prosecution was entitled to argue Appellant’s danger- future subject ousness jury to a instruction to pursuant Simmons.25 Simmons, life,” instruction, 24. A or jury “life means directs the that a Simmons, imprisonment permit sentence of life parole. does not U.S. 114 S.Ct. 2187. Trivigno, Opinion In the lead stated: We required now hold that when a Simmons instruction is because prosecution argued dangerousness, the has the defendant's future the jury trial court ... should inform the that a life sentence means that a eligible parole, defendant is not for but that the Governor has the power grant to a commutation of a sentence of or if life death based following public the recommendation of the Board of Pardons a Further, hearing. relay any the trial court should available statistical phase, provide the trial court declined to penalty After Simmons instruction it found that the Commonwealth because intentionally referring Appellant’s danger- to future avoided Simmons specifically request did not ousness charged After delibera- jury instruction. was but before tions, the trial court the prosecutor asked and defense counsel additions, objections, they any corrections whether they and both indicated that did not. concerning charge, deliberations, to day jury the second asked be On penalty on relevant criteria under the death statute. recharged instruction, Simmons counsel then which requested Defense had specifi- the trial court denied because Commonwealth Appellant’s dangerousness. the issue of future cally avoided Simmons no instruction Consequently, provided jury. to the absence of a Sim object not

Because did mons jury charged, instruction the time the first that he argues trial court found and the Commonwealth has See issue with to the instructions. any regard waived court’s Dougherty, Commonwealth (2004) (“In objection, contemporaneous the absence of a review”). waiver, subject Despite finding claim is not prosecutor court also found that the did not raise the trial dangerousness. future issue First, reasons against finding Ap- Several militate waiver. in a appeal it motion pellant preserved by raising issue limine Second, prior phase. when defense penalty raised the on the second of deliberations and day counsel issue instruction, a Simmons failed requested prosecutor it prior that he the issue argue raising waived response most in Finally, compellingly, deliberations. day Simmons request defense counsel’s on the second deliberations, request, that replied deny trial court “I’ll request.” that issue that you’ve preserved making but N.T., 9/10/2002, Nevertheless, the trial agree we relating percentage of that have information to the life sentences been years. within the several commuted last

Trivigno, A.2d at 750 255-56. that a court Simmons instruction not warranted based the prosecutor’s arguments.

It undisputed prosecutor is never used the words “future As dangerousness.” however, we recognized, have a precise absence of phrase simply “[t]he cannot overcome the effect of statements,” if prosecutor’s [a] that effect towas inject the dangerousness issue of future into jury’s deliber- in Chandler, ations the penalty phase. Commonwealth v. (1998). Pa. In this regard, jury “[a] hearing evidence of a defendant’s demonstrated propensity reasonably violence will conclude that he presents a risk of ” behavior, violent whether locked up free.... Kelly Carolina, 246, 253-54, South U.S. 122 S.Ct.

L.Ed.2d 670 of dangerous “Evidence ‘character’ may dangerousness show ‘characteristic’ future ...” Id. at S.Ct. 726.

During the penalty phase, the prosecutor argued “cer- tain just realm, killers are so beyond the so out of bounds that there’s only N.T., one solution-and that solution is death.” 9/9/2002, at 116-17. When discussing idea that Appellant did not kill have to three people order to obtain money, the prosecutor argued that Appellant “thirsted after the bliss of N.T., 9/9/2002, the knife.” at 122-23. The prosecutor also described as “abysmal,” “deprav[ed],” “cold[ ] heart,” which, argues, asked the jury infer his dangerousness future as these aspects were as part asserted of Appellant’s character. prosecutor Commonwealth asserts that the was careful

not to broach the issue Appellant’s future dangerousness, intentionally avoiding any subject. mention of the When context, considered the Commonwealth argues pointed words and out passages by Appellant portray do not him an ongoing as danger public and were within the bounds oratorical actions, flare. The prosecutor’s argues Commonwealth, merely served to demonstrate that three fell murders within the category penalty- death appropriate crimes. agree. We

608 case, sentencing phase capital a a

“During in arguing be afforded reasonable latitude his must prosecutor flair in may employ and he oratorical jury to the position Stokes, A.2d penalty.” in of the death 839 at arguing favor (internal omitted). penalty phase, citations “[A]t 231-32 no longer of innocence is presumption applicable, where in greater presenting even latitude prosecutor permitted is 12, Washington, v. 549 Pa. 700 argument.” Commonwealth (1997). 400, Moreover, in 414 order evaluate whether A.2d look at the context in improper, the comments were we must Jones, 464, v. 542 Pa. they were made. Commonwealth which 826, 491, (1995), denied, 519 117 S.Ct. A.2d 514 cert. U.S. 668 89, a relatively 136 L.Ed.2d 45 We note this is stringent against standard which must labor. Com Hall, 269, 190, (1997); v. Pa. 549 701 198 monwealth LaCava, 160, 221, Commonwealth 231(1995).

