*1 minimum, this Court should remand to the Workmen’s Compensation Appeal Board for further proceedings an appellee opportunity allow to meet her enhanced burden newly enunciated proof by majority of this Court in Kachinski. Pennsylvania, Appellee,
COMMONWEALTH of CLAYTON, Appellant. Willie Supreme Court of Pennsylvania.
Argued Jan. 1987.
Decided Oct. 1987. *4 Stretton, Chester, Samuel C. appellant. West for Chief, Div., Ronald Eisenberg, Appeals McLaughlin Gaele Barthold, Cox, Dist. Deputy Marianne Atty., Philadelphia, Gen., Marion E. MacIntyre, Deputy Atty. Harrisburg, for appellee. NIX, C.J., LARSEN, FLAHERTY,
Before McDermott, hutchinson, zappala, PAPADAKOS, JJ. THE
OPINION OF COURT HUTCHINSON, Justice.
Willie Clayton directly appeals as of right1 two death sentences imposed by Philadelphia Common Pleas. Along with his two degree murder, convictions first appellant was convicted of two counts of and two robbery counts of possession of an instrument of crime. On appeal Court, before this he raises four issues that require full First, review. he contends that the admission of two bul- 9711(h)(1). 1. 42 Pa.C.S. §
lets and
testimony,
ballistics
without at least a cautionary
instruction, was reversible error
the
because
Common-
wealth could not show which of the two bullets was
by
fired
appellant.
he
Secondly,
argues that the trial court
erred
consolidating
instance,
two murder trials.
In the third
he asserts that his
process rights
due
were violated because
the trial
grant
court refused to
a
permit
continuance to
his
mother
stepfather
testify
penalty
at
phase
his
trial. Finally, he claims he is entitled to a new trial because
prosecutor
made a prejudicial statement
to the jury.2
Appellant
2.
They
raises four other issues as well.
are:
(A)
Shelton,
right
His
to a fair trial was
police
denied when Lt.
murders,
investigated
officer who
special
stated that he worked for a
basically
type
unit that "is
a career criminal
unit within the
Appellant alleges
Homicide Division." N.T. at 5.23.
that this im-
plied he was a career criminal.
(B)
process rights
His due
were violated because he was not
charged
(Summers)
1984,
with one of the two murders
until
even
though
place
July
it
Appellant argues
had taken
1980.
police department deliberately
delayed bringing charges for
tactical reasons.
(C) The trial
dismissing juror
court abused its discretion in
a
sides,
already
accepted by
though
had
not
been
both
even
the trial had
yet
Appellant
started.
contends that the trial court's refusal to
bring
juror
back into court and allow defense counsel to
question
(D)
directly
her
was reversible error.
delays experienced
jurisdiction
Excessive
carrying
in this
out
penalty
punishment.
of death rise to cruel and unusual
arguments
(A),
All of these
are without merit. As to
we fail to see
prejudiced
how
appellant.
this statement
There was no direct state-
criminal,
appellant
ment that
was a career
and it is reasonable to
assume
investigates
that an officer who
several murders committed
assigned
under similar circumstances would be
to a career criminal
unit.
(1986).
Carpenter,
See Commonwealth v.
(B)
Argument
Lovasco,
fails under United States v.
431 U.S.
(1977),
S.Ct.
Upon disagree careful we for the reasons set out Furthermore, statute, as required by below. we have made independent an review of the record for sufficiency and proportionality against imposition to ensure of the arbitrary For penalty.3 purpose, death we have secured and examined the statistical data collected the Administra- of Pennsylvania tive Office Courts and determined that the penalty imposed proportional imposed is to that in other cases.4 arguments appel-
Because nature of the raised by lant, procedural an initial examination of the facts and history helpful. this case is The relevant events took 14, place May September between 26 1980. 26, 1980, evening May
On Earl Grice was found in his apartment Quill dead above the and Scroll Bar he had in Philadelphia. owned Center Grice was found City, lying on the couch. He had died as a result of a hard contact opportunity question juror phone, ed counsel an over the stenographer. provided
this discussion was recorded
This
opportunity
question
sufficient
for defense counsel to
her. See Com-
439,
Pasco,
(1938).
monwealth v.
332 Pa.
gunshot to the wound head.5 The bullet had come from gun. a .38 caliber Ballistics tests could not identify the particular gun that fired the distorted bullet removed from pants Grice’s head. Grice’s pockets ripped had been out and an cash empty open box was found on the bedroom floor with tossed A receipts pillow about. gunshot with residue also found in apartment. Apparently, it had used to been muzzle the noise of the shot.
