*1 In the to serve fundamental fairness. scenario necessary in us, holding direct resulted our Appellant’s appeal before languished jail, occurred. we that no error had While and, earlier, holding explained reversed reconsidered circumstances, Rizzuto. Under agree these ourselves that as a matter of fundamental fairness he Appellant be the relief he but did not granted originally sought, should Rizzuto. only to get, position see vindicated join this Justice BALDWIN and Justice FITZGERALD dissenting opinion.
941A.2d 655 Pennsylvania COMMONWEALTH v. COOPER, Appellant.
Willie Pennsylvania, Appellant Cooper. Willie Supreme Pennsylvania. Court
Argued April 2007.
Decided Dec. 2007. *6 Strutin, Philadelphia, Cooper, appel- for Willie Mitchell S. lant. Burns, Young,
Amy Zapp, Harrisburg; Hugh J. William PA, Office, of Attorney’s Dist. for the Com. Philadelphia appellee. CAPPY, C.J., CASTILLE, SAYLOR, EAKIN,
BEFORE: BAER, FITZGERALD, BALDWIN JJ.
OPINION Justice FITZGERALD. 1, 2002, arrested on
Appellant Cooper May Willie murder and related offenses connection with charged with Philadelphia.1 House in The victim lived killing Sherita broth- boyfriend, Cooper, appellant’s her William who is took in the place couple’s apartment. er. murder below, Cooper, appeal and Willie defendant 1. Both the Commonwealth sake, clarity's Cooper from the trial court’s orders. For we refer to appellant throughout Opinion. Philadelphia Court Greenspan, The Honorable Jane Cutler Pleas, jury trial. On presided appellant’s over Common guilty found of First jury October (18 (18 2502(a)), § Robbery Murder Pa.C.S. Degree Pa.C.S. (18 3502(a)). 3701(a)), § October Burglary § Pa.C.S. On 3, 2003, returned a following penalty phase hearing, (a death, finding aggravating one circumstance sentence of of a perpetration felony, committed killing while 9711(d)(6)), circumstances. The mitigating § and no Pa.C.S. additional, terms of nine imposed prison trial court consecutive for robbery twenty years and five twenty years burglary. variety filed motions on a post-sentence
New counsel mitigation ineffective assistance of trial and grounds, including *7 on the days hearings The trial court held two counsel. 2004, re- appellant’s in after which it denied April motions trial, but judgment granted for an arrest of new quests hearing. motion for a The court appellant’s penalty new had rendered mitigation concluded that counsel ineffective argument.2 his during closing assistance grant- the trial court’s order appealed The Commonwealth phase hearing and filed ing penalty new likewise challenged an in the trial court’s denial of appeal which in post-sentence relief on all other claims set forth motions. follow, affirm the trial court’s orders For the reasons we all other claims. granting penalty hearing denying a new In in the death is this penalty imposed, all instances which inquiry sufficiency its an into the begins Court review with murder. support first-degree evidence to Commonwealth .the (2005). Davido, 52, 431, v. 582 Pa. 868 A.2d This case slightly procedural posture. Although different presents case, trial a death sentence court jury imposed has penalty appealed vacated that and the Commonwealth Thus, court’s have before us a case in decision. we which vacated, imposed death and then with the Com- penalty the death requesting re-impose that we sentence. monwealth 30, 2004, clarify June the trial court modified its order to that it 2. On robbery burglary. did not vacate the defendant's sentences review, collateral we have In cases involved prior matters in a lower court vacated characterized which been “in the death has penalty death sentence as ones which of all properly thus our review issues imposed,” triggering 566 Pa. Bryant, on preserved appeal. (citation omitted) (2001) (holding death 780 A.2d for this pending sentence need not be order Court also engage appeal). in review of issues on See Common (2005) Collins, 564, 568 (holding wealth v. 888 A.2d if be this Court even death guilt phase by issues shall resolved review). trial court on collateral sentence has been vacated jury’s on appeal following This case before us direct of the death and the trial court’s examina- imposition penalty tion and resolution of multiple guilt phase penalty phase issues. the benefit of a record. complete According- We have our ly, begin summary with a factual to facilitate sufficien- address all relevant and cy preseived review and thereafter claims of the on parties appeal.