In comments determine analyzing prosecutor’s they dangerousness, guided future we are implicated whether 246, in 122 Supreme Kelly, Court decision 534 U.S. There, 726, Supreme 151 670. Court found S.Ct. L.Ed.2d implicated prosecutor was when dangerousness that future in jury his that the would “never lives expressed hope [their] thirty ... some feet experience [b]eing away have again Id. at person Kelly. from such as” S.Ct. Further, “to serial compared Kelly a notorious prosecutor ” killer, him ‘butcher.’ ‘dangerous’ ‘bloody’ variously calling that the character- Supreme prosecutor’s Id. The Court found butchery arguments dangerousness, of future izations were prosecutor’s in the context of the analyzed when especially “more than a serial Kelly frightening submissions that will be murderers.” Id. killer” and that “murderers Kelly, the here jury Unlike Simmons and is a petitioner predator to infer “that vicious who invited community.” Kelly, threat to pose continuing would Simmons, at quoting 122 S.Ct. U.S. U.S. (O’Connor, J., judgment). in A concurring S.Ct. that the state- review of the record demonstrates thorough limited to the question ments were considerations involved determining appropri- whether death sentence was the punishment murdering siblings. ate the Lunario For instance, the prosecutor penalty noted that the death statute for like that people was “written and because defendant (indicating), people absolutely right who have forfeited their to us, among by just remain actions that are so violent people and so their despicable abysmal they right and so that forfeit N.T., 9/9/02, to life.” at 116. He Appellant’s then described actions to demonstrate that the three murders constituted crimes, death-penalty that appropriate specifically stating Vic- heart, tor’s murder demonstrates “that type coldness that tells that he death.” depravity you deserves These statements, context, in proper commentary viewed were Appellant’s appropriate predicate crimes as an for the death “There is penalty. nothing improper prosecutor arguing in the appropriateness of the death penalty because that is the only jury issue before the at the penalty phase of the trial.” Stokes, Dennis, 839 A.2d (quoting at 233 v. Commonwealth (1998)). 715 A.2d

Here, unlike in Kelly, prosecutor’s closing argument exclusively focused on the facts surrounding the murder of the Lunario siblings speculate did not about characteristics in inherent that implied future dangerousness. part argument of the where the prosecutor referred tense, “bliss of the knife” in speaks the past focusing on the murder, motive and did not draw about conclusions Appellant’s inherent characteristics:

Was it for Think money? about the weight. Did he have sick, to kill those old people, defenseless people old some? Did he have to kill them? 10, 11, Did he have to them stab 12 times? What weight you give do that? He needed money. He couldn’t steal a car? He up couldn’t stick convenience store? go He had to in and butcher three old people? weight What by is added that? he kill Or did enjoyed because he killing? I getting

When was for this ready case and before we and, came here I up reading obviously, book I time, I in read point into this case well I book that another quoting book that was something it down. got I’ve write appropriate this is so thought Thus speaks I read was: I and what And what wrote rob, He murder? wanted this criminal Why did judge. blood, He robbery. he so wanted say you but I unto think what you of the knife. When after the bliss thirsted circumstance, If he think. give aggravating weight people? he to kill three did have money, why, why wanted not discuss Thus, prosecutor did Kelly, in contrast 254-55, Kelly, U.S. for violence. See any propensity argument, context of the entire 726. Viewed S.Ct. flair; the more than oratorical “nothing these comments were criminal the evidence of summarized prosecutor evidence, jury should from that acts and argued, Williams, sentence.” See Commonwealth impose a death Pa. com the Further, prosecutor’s takes issue with Appellant history the support submitted the evidence regarding ments circumstance, specifical an aggravating convictions as prior of prior rape of the of the nature description the violent ly disagree We Appellant committed. cir of finding aggravating arguments support

prosecutor’s dangerousness. future implicated cumstances regard consistently that evidence recognized has This Court or conduct does violent convictions ing past a defendant’s dangerousness. her future Com the issue of his or implicate 403, 435, Pa. 832 A.2d 417 574 Champney, monwealth v. denied, 939, 2906, 159 L.Ed.2d (2003), 124 S.Ct. 542 U.S. cert. 44, 286, A.2d (2004); 551 Pa. 710 May, v. 816 Commonwealth 1078, 818, denied, 119 142 (1998), 525 S.Ct. 47 cert. U.S. (1999). in this case argument The prosecutor’s L.Ed.2d 676 dangerousness future place appellant’s was insufficient 378, Pa. A.2d Rompilla, v. 554 721 issue. See Commonwealth (1998) not at issue 786, dangerousness (finding future 795 circumstance that aggravating argued when Commonwealth involving felony of convictions history appellant significant force), Rom- grounds by, on other or threat of overruled use

611 Beard, 374, pilla 2456, v. 545 U.S. S.Ct. 162 360 125 L.Ed.2d (2005); 331, see King, also Commonwealth v. 554 Pa. 721 763, denied, (1998), cert. 528 U.S. 120 S.Ct. (2000); Therefore, May, 710 A.2d at

L.Ed.2d because argument the Commonwealth’s did not implicate Appellant’s dangerousness, future Simmons instruction was not war Fletcher, ranted. Commonwealth B. Assistant District Attorney Testimony William Fisher’s

In his penalty phase second argument, Appellant asserts the trial court allowing testimony erred of (ADA Fisher) Attorney Assistant District William Fisher re Appellant’s prior garding rape conviction as such testimony hearsay, inflammatory, prejudicial. The Common wealth sought Fisher, ADA testimony prosecuted who rape, support a finding aggravating circumstance that “the has significant history defendant felony involving convictions use threat violence to the 9711(d)(9). person.” § Pa.C.S. Defense counsel filed a conviction, motion in prior limine to bar evidence including testimony ADA Fisher. After reviewing testimony provided by ADA Fisher at Appellant’s 1995 mur trial, der the trial court denied the motion in limine. Because father, victim her rape who had also testified at trial, were deceased by trial, the time of the 2002 trial court only reasoned evidence that be could presented by the Commonwealth with to the facts respect surrounding the conviction rape ADA Fisher’s testimony.