Evidence produced at trial showed that Grice was a known drug dealer. Evidence also showed that appellant went see Grice at his bar on evening 26,1980, of May and at 7:30 p.m. about both went upstairs into Grice’s apartment. Grice had been seen flashing around a large roll of earlier money evening. *7 30, 1980, July
On Jack Summers was found in apart- his ment Bar, above the Graduate a few blocks Quill from the and Scroll. Summers had died as a result of a gunshot wound to the head fired at range. close The bullet was from a .38 gun, caliber and could have been from the same gun which killed Grice. Both of pockets Summer’s had pulled been inside out. trial,
At it was shown that appellant had frequently visited Summers at his apartment. Summers was a known drug dealer. 26,1980,
On August the body of Terrance Dougherty was found lying face down the floor of his bedroom with a pillow over his head. Dougherty had also died from a hard contact shot to the head from gun the same that had killed Summers. This murder inwas the same general area as the other two.
An earlier trial had revealed that Dougherty was also a drug dealer, known and that appellant him.6 knew gunshot 5. A hard contact wound portion occurs when the front gun pressing against the skin when the bullet is fired. 6. No Dougherty evidence of the murder present was admitted at the trial. The one of purposes facts of this crime clarity are added for since arguments by appellant raised relies on our decision in Clayton, (1984) Commonwealth v. (plurality 14, 1980, September according On to the testimony Felder, appellant Thomas and an unidentified man came to apartment Felder’s ostensibly buy cocaine. Felder stated selling time, that he was not drugs at that but offered to them in contact put with someone who could. left They apartment go phone Felder’s to a booth. After the call made, appellant accompanied Felder back to his apart- saying ment that he had left something behind. Appellant came out of Felder’s bathroom a .38 carrying gun caliber and forced Felder to lie down on the bed. He took money pants from Felder’s pockets gold and a chain from his neck. companion He and his then bound Felder’s arms and hands. Appellant placed a pillow over his head. putHe the gun to pillow and fired. It did not go off. He again. fired This time he shot Felder in the back. Felder held his breath, pretended dead, that he was and waited for appel- lant to leave.
When back, shot him in the Felder was already a carrying bullet the stomach at the hands of a Wendell Lewis. At the hospital he had both bullets removed. Through mix-up no one identified which of the two bullets had been removed from the back. Ballistics experts were able to show that one of the two bullets was fired from the gun same that had killed Summers and Dougherty could have killed Grice.
Appellant was tried originally acquitted for the mur- der of Terrance Dougherty. Before that trial was complet- *8 ed, appellant was also charged with the Grice murder. At a jury trial for that crime in March appellant was convicted murder, of first degree robbery, and possession of opinion). appellant In charged that case was with the murder of Grice, and the Dougherty circumstances of the murder were admitted plan, at trial under design a common theory. scheme or We reversed. opinion Court, In an Zappala announcing judgment of the Mr. Justice similarity reasoned that the between the two murders was satisfy requirements insufficient to excep- of the common scheme general
tion to the prohibiting rule past the admission of evidence of Appellant’s criminal conduct. reliance on our decision in that case in arguing against here the consolidation of the Grice and Summers charges requires murder killing Dougherty. reference to the
an instrument of crime. A sentence of death imposed along with ten to twenty years for the charge robbery two and one-half years for the weapons offense. On direct Court, appeal to this we overturned the conviction and remanded for a new trial. Commonwealth v. Clayton, trial,
At the first cellmate, Grice Roy Young, a testified appellant told him he had killed both Grice and Sum- mers so that people him, would fear and he could so increase his influence drug over the traffic in Center City Philadelphia.
On this and other evidence by police, discovered Commonwealth had charged appellant with both the Grice and Summers murders. After our Grice, remand in these charges it, were consolidated for In trial. a jury found guilty two counts of murder in degree, the first two counts of robbery two counts of possession of an instrument of crime. After a penalty hearing, appellant received two death sentences. Post trial motions were denied, and appellant was formally sentenced on February 25, 1986, for the crimes involving Grice and Summers. sentences, addition to the two death appellant received two consecutive sentences of ten to twenty years for robbing Grice and A Summers. motion to modify and reconsider sentence was denied and this direct appeal taken to us on March 1986.