SUMMARY OF FACTS following The evidence at trial revealed the facts. On 3, 2002, a.m., at officers to a February police responded 1:27 at the report burglary progress Empeñan apart- Towers building ment in the section of Philadelphia. Germantown brother, arrival Upon they Cooper, appellant’s met William entering took the officers to his first apartment. who When *8 entryway the officers found the closet apartment, open Inside, and its contents the officers disturbed. Ms. discovered lying House in the There no hallway. appar- face-down were ent signs entry struggle. forced and no indications of a to be and a Nothing appeared missing only value sofa on pocketbook cushion had been disturbed. The victim’s was a couch and a card on the ring lying diamond and credit were sexually floor. The had not been assaulted. victim An autopsy strangled indicated that Ms. House had been death. The medical there no examiner testified were of a A mark on her signs struggle. defensive forehead was The medical a surface. carpeted a fall to
consistent with other mor- post in this case to findings likened his examiner strangula- a quickly men were subdued large tems where tion attack from behind. for dating House had been over and Sherita Cooper
William preg- and one-half months House three year and Ms. Was According time of her death. child at the nant William’s with William, apartment at the stayed couple’s had appellant temporary was a killing. Appellant to the nights prior two or a apartment, to the possess key did not guest, who However, was aware building. appellant to the security card by those typically propped open was of a side exit-door which On building. and then reenter using it to leave for her murder, ready getting Ms. House was afternoon store. and department at Boscov’s William p.m. 4:00 shift Ms. House p.m., at about 2:30 apartment left the appellant to take a The brothers intended for work. preparing exit- used the side City Philadelphia. They into train Center to the way on their leaving apartment complex door when train station. train, arrived, to board the began the train William
When that he to William Appellant explained did not. appellant but mind, to catch a bus to his his and had decided changed had in order to his child. William former house visit girlfriend’s away from the station. appellant on the train and walked got evening cellular records for the afternoon phone William’s that day. his account of his activities substantiated as the criminal discovery of the victim and Following appellant. to interview police sought investigation progressed, been appellant living to the home where had Detectives went him, he before could they speak but girlfriend, and fled. For the next twelve out a back window jumped success, appellant, to locate without days, police attempted to contact detectives. On attempt made no warrant, 18, 2002, a search detectives armed with February house, appellant, transported found back to the same went for an headquarters him to interview. police *9 that after William custody, appellant police Once in told train, a blocks doughnut shop the he went to several boarded from He then stops away and several bus the train station. house, there at girlfriend’s arriving a bus to his former took appellant’s or 4:45 A detective retraced p.m. about 4:30 week, day finding route at the same time and of the purported house, girlfriend’s that it took 45 minutes arrive at the of at least an hour leaving period appellant’s a when where- Cox, Ms. Danine former appellant’s abouts were unknown. child, the mother of his testified that girlfriend appellant and Saturday at her home at about 4:00 that after- p.m. arrived Earlier, police noon. she told that could have appellant p.m. arrived after 4:00 26, 2002, William February Cooper began cooperate
On selling more He admitted that he had been fully police. with marijuana a marijuana, purchased pound and had to Ms. House’s death. that evening prior explained William him bought drugs. Appellant was with when he appellant marijuana in a hide the place “City bag, saw William Blue” door, front bag appellant’s in the closet and red place on in the closet. gym bag top drugs and black William semi-automatic, also hid his a .380 beneath the sofa gun, cushion, appellant present night. while that William, this information
Upon receiving police from went appellant the home where lived Christina and interviewed Shaird, the mother of told appellant’s girlfriend. Ms. Shaird police days following she had seen murder a Blue” appellant “City bag containing marijuana with gym bag also had observed a black and red a “lot of with it, son, Antwan, beneath weed” Willie’s bed. Ms. Shaird’s residence, marijuana also at the for appellant who lived sold been after Ms. drug shortly had arrested sales murder. same time Ms. During period, House’s Shaird’s son, Dwaine, marijuana other observed return Antwan gray, a dark appellant appellant possessed saw gun clip. gun colored with Antwan also saw with time; green as a and brown weapon at described automatic, a nine round Ms. consented to a clip. Shaird *10 home, gym bag a black police
search of her retrieved where bag, trim from a closet. No were found drugs red for resulted in a indication positive but a canine sniff test illegal drugs. trial, for by placing defended the matter blame appellant
At on his brother defense witnesses the murder William. Several House had been a violent testified that William Ms. that Ms. House had shown them burn marks relationship, earlier, her months and that she had body bruises on some suggested also Appellant said she intended leave William. by the murder had been committed William’s perhaps rejected defense drug in the trade. The both rivals events, of accepted theories and the Commonwealth’s version charges. of all finding appellant guilty OF EVIDENCE FOR SUFFICIENCY FIRST DEGREE MURDER sufficiency is clear. We Our standard review trial, at and all must determine whether the evidence admitted therefrom, in the inferences derived when viewed reasonable winner, most favorable to the Commonwealth as verdict light a reason beyond all of the elements of the offense supports Bomar, 426, Pa. 826 A.2d doubt. Commonwealth v. 573 able (2003). 831, determination, In we consider making 840 evidence, that circum cognizant both direct and circumstantial can ele prove every stantial evidence alone be sufficient 98, Gorby, ment of an offense. v. 527 Pa. 588 Commonwealth (1991). 902, may judg A.2d 906 We not substitute our own it is the fact finder’s jury’s, province weigh ment for the witnesses, evidence, be credibility determine the all, or none of the evidence submitted. Common part, lieve (1997). Hawkins, 352, 492, wealth v. 549 Pa. 701 A.2d 501 of first- is sufficient to sustain conviction Evidence that a murder establishes degree where Commonwealth killed, that the accused being unlawfully person human was specific and that the accused acted with a killing, did May, intent to kill. Commonwealth v. 584 Pa. 887 A.2d willful, (2005). is one that killing An intentional 750, 753 2502(d). § deliberate, 18 Pa.C.S. and premeditated. to the light in the most favorable the evidence