ADA Fisher testified that while rape driving victim was home from work after midnight Appellant forced her off the road an vehicle, into embankment. Once victim exited her Appellant punched her the face and disrobed her. After he her, was to or vaginally rape Appellant unable anally further beat victim perform directed her to oral sex on him. The protested victim that her teeth loose were from the beating, to Appellant forced her her tooth pull out and oral perform sex on him. The ADA complied. victim Fisher 612 Appellant forced victim into rape

testified that after car, gun he his from his going her and told her was retrieve she thing truck and that the last would see was pick-up Appellant her walked to his coming out of head. As bullet truck, flagged of car down a jumped the victim out her N.T., 9/9/2002, motorist, at help her. passing stopped who 26-28. be if the only jury

A death sentence will reversed and, therefore, unsupported improper aggravating relied on an Jones, phase its rendering penalty circumstance verdict. Williams, 537 519; at v. Pa. 640 668 A.2d Commonwealth 1251, 1263 of whether ADA Fisher’s Regardless A.2d or hearsay, inflammatory, prejudicial, we find testimony was claim is not entitled relief this because Appellant ADA regard clearly Despite error in that harmless. any was find an did not as testimony, jury aggravating Fisher’s had Appellant significant history felony circumstance that 42 involving convictions the use threat of violence. See 9711(d)(9). as a contrary, jury § To the found Pa.C.S. no his Appellant significant circumstance that mitigating 9711(e)(1) § criminal Pa.C.S. tory convictions. See prior (1) shall include the (“Mitigating following: circumstances prior has criminal convic significant history defendant no Therefore, ....”) cannot that he tions demonstrate any relating testimony. error prejudiced by alleged was (1986) v. Christy, Commonwealth pursuant that the erroneous admission evidence (finding 9711(d)(9) the jury § because prejudicial Pa.C.S. factor); Jones, not find the aggravating did (“Even if we find Trooper hearsay, Ansel’s summarization jury its harmless error since the did admission constitutes circumstance.”). this aggravating not find the existence of of Trial VI. Ineffective Assistance Counsel of coun- raises six claims ineffective assistance claims, can of those sel. Before we address merits however, first those claims are we must determine whether Grant, Pa. In ripe disposition. Commonwealth

613 (2002), A.2d held 813 726 that defendants should reserve we of until claims ineffective assistance trial counsel collateral thereafter, Shortly this Court proceedings. review decided Bomar, 426, (2003), v. 573 Pa. 826 A.2d 831 Commonwealth denied, 1115, 1053, cert. 124 U.S. S.Ct. 157 L.Ed.2d 906 (2004). Although Bomar was a case on direct at capital appeal Grant, the time we this decided Court ruled Grant would Bomar, apply claims of where counsel ineffectiveness properly preserved “were raised in the trial court.” 826 because, Bomar, A.2d at 853. in We reached conclusion post-sentence raised in appellant ineffectiveness claims mo tions, the trial evidentiary court conducted a hearings series raised, on the claims and addressed their merits in its opinion. 839, Thus, Id. 853-54. the concerns we articulated in ability develop Grant —the of the defendant to his ineffective ability ness claims and reviewing court to consider them —were not implicated Bomar. Bomar,

Pursuant it is us appropriate for to decide the of Appellant’s merits ineffective assistance of counsel claims. trial, After Appellant’s new counsel an post- filed amended sentence motion alleging ineffective assistance of trial counsel. The trial court held evidentiary an on the hearing claims and disposed Therefore, of them in opinion. its because there was full consideration below, of Appellant’s ineffectiveness claims deem we these be proper pursuant claims the narrow exception to the rule Therefore, in Bomar. Grant articulated proceed we to address claims.

To obtain relief on a claim of ineffective assistance counsel, must show that there is merit to the claim; underlying counsel had no reasonable basis for his conduct; course of is finally, that there a reasonable probability that but for act or in question, omission outcome of the proceeding would have been different.26 Com Fletcher, monwealth 266, 261, v. Pa. 273-74 (2000); v. Douglas, Commonwealth 537 Pa. 645 A.2d three-step Pennsylvania merely 26. The test used subdivides Strick- performance prong requirements land's into the demonstrating two merit the lack of a reasonable basis. Pierce, (1994); Commonwealth reviewing particular claim of ineffec any In tiveness, prongs need not determine the first two we whether met if record that Appellant of this standard are shows v. prejudice Travag has Commonwealth prong. not met 352, (1995), lia, 108, cert. denied 516 U.S. 541 Pa. 661 A.2d 357 (1996). 1121, 931, 858 The burden of 116 S.Ct. 133 L.Ed.2d Appellant. ineffectiveness rests Commonwealth proving with 293, (1996). Wilson, 429, To a Pa. 298 sustain v. 543 672 A.2d ineffectiveness, Appellant prove claim must the strate no counsel so unreasonable that gy by trial “was employed have course of competent lawyer chosen that conduct.” would Williams, at 1265. Trial counsel not be deemed 640 A.2d will claim. Common failing pursue for to a meritless ineffective 293, (1999); 233, Pursell, Pa. 724 304 wealth v. 555 A.2d Rollins, 335, 744, A.2d 748 Commonwealth v. (1990). mind, Appel- in turn to each of background

With this we lant’s of ineffective assistance of counsel. claims

A. Kloiber Instruction claim, that trial counsel Appellant In his first asserts to in failing request ineffective for Kloiber instruction Mrs. Sinkevich. regard to the identification his vehicle Kloiber, Pa. 106 A.2d 820 See Commonwealth v. denied, 112, 99 (1954), 75 S.Ct. L.Ed. 688 cert. 348 U.S. Kloiber, (1954). not in a Pursuant to where witness was clearly, previously the assailant or had position to observe defendant, identify failed to court must instruct testimony cau jury to receive the witness’ identification with 826-27; Pa. Young, tion. at See Commonwealth v. Id. 166, 181 748 A.2d to fails there is no merit the under- argument

This because has lying any claim. not identified instance to the charge applicable a Kloiber has been found be which Moreover, object.27 for the identification an inanimate noted, applied aptly trial has Kloiber 27. As the trial court one court police principles of a identification to a officer’s aerial identification rejected same reasons Appellant’s III, we claim in A Section opinion, this the identification criteria for suspects human applicable are not identification ob- witness of inanimate Thus, jects. legal there is no for basis a Kloiber applying identification, vehicle instruction agree we with the trial court that trial counsel was not for failing ineffective Rollins, pursue 748; meritless claim. see also Bormack, (Pa.Su- Commonwealth per.2003).