I Appellant challenges the admissibility bullets re- Felder, moved from Thomas and the testimony of a ballis- expert tics that one of the bullets removed from Felder was fired from the gun Summers, same that killed and could have gun been fired from the same that killed Grice. In the alternative, appellant if argues that even this evidence was admissible, the trial court erred instructing the jury they inferences find which are equally likely from the evidence must be drawn in favor of the defendant. As a matter of logic, appellant’s argument abstract deductive *9 however, requires seems correct. it initially Concretely, inductive consideration of the factual both circumstances surrounding the removal of the bullets from Felder’s body and the other relevant produced evidence at trial. We will so consider it.
Felder testified that he was shot twice. an unrelated incident, earlier Wendell him in Lewis had shot the stomach. September 14, 1980, On shot him in the back. These two bullets were surgically removed at the same time, Hence, but not labeled. it could not be directly determined which bullet was removed from his Ap- back. pellant argues that the bullets and ballistics testimony should not have been admitted because there was no proba- bility that the bullet taken from Felder’s back was fired from gun Summers, which killed but only a 50-50 possibility, a possibility speculative too to place before a jury. Because the Commonwealth could not directly iden- tify which of the two bullets was removed from Felder’s back, appellant goes on to argue that the bullets and ballistics were testimony not relevant. This argument fails. While the inability to conclusively identify which of the bullets came from Felder’s back affects the weight of this evidence, it does not affect its admissibility. Independent bits evidence in a trial are not in splendid viewed iso- lation, as if the probability factor of each was independent of all others. are They part of a web whose interlocking strands weave a snare for the man who would upon set his fellow in secret and with pursuit stealth. The of truth is inductive more often than deductive and the snare is made out when the strands intertwine on each other warp and woof. Such is the case here. Relevance is not to be confused with deductive nor certainty, considered as if each bit of evidence must independently establish probability. Such treatment confuses the issue of relevancy with the problem of establishing a foundation for admission.
Relevant ballistics testimony weapons are admis despite sible an inability to conclusively determine that the introduced weapon was the actual one used in the crime.
See, Brown, Commonwealth e.g., v. 512, 467 359 A.2d Pierce, (1976); Commonwealth v. 393 453 Pa. A.2d 309 Ford, Commonwealth v. (1973); 451 Pa. (1973). Ford, In supra, Commonwealth v. the Commonwealth a introduced knife found in possession the of the defendant because it could have been used in the murder the two could be that victims. It not said defendant’s knife was the in weapon Still, actual used the commission of acts. both held possessed we it relevant and admissible because it was the defendant and could have been so As as long used. proper laid, the foundation had inability been to conclu- in sively establish the knife evidence weapon was actual in the crime its employed weight, affected not its admissibil- ity. case,
In present the bullets are admissible. One of the two from bullets removed Felder came from the gun Stewart, v. Commonwealth that killed Summers. 461 Pa. A.2d At issue in this case is whether killed Felder appellant Summers. testified that appellant tried to kill him in the that style same was Summers case, As in Ford murdered. the fact that appellant could have fired from the bullet that came the same gun that killed Summers would make it more probable that relevant, appellant shot Summers. it Since was laid, proper foundation evidence was admissible. The bullet’s foundation flows from the other link evidence ing appellant to the Summers This other killing. evidence made it relevant. The was aware that jury Common wealth could establish which bullet was removed from back, weigh Felder’s and could accordingly. the evidence admissible, argues Even if the trial court should have jury equally instructed the that when two and mutually inconsistent inferences can drawn from the circumstances, same set of in the inference must be drawn Com favor the defendant. in our decision Relying Tribble, monwealth (1983), appellant argues finder fact could have inferred with in Mr. Lewis or he fired the bullet reason that either equal In misplaced. reliance is Trib- this case. This question and determined that ble, we considered all of the evidence inferred. When conflicting inferences could be equally two case, present is examined it all of the evidence conflicting inferences cannot be equally clear that two inferred. Tribble, the defendant had supra, Commonwealth v. Board Montgomery County Opportunity
worked for the
(Board)
took
on the
place
two months before a break-in
just
him
required
Board’s
His
to come into con-
property.
job
the Board. These trucks
tact with certain trucks owned
investigation
An
revealed several of
forcibly
*11
were
entered.
There
no
fingerprints.
the defendant’s
evidence that
frequently by
employees,
these trucks had been used
other
long
fingerprints
or how
these
had been on the truck.