B. Trooper Gaetano’s Testimony ineffectiveness, In his second claim of Appellant avers trial counsel was failing object ineffective to the Trooper testimony hearsay Gaetano’s grounds. As discussed connection claim of trial court error for allowing Trooper testimony, Gaetano’s which be- was improperly hearsay, did, lieves admitted trial counsel in fact, lodge a hearsay objection N.T., to this testimony. 8/28/2002, at objection 158. The trial court overruled the but the provided with a jury cautionary instruction indicating the purpose limited the testimony explain to the course of in police focusing conduct the investigation on Appel- lant. Trial counsel cannot be found failing ineffective for to do he, fact, Further, in something that did. as have already we agreed with the trial court was testimony properly admitted, Appellant’s claim in this regard lacks merit.

C. Cross-Examination of Julie Maconeghy Chmiel next

Appellant that the argues prosecutor engaged prosecutorial during misconduct of Appel examination ex-wife, lant’s Julie Chmiel trial Maconeghy, and that counsel was failing object ineffective for to to this examination. In connection trial, with the 1995 murder Mrs. Chmiel Macone- speeding police helicopter. vehicle from a See Commonwealth v. La 28, (C.P.

Paglia, 1981). 22 Pa.D. C.3d Superior & 32-34 Chester Court, however, application overturned this of Kloiber. Commonwealth Baslick, 671, (“To Pa.Super. (1989) v. 389 567 A.2d 673 the extent LaPaglia requires proof a decision stricter standard of in cases speeding prosecutions motor upon where vehicles are based aerial observation, overruled.”). it is

616 signed a statement husband, Mr. Maeoneghy, provided

ghy’s had told Maeoneghy that Mrs. Chmiel indicating the police to murders, Appellant of the Lunario morning him that on the that he had explained in blood and home covered returned trial, Mrs. Chmiel During in a fight. been involved home on arrived Maeoneghy testified when on him. 21, 1983, any blood she did not observe September testimony with her her attempted impeach The prosecutor trial, but from police prior statement signed husband’s to her husband had statement she made she that the explained referring Lunario murders but were to do nothing objec- an entirely. lodged a Defense counsel night different sidebar, after the trial court which requested tion nevertheless ar- the examination.28 discontinued improper, prejudicial, line questioning that this gues inadmissible, Ap- and amounted to misconduct. prosecutorial failing trial therefore counsel ineffective pellant argues disagree. We testimony. preclude not occur unless misconduct does “[P]rosecutorial to preju of the comments at issue was unavoidable effect in their minds fixed bias jurors by forming dice defendant, impeding ability thus their hostility toward true verdict.” objectively render weigh evidence Robinson, 358, 371-72, Pa. v. 877 A.2d Commonwealth (2005); v. 569 Pa. Paddy, Commonwealth Rizzuto, (2002) (citing Commonwealth trial, (2001)). a criminal both Due to the nature of their presenting must reasonable latitude sides be allowed at 316. Mrs. jury. Paddy, Upon to the cases on Appel that she observed blood Maconeghy’s Chmiel denial 21, 1983, the September prosecutor of night lant on the to her testimony her with reference impeach attempted certainly her It is statement husband. prior inconsistent sidebar, Maeoneghy that Ms. Chmiel At defense counsel indicated her did relate to the him that her statement husband not had advised pertained night rape. but to the Defense Lunario murders rather that, despite being the word instructed to use counsel was afraid examination, may inadvertently during the witness blurt it out. rape her agreed response, prosecutor terminate the examination. In scope within the of cross-examination to ask the if she witness ever made a statement inconsistent her in testimony with court. (impeachment See Pa.R.E. 613 by prior witness statement).29 Therefore, the prosecutor’s questioning during statement, cross-examination regarding prior coupled with the fact this line of questioning upon ended defense sidebar, counsel’s for a request prejudice caused no or fixed and, thus, bias in the jury, minds of the did not constitute prosecutorial misconduct. misconduct,

Because find no prosecutorial we find no we in ineffectiveness trial counsel’s in performance regard because the claim underlying lacks merit. To the contrary, trial counsel acted to affirmatively protect Appellant’s interest. record, As reflected trial objected counsel to impeaching the witness with the prior inconsistent statement and by sidebar, requesting a counsel any avoided mention of the rape. Therefore, timely objection counsel’s precipitated the discon- tinuance of the examination and claim of trial counsel ineffectiveness in this regard fails.

D. Prosecutor’s Closing Arguments Appellant next argues that trial counsel was ineffective for failing object to or a request cautionary regard- instruction ing, the prosecutor’s closing arguments. Specifically, Appel- lant faults the closing argument First, respects. two Appel- lant avers that the prosecutor improperly commented on evidence not of record. During closing arguments, defense counsel referred to Commonwealth exhibit No. de- which picted Lunarios’ kitchen table pack cigarettes on it. Defense counsel referred to prior testimony that Martin smoked “Kool” brand cigarettes and had purchased pack these cigarettes during sometime night September witnesses," 29. Rule entitled provides: "Prior statements of (a) Examining concerning prior witness inconsistent statement. A may witness be concerning prior examined inconsistent statement witness, not, made whether written or and the statement need time, not be shown or its contents disclosed to the witness at that but request the statement or contents shall be shown or disclosed to opposing counsel. Pa.R.E. 613.

618 the name the urged jury ciga-

1983. He to examine the in that left scene reasoning they rettes were at the picture, Martin, is he later another by why purchase which that during closing arguments, replied pack. prosecutor, making up story they defense their went along as Appel- or cigarettes belonged Angelina could have Victor.30 nothing lant this comment because there is in the record faults In his indicating that either smoked. Angelina Victor of improper during prosecutor’s second claim comments im- Appellant argues prosecutor that the closing argument, for of he properly credibility vouched witnesses when as that characterized defense “liars” but claimed witnesses telling Martin was truth. noted, prong

As the first ineffectiveness test is Pierce, claim A.2d In the underlying has merit. 527 973. prosecutorial during closing arguments, context of misconduct must demonstrate that there is merit to the conten- objected tion that trial counsel should have or requested to the cautionary prosecutor’s instruction due misconduct. only can do if he can prosecutor so show was, fact, Otherwise, in no engaging in misconduct. there is merit the contention of trial counsel ineffectiveness. find there is no basis for relief because there

We with remarks counsel nothing wrong prosecutor’s be failing pursue cannot faulted a meritless claim. See Pursell, Rollins, 304; A.2d In A.2d at 748. misconduct, determining prosecutor engaged whether the must in mind made keep prosecutor we that comments must be within the counsel’s examined context defense Hawkins, Pa. conduct. Commonwealth may It is settled that the prosecutor well Specifically, prosecutor stated: folks, me, you you Lights. Tell tell me if can tell that’s Kool Do cigarettes thing nothing see how small that is? It has to do Angelina’s They a smoker or Victor's a smoker. No. look fact that they Lights. picture, package at that not a see a of Kool That’s package Lights, package cigarettes. okay Kool But that’s it’s they're making up they go along. it as because N.T. at 141. 9/6/2002 fairly respond points made in the closing. defense See (“A Trivigno, 750 A.2d at 249 (plurality) remark aby prosecu tor, otherwise be improper, may if it is in fair appropriate counsel”) response argument to the of and comment defense Robinson, (citing 25, 31, United States v. 485 108 U.S. S.Ct. 23, 864, (1988)); 99 Marrero, L.Ed.2d v. Commonwealth 546 596, 1102, Moreover, Pa. 687 A.2d “prosecutorial not misconduct be found will where comments were based on the evidence inferences proper only therefrom or were Hawkins, 503; Jones, oratorical flair.” 701 A.2d at 668 A.2d at 514.

Regarding claims about the reference to smoked, the that possibility the Lunarios the trial court agreed with that nothing the suggested record the However, that victims smoked. the trial court found that not any prejudice had identified resulting from the comment. agree We this with conclusion. The of import regarding remark the cigarettes was not suggestion a that the victims smoked but rather was the idea jury that the should not get sidetracked inconsequential defense’s discussion of may Keaton, who have smoked. See Commonwealth v. (1999) Pa. 729 A.2d 538-39 (finding prosecu that the tor had made a representation factual that was sup without record, port but further holding “[although prosecutor may strayed have from slightly the evidence of record, claim [defendant’s] that this him a remark entitles meritless”). trial is new We fail see how remark the unavoidable jurors effect prejudicing the to such a degree as to cause them to form a fixed bias hostility toward defendant and prevent them from weighing the Rizzuto, objectively. 1087; Keaton, evidence See 729 A.2d at 538.

Further, regard with to trial counsel’s reasonable basis for not objecting statements, to these trial during counsel testified evidentiary hearing post-sentence motions that they did object because “the syntax caught [statement] off guard,” because it a passing [him] reference in the middle a separate argument immediately did not sound II, N.T., at 53-54. Because the objectionable. Vol. 6/12/2008 photograph have to examine the jury opportunity would an trial counsel also believed that glass, a magnifying that it right, pack “find out that were jurors would we prosecutor’s closing argument Lights,” Kool would backfire. claims that the

Regarding Appellant’s prosecutor credibility improp for the Martin while improperly vouched liars, no find merit. calling defense we likewise erly witnesses improper prosecutor express It that it is is settled credibility as of the defendant or other personal belief Koehler, Pa. v. witnesses. Commonwealth (1999). However, comment on prosecutor may Jones, credibility of witnesses. Commonwealth Simmons, 994, (2002); 541 v. 811 A.2d 1006 Commonwealth (1995). 621, Further, 211, is prosecutor Pa. 662 A.2d 639 logical force respond arguments defense allowed Koehler, 240; v. A.2d at Commonwealth vigor. 737 444, Brown, 465, If Pa. 711 A.2d defense of in credibility closing, attacked the witnesses counsel has addressing the witnesses’ may present argument prosecutor Fisher, 572 Pa. credibility. See Commonwealth v. (2002) contention that (rejecting defense prosecu for the of improperly credibility vouched prosecutor reviewing the testi prosecutor tion since “[t]he witnesses after prosecution of witnesses counsel mony [defense] several testimony, their in an effort to counter had attacked Johnson, counsel”); defense argument of Commonwealth (1991) (holding 588 A.2d stating comments defendant lied were prosecutor’s in given response nor when prejudicial neither unfair credibility relation to the comments of defense counsel evidence). witnesses, A they by the supported and when were this what oc precisely of the record reveals that is review and, claim accordingly, in the instant action war curred rants no relief. arguments defense during closing