Larsen,
stated,
writing
Mr.
for the
based
majority,
Justice
on all the evidence: “While it is a reasonable inference that
on the
fingerprints
impressed
[night
were
[the defendant’s]
crime],
equally
may
an
reasonable inference
also be
drawn that
were
fingerprints
impressed
[the defendant’s]
break-in____” Id.,
622,
prior to the time of the
two bullets in
two
inconsistent
equally
inferences
However,
could be drawn.
when
of the
all
evidence is
Hubbard,
259,
7. See also Commonwealth v.
argument
A similar
was raised in Hubbard and this Court
stated,
foregoing
singly
none of the
taken
"[w]hile
facts
would be
guilt,
totality
sufficient to establish
thereof and
[the defendant's]
arising
legally
the reasonable inferences
therefrom were
sufficient to
Id.,
guilt
jury.”
render
an issue for the
472 Pa. at
[the defendant’s]
271,
Dawson,
(quoting
II Appellant argues next the trial court erred in permitting consolidation of the Grice and Summers murders for trial. He relies on decision in Commonwealth v. our Clayton, (1984). There, plurali A.2d ty Dougherty reasoned evidence murder was evidence of unrelated crime and so at appel inadmissible lant’s for the trial Grice murder. Appellant argues now that the Summers and murders Grice should have been consolidated, because it similar permitted evidence un to get related crimes before the same jury. Appellant’s reliance on our previous decision is misplaced.8 Separate may long 8. crimes be consolidated for trial as as evidence other, admissible at one would be at the admissible defendant *12 1128; unduly prejudiced. 1127A(l)(a), is not Pa.R.Crim.P. Common- 535, (1981); Galloway, wealth v. 495 Pa. Common- Morris, rule, (1981). general wealth v. A.2d As a 493 Pa. 715 are, charged crimes unrelated to the are one not admissible. There however, exceptions proposition. several to this In Commonwealth v. Rose, (1979), 483 Pa. 396 A.2d we stated: (1) prove of other ‘evidence crimes is admissible when it tends to motive; intent; (2) accident; (3) (4) absence of mistake or scheme, plan design embracing common or commission two or proof more so crimes related to each other that of one tends to others; prove (5) identity person words, or establish the of the charged with the of the crime on other commission trial —in logical where there is connection such a between crimes that proof naturally one will tend to show that the accused is the person who [Citation committed the other. When the omitted.] issues, important evidence is relevant and to one of these five it is generally outweighed prejudicial may conceded that effect added.]’, probative [Emphasis quot- value. [Footnote omitted.] Mr. Clayton, supra, Zappa- In Justice Commonwealth Court,9 opinion announcing judgment in an of the said la of the murder could not be intro- Dougherty that evidence first trial for the murder because appellant’s duced at Grice Rose, in recognized exceptions supra, none of the stated applied. from a argued syllogism.
In Commonwealth Clayton, premise Dough- was that the circumstances of the major Its shooting murder were admissible at a trial for the erty gun Felder because the same was used both. Its minor , that the Felder at the premise shooting was admissible murder. From this to deduce sought trial for Grice it Dougherty that evidence of the murder was admissible for the Grice murder.
Mr.
reasoned
there was no direct
Zappala
Justice
evidence,
Rose,
as in
to connect
to the
appellant
Dougherty
fact,
had
of the
appellant
acquitted
murder.
been
murder. Mr. Justice
noted that
Dougherty
Zappala
dependent
connection was
on the
Dougherty
completely
187, 197-8,
Peterson,
ing Commonwealth v.
Id.,
399-400,
483 Pa. at
A.2d at
1230.
robbery
Randolf Rose was accused of the murder and
of Russel
trial,
Leary.
testimony
At his
was introduced that on the same
murder,
morning
Leary
as the
Rose
and robbed Robert
also shot
Crosley.
attempted
Gary
argued
Edwards and shot and
to rob
Rose
that the admission of these two other crimes was error.
rejected
argument.
opinion by
Eagen,
We
this
In an
Chief Justice
this Court reasoned:
Here, Edwards, Leary
Crosley
were all shot in the back at close
range
attempt
robbery.
in the
course of or
an
to commit a
Crosley
circumstances of and the manner in which the Edwards and
very
Leary
crimes were committed were
similar to that of the
period
crime. All occurred within a short
of time and in a limited
geographical
Clearly,
area.
a close connection was established
permit
sufficient to
crimes
the conclusion that all three
were com-
individual,
establishing
mitted
identity.
one
and to aid in
this individual’s
Thus,
properly
evidence of the other crimes was
admitted.