On numerous occasions witnesses, credibility Commonwealth attacked the counsel Martin, particularly N.T., and characterized them as “liars.” 9/6/2002, 10, 27-30, 37-38, 52-53, Additionally, 66. defense argued counsel that defense being witnesses were truthful. 92-96, 98-100, Thus, Id. at the prosecutor’s statements fair were rebuttal. if they Even an expression were personal opinion, they cannot be prosecutorial characterized as misconduct unless their effect “prejudice was to the jury, forming their minds fixed bias and hostility toward defendant so they could not weigh the evidence objectively and Robinson, render a true 433, 441; verdict.” Paddy, 800 A.2d at 316. We fail to see how statement had such Further, an effect. trial regarding counsel’s reasonable basis for not objecting statements, these defense counsel testified that they object did not because they did not want to alienate jury by voicing meritless objections that would be over- N.T., 6/12/2003, ruled. Vol. II at 84-85.

Appellant has not demonstrated that the claims of trial counsel merit, ineffectiveness have or that counsel lacked a reasonable basis for any in question. conduct has argue failed to or demonstrate the reasonable probability that the outcome of the trial would have been different but for alleged therefore, errors. Appellant, has not overcome the presumption that counsel is effective these claims fail.

E. Mitigation Next, Appellant argues trial counsel ineffectiveness for failing to subpoena Appellant’s Nina, daughter, during the penalty phase in support mitigation arising from Appellant’s familial relationships.31 testified, Nina without subpoena, for her father during the 1995 trial and “really upset” by was the N.T., experience. II, Vol. at 30. In anticipation of 6/12/2002 trial, counsel met with Nina on more than one occasion to discuss with her the possibility of testifying as mitigation witness. Before the penalty phase, she indicated that she was willing 35, to testify. Id. at However, 58-59. despite making 9711(e)(8): § 31. See 42 Pa.C.S. Mitigating following: circumstances shall include the (8) Any mitigation other concerning evidence of the character and

record of the defendant and the circumstances of his offense. 622 to not to testify, the last minute she decided

arrangements at the testimony for Based on her eviden- testify Appellant. motions, thought on she had about tiary hearing post-sentence at 38. again.” it to all that Id. go through and “didn’t want this turn of surprised by Trial to being counsel testified investigator their to events, dispatch private intended to however, so testify. Appellant, pre- Nina she could retrieve so, counsel he doing them from and advised his that vented handling his the strain daughter was about how was worried on her. put pressure trial and did not want to additional the wishes, not the trial counsel did send Pursuant Nina. investigator retrieve points post-trial to his Appellant daughter’s

Now if subpoenaed, she had been she testimony indicating N.T., 6/12/2003, prevail at 39. To on a would have testified. claim trial counsel’s ineffectiveness for failure call “(1) (2) existed; witness, the Appellant prove: must witness available; (3) informed of trial counsel was witness of the or should known of existence witness have (4) existence; the witness was prepared cooperate witness’s (5) behalf; and have on appellant’s would testified Bomar, appellant.” testimony prejudiced absence of A.2d to call a particular at 856. Trial counsel’s failure witness does constitute ineffective assistance some show not without ing testimony the absent would have been benefi witness’ helpful establishing cial or asserted defense. See (1989) Durst, 504, 522 Pa. Commonwealth v. A.2d Peterkin, v. 513 A.2d 373 (citing Commonwealth (1986)). must Appellant testimony demonstrate how been uncalled witness would have beneficial under Beasley, of the case. See circumstances Commonwealth Pa. evidentiary

Based on the of the transcript hearing motions, post-sentence the trial court found that Nina not Thus, father. willing, testify her ready, available court could second prove trial found of the above test. now prong Although fourth that should argues appearance by counsel have secured her their subpoena, investigator when counsel to attempted have testify, Appellant retrieve Nina to instructed them to do not 1.2(a) so. Rule Cond. (stating See Prof. that shall lawyer case). decisions in a not abide client’s criminal We will find for acting conformity Appel- counsel ineffective Fisher, 771; lant’s instructions. See 813 A.2d at Common- Marshall, (2002) wealth v. Pa. (counsel was for failing not ineffective to a diminished pursue defense the defendant not capacity where insisted he did Further, commit the murders and was not guilty). because testify, Nina had her to no willingness indicated there was basis for trial subpoenaed. counsel have her Accordingly, this claim fails.

F. Testimony Ouligian of Dr. Appellant’s final ineffective assistance of counsel contention the testimony relates to Ouligian, Dr. a defense mitigation expert provide psychiatric called to testimony with respect the effect of Appellant’s upon abusive upbringing his emotion- al development ability to appreciate his criminality of violent trial, behavior. In for preparing witness defense counsel specifically instructed him not to refer to the fact defendant had been twice convicted and sentenced to death. Nevertheless, during questioning, Dr. Ouligian inexplicably to the referred fact that had informed him that “he N.T., 9/9/2002, was convicted and sentenced to death twice.” at 59-60. Defense counsel promptly interrupted him and asked him another question. Appellant argues that counsel was ineffective failing for Dr. prepare Ouligian adequately from mentioning refrain disclosing the fact that Appel- lant been convicted sentenced to death two prior occasions for failing request a limiting instruction.