Id.,
In the present there is likewise sufficient similarity between the Grice and Summers murders to allow the admission of either at the trial of the other for the scheme, purpose showing a common appel and hence lant’s in identity as the actor both. This is though so even common scheme advanced to admit other crimes for the purpose showing in identity requires more features com mon than one used II just Wigmore, show intent. (Chad Evidence in Trials at Common Law at 249 § 1979) intent, bourn rev. (similarity sufficient for but identity on “such depends a concurrence of common features that the various acts are naturally explained as caused by a general plan of which are they the individual manifesta tions”). case, In this we believe the common features create a sufficient likelihood person that the same commit ted both crimes to their permit admission for the purpose of showing identity. produced Commonwealth testimony
confessed to killing both Grice and in Summers order to increase his influence drug over the trafficking trade Center City Philadelphia by imposing fear on drug other 4.12-14, dealers. N.T. at 4.17. Both Grice and Summers were drug dealers Center City Philadelphia. Appellant had known and interacted drug with both of these dealers. Both were killed within less than three months of each other. Both killed by were the same type weapon and possibly gun. the same Both were killed above bars in an style. execution were shot They range at close in the head pockets Thus, and their were searched for money.
279 for the murder at a trial Grice Summers admission in showing appellant’s both motive probative murder and his as the identity to murder and rob seeking out Grice the crime. who committed actor
Ill process rights that his due were argues also Appellant court abused its discretion not and that trial violated of the trial so penalty phase a continuance granting could travel from New York stepfather that his mother his Both of these lack arguments behalf. testify merit. degree a verdict of of first jury guilty
The returned 24, 24, Before Friday morning, May May murder on 1985. appellant defense counsel had asked to have his mother and present at the trial in case the returned a stepfather jury refused, guilty Appellant allegedly verdict. N.T. at 6.18. put stepfather because he did not want to his mother and through the trauma of another murder trial. did Appellant agree not to have his mother and until stepfather testify 24, May and it was not until that time that he told his defense counsel that could not arrive until the follow- they afternoon, ing Tuesday.10 At 3:11 defense counsel p.m. moved for a so that the and stepfather continuance mother testify. could This motion was denied the trial court. penalty hearing, At the heard the of a jury testimony who the difficult life had as psychiatrist explained a child. Carolina, relies on 476
Appellant
Skipper v. South
U.S.
1,
1669,
106 S.Ct.
10. was a
280 appeal Supreme the United Court
On
States
held that
exclusion of this
inconsistent with the rule of
testimony was
102
Oklahoma,
v.
455 U.S.
71
Eddings
S.Ct.
(1982)
precluded
L.Ed.2d
that “the sentencer ... not be
considering,
mitigating factor, any aspect
from
as a
of a
any
defendant’s character or record and
the circumstanc-
es
proffers
offense
the defendant
as a
for
basis
a sentence less than
Id. at
at
death.”
S.Ct.
Ohio,
586, 604,
(quoting
438 U.S.
Lockett
S.Ct.
2964, 57
(1978)) (emphasis
original).
L.Ed.2d
Court reasoned that evidence that the defendant
would
*15
prison
in
danger
potentially mitigating,
be a
was
and the
process rights
defendant’s due
were
exclu-
violated
the
sion
such evidence.
106
at
The
Skipper,
S.Ct.
1671.
said
“permitted
Court
the defendant must be
to present any
all
mitigating
and
relevant
evidence that is available.”
Id.
added).
(emphasis
First, the trial in this court case would admit have the ted mother and if stepfather’s testimony were they to present Appellant, unlike the in testify. Skip defendant was to per, “proffer” unable their testimony appro at the priate time because he to request presence refused their the until returned a jury guilty appel verdict. Because of act, alleged lant’s deliberate mitigating evidence was “not available” at the time of the penalty hearing.11
Moreover, unlike the disputed testimony it Skipper, appears the only testimony appellant this could from obtain stepfather his mother and that he a had child- difficult hood. This would have been to the psychia- cumulative Therefore, trist's if testimony. even the trial did court error, commit must we consider whether it was harmless beyond reasonable doubt. Commonwealth v. 476 Story, A.2d Board, Compensation 11. Mrs. Pie Co. Appeal Smith v. Workmen’s Cf. (fore- (1981) 57 Pa. Commonwealth Ct. going ample opportunity acquire to favorable evidence due vicerates process argument). argued disputed testimony Skipper, the state that his and former wife the defendant cumulative because was The satisfactory. conduct in was jail stated that his had this It reasoned argument. Supreme rejected Court as the excluded evidence cumulative characterizing on facts implausible its as harmless is exclusion us. was allowed to petitioner The evidence before his sort of jail issue of conduct present tend to would discount as jury naturally evidence that a self-serving. testimony of more disinterested wit- The had and, in who would have particular, jailers nesses — favorably predisposed to be toward particular no reason given charges quite naturally one of their —would greater weight by jury. much Skipper, at 1673. S.Ct. case, present testimony
In the had on his diffi- witness, expert cult childhood from a disinterested testimony during pen- was admitted psychiatrist, whose be more alty phase jury likely the trial. would stepfather’s consider the self-serv- testimony mother’s ing. testimony Since their would have been cumulative witness, is the this case converse of disinterested Skipper. *16 petitioner’s stepfa- as mother presence
Insofar the and him, for it should be sympathy ther would to evoke likely duty a no noted that has constitutional to consider jury —— Brown, —, v. “mere 107 U.S. sympathy.” California S.Ct. L.Ed.2d 984 course, the mother speculate stepfa-
Of we could that shows, other The ther would about factors. record testify however, counsel not specify they that defense did mitigating would other factor. We will testify any about so. See Commonwealth do they not assume that would 35, 40, (1981) (evidence Murphy, A.2d court, initial before will specified request at time of trial Therefore, appeal). not be for first time on we considered are satisfied that the denial the continuance was harm- beyond less reasonable doubt.
In a related argument appellant contends that even if right continuance, he did not have a due the process to the trial court’s failure grant to it was an abuse of discre argument tion. This is without merit as well. At the outset, appellant’s good faith in the requesting continuance question. is subject prior to Just to requesting this continu ance, persuaded prosecutor defense counsel the stipulate to the premises Sadoff, to some of underlying of Dr. the defense expert. prosecutor this agreed stipulation not, if because he did trial the would not finish “until Tuesday,” and the prosecutor delay felt the “would be to the detriment the Commonwealth.” N.T. at 6.17. Only gaining after this concession on threat of postponement did pursue the postponement defense on ground asserted here.
Appellant alleges reason the only trial court denied the continuance so jury, juror one particular, would not have to return If Tuesday. this actually case, were then trial court should be strongly criticized for clearly what would be a inappropriate motive for denying a continuance. record,
It is not clear however, from the just what was the reasoning behind the trial court’s decision. While it is true that trial court did make an unfortunate statement promised that he jury that the trial would be finished by Friday, it is not likely that this was the sole reason for denying continuance. For example, before just this statement appellant’s counsel conceded that there was no legitimate excuse for not having the witnesses available at this This, time. N.T. at 6.18-19. and other unstated rea- sons would play a role in properly the trial court’s exercise of its discretion. Estate, Mackarus (1968), we
stated:
‘When the court has come a conclusion the exercise *17 discretion, of its the party complaining of it on appeal has heavy burden; it not persuade is sufficient to appellate might court it that have reached a different place, charged duty first with the if, in the conclusion below; to further necessary go it is the court imposed See: discretionary power.’ show abuse and an Estate, 287], 292-93 A.2d Pa. supra Garrett’s [355 [6 any If for Court’s there basis [trial] 860] decision, must decision stand. (footnote omitted). A.2d
Id., 431 Pa. at 666-67 at Smith, 442 Pa. In Commonwealth in (1971), factors to considered determin- we set out the be Smith, In granted. continuance should be ing whether a stated: we discretion underlying the exercise
Considerations
strengthen
to
necessary
include whether the witness is
of the witness
essentiality
the defendant’s case ...
procure
and the
exercised to
diligence
defense
appellant’s
to which the witness
presence
his
at trial
...
the facts
and, the
the witness could
could
likelihood that
testify ...
at the next term of court.
produced
be
omitted).
(citations
Id., 442 Pa.
IV process rights contends that his due were Appellant phase prosecu violated at the of his trial when the penalty are to life people tor told the who sentenced jury spend not often their entire life in imprisonment jail. do Citing Floyd, our decision Commonwealth v. (1984), A.2d 365 that the appellant argues prosecutor impose the death
improperly persuade jury tried to someday them that by telling appellant may sentence argument fails on review of circumstanc paroled. This under statement was made. It prosecutor’s es which the to a proper response factually misleading came statement *18 284
by appellant’s meant, counsel what a life sentence therefore, right did not fair appellant’s violate to a and just trial.