Regarding Appellant’s argument in counsel Dr. adequately prepared trial, Ouligian the uncontested did, testimony fact, reflects that counsel advise the witness not to mention reason, the prior convictions. For whatever Further, did comply. witness trial regarding counsel’s instruction, counsel testified to a limiting to a request

failure of Trial counsel for this course conduct. reasonable basis an instruction would have drawn requesting indicated that unduly and it in testimony emphasized to the attention greater Further, trial that the minds the counsel believed jury. the of weight by may been afforded less mitigation testimony have it to of the disregard part if the court instructed jury the lawyer by to a motion strike made the who testimony due 44-45, I, N.T., him as an Vol. expert. called 6/12/2003 Therefore, trial 49; the court agree II at 79-81. we Vol. the by interrupting the action taken counsel that responsive limiting instruction was request and declining witness trial and that trial counsel had strategy, in a rational grounded promote designed Appel- basis for this conduct a reasonable claim of trial counsel ineffec- lant’s interest. last fails. tiveness Death

VII. Review of Sentence is not Appellant any concluded that entitled Having that he raises and that the evidence is relief on the claims sufficient, imposition are statute to review the required we 9711(h)(1). § We of 42 Pa.C.S. are of the sentence death. of death unless determine: to affirm the sentence we required (i) passion, preju- the product the sentence of death was factor; arbitrary or any dice or other (ii) of at least one finding fails to support evidence specified circumstance Pa.C.S. aggravating [42 9711(d)] § 9711(h)(3). §

42 Pa.C.S. no The record discloses indicia arbitrariness does passion, product that the sentence death was suggest Rather, the sentence based sufficient upon or prejudice. intentionally killed Lunario sib- Appellant evidence jury conscientiously indicates that The record lings. against circumstances32 two aggravating balanced two first, aggravating circumstances were the commission of 32. The two robbery burglary, perpetration of a see Pa.C.S. murder in the circumstances,33 mitigating and determined that the aggrava- ting circumstances outweighed mitigating circumstances. Therefore, there ground pursuant is no to vacate the sentence 9711(h)(3)(i). § to 42 Pa.C.S. of the supports jury’s

Our review record finding of the aggravating circumstances that committed Appellant the murder during perpetration felony, specifically robbery or burglary multiple murder 9711(d)(6) § convictions. See Pa.C.S.

broke into the Lunario home to steal the money he knew there, be hidden throughout house. While he brutally stabbed the three elderly resulting victims in their deaths. Accordingly, we affirm the verdict and the sentence of death.

Appellant’s judgment of sentence is affirmed.34 Chief Justice join CAPPY Justice the CASTILLE opinion.

Justice EAKIN did in the participate decision of this case.

Justice NIGRO files a concurring opinion in which Justice joins. NEWMAN

Justice SAYLOR files a concurring and dissenting opinion. NIGRO, Justice concurring.

I agree with the majority that Appellant is not entitled relief disagree but with the majority’s analysis as it relates to Appellant’s claim that the trial court erred in ruling that the 9711(d)(6) and, second,

§ multiple murder for the convictions murders Lunarios, l(d)(l 1). § of the see 42 Pa.C.S. 971 mitigating first, 33. The by jury circumstances found the were the convictions, significant absence of a history prior of criminal see 42 9711(e)(1) and, second, § Pa.C.S. mitigation" "other evidence of as a family relationships result of his upbringing, and abusive see Pa.C.S. 9711(e)(8). § (i), § 34. Pursuant Pa.C.S. prothonotary the of this court is immediately directed to transmit to the Governor’s office the file and trial, complete sentence, record sentencing hearing, imposition of the of Supreme review the Court. question about whether was allowed prosecutor on of regarding night trial the events the testimony his Lunario different from what he had maintained murders was following on for the five night months happened claim, rejecting majority In this concludes that murders. err this allowing the trial court indeed in but questioning, did disagree I there finds such error to be harmless. instance, in part error of trial court the first any no need to reach harmless error and therefore see even question. out, prior trial counsel majority points Appellant’s

As at a hearing changed testified had his PCHA story night his whereabouts on the murders regarding during second trial subsequently, Appellant’s charges, prosecutor testimony murder used chal- contention that he offered lenge Appellant’s never night the events on the the murder from different version of he presenting appeal, the one was trial. On this Court held line questioning particular prosecu- that this —and his attor- prior tor’s reference to discussions with right to the ney-violated Appellant’s effective assistance protected compelled counsel and to be self-incrimina- against Chmiel, tion. Commonwealth (“Chmiel (1999) II”). made clear that this holding We testimony prior on the fear that the “use of was based chilling on defen- counsel as this case would have effect right of their to the dants’ exercise effective assistance Id. counsel.” case,

In prosecutor again sought question Appel- the maintained story lant about whether he had a different ever Although from the one he was at trial. the trial advancing the could reference prosecutor any court concluded that attorney communications between and his Appellant prior II, violating prosecutor Chmiel the court did the without allow whether, “exclusive of question Appellant any discussions counsel,” may that he had with he had ever main- have his the the night tained version of events on murders from one he testified to at trial. Trial different had Ct. 3). Op. Entry at 79 Dkt. (quoting p. No. The trial court possibility Appellant “may noted have told [such inmates,” different version family, to] friends or fellow id. not, II court, and Chmiel did to the trial according bar questions any about made to such statements non-privileged parties. third argues here,

As Commonwealth and I agree, the middle II, road taken trial in by way court no violates Chmiel plainly driven which the concern that allowing Commonwealth to use the content of attorney-client conversa- in subsequent tions criminal compromise trial would right defendant’s By effective assistance counsel. forbid- prosecutor ding referencing from any discussions that prior had his attorney, ruling trial court’s very clearly recognized concern, below Chmiel II’s underlying my and in effectively mind removed it from In this case. end, the trial ruling court’s merely allowed the prosecutor explore someone, whether told in ever a non- privileged something setting, about the night of murders from telling was different what he the jury happened was, night. view, on that my This entirely an tool of proper impeachment.

Thus, majority, unlike the I do not believe that the trial court erred here but because the majority finds such error harmless, join be I am able to the majority the result reaches. joins.