The prosecutor’s comments at issue are: you Counsel stood in front of said you to that life imprisonment is life parole. Anyone without who is alive and in this knows that who society people are sentenced imprisonment to life do often spend their entire life in jail. by argument.
Do not misled that be Do not sit here with the confidence if sentence this you defendant to life imprisonment, that he spend indeed will the entire remain- der of his life in prison. at
N.T. 6.57-58. law, Pennsylvania
Under such comments de when injected the liberately by prosecutor seriously prejudice the right defendant’s to a fair and just trial.12 Commonwealth Aljoe, v. 198, also (1966). See Com monwealth v. supra. This Floyd, Court reasoned:
‘whether
the
might
defendant
any
at
future time be
pardoned or have his sentence commuted is no
of
concern
theirs and should not
enter
manner
any
whatsoever
permissible
Eighth
12. These statements are
under the
of
Amendment
States,
applied
through
Constitution of the United
as
to
states
Ramos,
the Fourteenth Amendment.
v.
463 U.S.
California
Ramos,
court,
S.Ct.
Aljoe, 569, 573 139, 148, 81 A.2d Johnson, Pa. wealth v. prosecutor, (1951)). comments Allegedly improper context of defense however, within the must be examined D’Ambro, conduct. Commonwealth *19 counsel’s 303, 456 A.2d the argument at of defense counsel’s
An examination following relevant reveals the phase of the trial penalty statement: State, is life without imprisonment in this
You understand in the last commute, but Now, can the Governor parole. commutations only has been years there eight [sic] four special case. Don’t misunder- that is a and therefore in Life prison. is years life ten imprisonment stand forever. imprisonment is life no in parole There is in this State.
Life means life can commute. the Governor imprisonment, only added). As the Commonwealth (emphasis at 6.47 N.T. is brief, counsel its defense points by out in this statement There if corrected. not wrong misleading and would be nineteen, four, of life sentences not commutations were sentencing hearing. period prior to the during eight the year the Pardons for the Action of the Board of Analyses of low Furthermore, relatively this total Years 1978-1985. period. Between to the seven before compared years Analyses commuted. 1971 and sentences were 1971- the Years Action of Board of Pardons for the commuted Also, 234 who had sentences prisoners 1977. and prison from between actually life were released who had prisoners During period, only 1985. that same died actually prison. to life their sentences commuted from obtained See Appellee’s quoting figures Brief at Corrections, Division Department State Pennsylvania of Planning, Research and Statistics. circumstances, these present
Under
case is distin-
guishable from
Aljoe, supra,
Commonwealth v.
and Com-
Floyd, supra.
Aljoe,
any
monwealth
without
prior
counsel,
mention
defense
by
prosecutor
raised the issue
of parole
arguing that a life term did not
mean
really
for
imprisonment
life. The
then
prosecutor
speculated on
might
what the defendant
do if he
jail.
were released from
at
Aljoe, 420 Pa.
wealth v.
497 Pa.
Gwaltney,
(1982).
A.2d 236
In
defense
Gwaltney,
interrogating
counsel asked the
police
officer whether the
requested
defendant had
an attorney.
The officer said that he
prosecutor
had not. The
then asked
the officer whether the defendant had
present
counsel
at
interrogation.
the
The officer answered affirmatively.
appeal
Court,
On
before this
the
defendant
Gwaltney
argued that the prosecutor’s question concerning the pres-
ence of the
attorney
defendant’s
the interrogation
at
was
constitutional error
based
this
Court’s decision Com-
Haideman,
monwealth v.
(1972).
In his cross-examination of
attempted
believing
mislead
into
jury
fense counsel
to
a
appellant
requested
lawyer
had never
that
and thus
day
interrogation,
on the
was
present
misimpression
create
endeavoring
to
his
to
to
forgo
right
decided to
Fifth Amendment
counsel
Thus,
question
of innocence.
suggest
an inference
was
to
prosecutor
proper
designed
was
because it
being
from
mislead.
prevent
jury
Pa. at
For the are sentences of death affirmed. *21 in J.,
FLAHERTY, dissenting opinion files which a ZAPPALA, J., joins.