Justice NEWMAN SAYLOR,

Justice concurring dissenting. join I Parts I and II of the majority opinion, concur in the IV, result with to Parts III regard dissent as to penalty.

I respectfully disagree with the majority’s analysis, in Part V(A) of its opinion, concerning range of evidence and argumentation implicate will a capital defendant’s future

628 determining requirement

dangerousness purposes for a under life sentence concerning meaning an instruction Carolina, 154, 2187, 129 512 U.S. 114 S.Ct. Simmons South Carolina, Kelly 534 133 In v. South U.S. L.Ed.2d (2002), 726, 151 United L.Ed.2d 670 States S.Ct. straightforward test following, Court set forth Supreme implicated or not future is dangerousness determine whether for purposes: such under is evi- dangerousness

Evidence of future Simmons future; prove in the tendency dangerousness dence with a be- merely its to that does not point disappear relevance or it other inferences be described might support cause other terms. 254,122

Id. at S.Ct. at 732. test, this acknowledging applying Rather than facts, Kelly on the majority distinguish undertakes that are on decisions of Court proceeds rely prior Majority Kelly. Compare Opinion, inconsistent plainly with 609-12, Pennsylva- 538-39 (cataloguing 585 Pa. at at precedent reflecting proposition regard- nia “evidence or not ing past a defendant’s violent convictions conduct does dangerousness”), of his or her with implicate issue future (“A jury hearing at Kelly, 534 U.S. S.Ct. at for demonstrated violence propensity evidence defendant’s he reasonably presents will conclude that a risk of violent behaviorf.]”).1 I am unable to to this sort of an accede to a decision of States Court approach Supreme United issue. a federal constitutional prosecutorial mis- majority appears also to conflate the test governing request is conduct the standard whether Simmons Opinion, required upon capital request. Majority See defendant's 609-12, However, 607-09, Pa. 889 A.2d at 538-39. whether or satisfy required is constitutional due a Simmons instruction prosecutor's requirements to with process has little do whether or not commentary proper improper, or or within or or the evidence was Rather, range advocacy of zealous or oratorical flair. outside required request proper or is on the defendant's where instruction dangerousness. implicates improper argumentation future evidence Kelly, See 534 U.S. at 122 S.Ct. at 732. view,

In my the brutal circumstances involved in the Lunar ios’ alone meet killings arguably the United States Supreme Court’s test for prevailing implication of future dangerousness as in Kelly.2 evidence, articulated tendency this which incorporated trial, into the penalty phase show Appellant’s continuing dangerousness was enhanced presentation Commonwealth’s of the factual underpinnings of violent rape aggravation at the penalty hearing, and the prosecuting deputy attorney general’s commentary concerning death aas “solution” to Appellant’s status as a “beyond killer realm,” as well repeated as his references to Appellant’s after the of the “thirst[] bliss knife” and blood lust. The majority’s attempt to direct the focus of this evidence and commentary solely to their backward-looking implications seems to me to be ineffectual in light Kelly’s explicit guidance. Kelly, 253-54, See 534 U.S. at 122 S.Ct. at 731-32 (“A jury’s hearing evidence defendant’s pro demonstrated pensity for violence reasonably will conclude that he presents [; a risk of violent ... behavior the relevance of evidence point of future dangerousness] does not disappear merely because it might other support inferences or be described in terms.”). other reasons, For these I believe that a new penalty is hearing due under prevailing United States Su preme Court authority. Notably, response dissenting opinion to a asserting that under the Kelly all, standard the proportion, evidence in a substantial if not capital future, cases will likely dangerous show a defendant to be in the Kelly majority be,” responded, "may Kelly, well see U.S. at 254 n. 122 S.Ct. at respond 732 n. that it albeit declined to definitively. that notes accepted. he or she has been states, accepted by parties, that rule all explicitly “Once chal- juror by peremptory shall be removed prospective 631(E)(1)(b). lenge.” Pa.R.Crim.P. right impartial jury A has a an defendant pursuant and Fourteenth Amendments to Sixth 1, Pennsyl § Article 9 of the United States Constitution and Oklahoma, 81, 85, 108 Ross 487 U.S. vania Constitution. (1988); 2273, 80 v. Ingber, S.Ct. 101 L.Ed.2d Commonwealth (1987). 2, 1101, 1102 516 Pa. 531 A.2d carries not impartial. of that his See Ross. showing jury burden 86, case, In a penalty 487 at 108 S.Ct. 2273. death U.S. 631(E), voir is Pa.R.Crim.P. individual dire mandated juror ways may there are provides which two which serving, indicating be stricken from where cause exists juror bias possesses cannot follow or some toward law defendant, or arbitrarily by peremptory Commonwealth process jury The of is to the challenge. selecting committed trial judge only discretion of the will be reversed sound an Common where the record indicates abuse discretion. Chambers, 96, wealth v. 546 Pa. A.2d find no support pursuant We contention that to Rule 631 the trial court has no in conducting discretion voir repeatedly dire. We have scope held voir “[t]he dire rests in the sound judge, discretion the trial whose decision will not be reversed unless is palpable error estab voir purpose lished. dire is to the empanelling ensure fair impartial jury of a capable following the instruc Robinson, of the trial tions court.” Commonwealth v. (2004) (citing Bridges, 757 (internal omitted), denied, citation cert. 535 U.S. 2306, 152 1061, (2002)); S.Ct. L.Ed.2d see also Commonwealth

Case Details

Case Name: Commonwealth v. Chmiel

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 29, 2005

Citation: 889 A.2d 501

Docket Number: 428 CAP

Court Abbreviation: Pa.