McDERMOTT, J., opinion. dissenting files a Justice,
FLAHERTY, dissenting. Although agree I that appellant’s conviction should be I this upheld, take opportunity to voice my disapproval of the extensive discussion the majority regarding a circumstances of crime which was unrelated to the mat- judice ters sub which appellant was completely exonerated of his acquittal. virtue Everyone America accused who stands presumed a crime is —is—innocent proven guilty. until Appellant was acquitted Dough- of the murder, erty acquittal and that forecloses any further con- sideration that may have committed that offense. Thus, any similarity the Grice between and Summers mur- Dougherty murder, ders and the while interesting from an perspective, historical is not a proper consideration in re- viewing appellant’s present See, my convictions. authored concurring opinion filed Commonwealth v. Clayton, 24, 34, because, view,
I dissent in my the trial court’s denial of appellant’s for a request short continuance of the sentenc- ing phase, from 3:11 p.m. to the next regular court business so mother could day, appellant’s behalf, on testify his constituted an abuse of In discretion. assessing the propri- ety ruling, court’s it is critical to remember that this case, is a death and it hardly repeating needs here that death a severe and irreversible penalty. view of the severity awesome of the punishment imposable imposed, indeed slight delay to necessary facilitate the mother’s appearance and her testimony at son’s trial for his life seems a minimal imposition on the criminal justice Moreover, system. hangs balance, when a man’s life in the preference of one of the to jurors attend a school next day scheduled court business carry should minimal weight in determining continuance, whether grant especially provide a mother’s relevant testimony on be- half of mitigating circumstances!
The majority request concludes the denial of the for a short justified continuance was because the mother’s testi- mony would have been cumulative. The mother would have *22 development by was marred early appellant’s that testified his father shooting by his mother when witnessing the of old, a subsequent the absence of years five appellant was appellant such that father-figure, poverty and extreme I his mother’s knee. would not to for food at learned steal cumulative mere- testimony as proffered dismiss the lightly psychiatrist that a would parties stipulated the because ly events, I because primarily to the same have testified has a necessarily uniquely a testimony mother’s believe different from strong certainly effect the fact upon finder — read into the hearing report psychiatric the effect of a record! argued, only way you “The closing, the Commonwealth his [appellant] supposedly saw jury] know that he
[the Dr. Clayton mother Willie told father shoot his is because Sadoff____ opinion based his what finally Dr. Sadoff man, to self-serving history in his said Clayton, this Willie is to appellant clear that lied implication Dr. Sadoff.” The to attempted The thus psychiatrist. Commonwealth arguing conclusions psychiatrist's by discredit the was unreli- underlying supplied data which was it is testify, Had allowed to appellant's able. mother been course, her could have viewed possible, jury well, it is also self-serving as but testimony as biased appellant’s would ver- that she have corroborated possible of the conclu- validity psychiatrist’s sion and bolstered the sions. of the mother’s also the exclusion majority justifies no to duty “a has constitutional
testimony jury because — Brown, U.S. sympathy.’ consider 'mere California (1987).” L.Ed.2d 984 Maj. op. S.Ct. at 281. —, required not to with defend- jury sympathize That the is to juries is it is that are cautioned ant thus indisputable, them the court to the apply given listen to and law Nevertheless, inherent properly proved. facts which are is power to It power jury dispense mercy. that, contexts, our cases have limited the true other possibility jury’s dispensing function avoid mercy Williams, verdicts that are arbitrary, Commonwealth v. 187, 191, Likewise, the penalty death statute procedure has structured the for imposing the death sentence to avoid the possibility sentences wholly Nevertheless, which are arbitrary. common jury’s capacity dispense law mercy, albeit *23 unbridled, totally has preserved. been Our cases have recognized: Pennsylvania death penalty] statute permits
[The defendant to introduce of range a broad mitigating evi- dence that can support finding of one or mitigat- more ing circumstances which may outweigh the aggravating circumstances found jury. Appeals mercy for leniency upon can be through made founded introduction evidence along this broad spectrum mitigating circumstances. DeHart,
Commonwealth v. 235, 257, 516 A.2d Peterkin, (1986), Commonwealth v. quoting (Emphasis supplied.) weighing function represents essence of the jury’s capacity dispense to in a death mercy penalty proceeding, and, under case, the circumstances of it this me appalls appellant was right denied the to adequately present all the mitigating circumstances he chose.
Because it impossible predict what effect the moth- testimony er’s might upon had I have the jury, would reverse the judgement of sentence death and for remand imposition of a life sentence.
ZAPPALA, J., joins dissenting this opinion. McDERMOTT,Justice, dissenting.
I obliged am I dissent. believe that under facts here was entitled to the jury charged have on the juridical ancient principle presumed that since one is inno- cent an inference posits guilt which either or innocence must in favor of the drawn accused.
I am not persuaded beyond a reasonable that its doubt omission was harmless.