Viewing it suffi Commonwealth, certainty that was conclude with First, first-degree murder. support cient to verdict strangulation manual was of Ms. House’s death evidence maliciously acted perpetrator sufficient establish Simmons, intent to kill. specific and with (1995). Further, all A.2d circumstantial, above, primarily albeit recited other evidence a reasonable doubt beyond to establish sufficient reasonably murder. The evidence committed the *11 once to the conclusion that was logically leads he city, on train to center his brother was a assured that gun, drugs stole apartment, to his brother’s returned so, House. doing in the killed Ms. process the convic- supports that the evidence Having determined murder, turn to the issues raised first-degree for tion the sole claim that raises parties. hearing. penalty in a new granting appellant trial court erred turn, to a trial on in that he is entitled new claims Appellant, further, number of and, that there are a variety grounds penalty he entitled to a new bases was upon additional which claims follows: hearing. Appellant’s are to sustain the conviction I. The insufficient evidence was burglary. for admission of prohibiting court erred
II. The trial was Cooper to her friends that William statements victim’s body. burn marks on her bruises and inflicting for responsible object to to the failing ineffective for III. Trial counsel was summation, he stated phase wherein guilt prosecutor’s domestic violence. murder did not involve to the object for to failing counsel ineffective Trial IV. concerning on revocation charge burglary, trial court’s premises. to enter the permission (a) ju- The trial court erred in dismissing prospective
V. affirmatively rors to death or life penalty who answered (b) Trial for qualification questions; counsel was ineffective failing object jurors to the dismissal of absence of dire, failing individual voir and for to conduct individual voir jurors dire of the the death remaining prospective regarding and life penalty qualification. object Trial for failing timely
VI. counsel was ineffective to the references to the Bible his prosecutor’s during penalty phase summation.
VII. Trial counsel for failing timely was ineffective object to the remarks in prosecutor’s penalty phase his sum- mation concerning defendant’s failure to show remorse.
VIII. The committed prosecutor penalty misconduct summation phase suggested may when the defendant escape if he is sentenced to life.
IX. Trial counsel for failing present was ineffective character, crucial evidence of the defendant’s history, and at penalty phase hearing. condition APPEAL COMMONWEALTH’S CLAIM ON The trial court granted appellant’s post-sentence for a on request penalty hearing finding new based mitigation counsel biblical refer making was ineffective *12 ences to the thát in jury imposition effect sanctioned the of the penalty. jury death Counsel told the that people while most were familiar with the biblical “an for an not phrase eye eye,” many knew that the Bible this punishment reserved severe for is, very a of type wrongdoing, person narrow that where a pregnant kills a the fact that Despite woman. this case scenario, involved that very mitigation jury: counsel told the there, you back go may say, When someone as the District Attorney referred: You must impose penalty death tooth, eye eye, because of an for an and a tooth for a if and that I ask ... happens, you request will that a Bible be Bible, you, sent back to and that turn you get when to the Exodus, 24, Chapter book of and you Verse will see tooth for a eye eye, An for an and a very those words: time, think that you you tooth. And at that moment will means, won’t, in order to you it but because know what means, it to read and 23 you know what have verse it, woman, that if there is an assault on a says front of which is and that loses the pregnant, and that woman woman woman, child, then damage beyond and there is that to a tooth for a tooth. You back eye eye may go an for an there, the death you may you impose think that have in this case because that is the penalty thing worst anyone can do to else. anyone ever 21, 2004, 82-83; at Opinion, July
N.T. at Trial Court 10/2/03 Shortly penalty began, 13 n. 4. after deliberations refused, Bible. The trial court judge asked the trial give you be for me to a explaining, inappropriate would “[I]t 3. of the Bible.” N.T. at copy 10/3/03 evidentiary hearing appellant’s
At on post-sentence incident, in cofineetion coun- claim ineffectiveness precluded that he that a from prosecutor sel testified knew Bible, he referring to the but did not believe same rule counsel. The trial court found credible applied defense testimony despite counsel’s awareness victim’s habit, as argument he had made the biblical out of pregnancy, used the as a basis for a frequently argument encouraging rejection specifi- of the death The trial court jury’s penalty. counsel’s comments to be and not in- cally found accidental prejudicial proceed- tended as an effort to build error into the Concluding Trial at 15. that all ings. Opinion prongs Court met, assistance of counsel had been the trial ineffective sentence and granted appellant court vacated the death new penalty hearing.
To on an of counsel prevail ineffective assistance 1) claim, an establishing: the defendant bears burden 2) merit; claim of no reasonable basis for underlying arguable 3) omission; result, is, prejudice counsel’s act or omission, that but for counsel’s probability a reasonable act proceeding the outcome of the would have been different. Carpenter, Commonwealth v. 725 A.2d *13 134
(1999). been effective. Com presumed Counsel is have (2000). Balodis, 341, 567, A.2d 343 v. 560 Pa. 747 monwealth of this test is fatal to the satisfy any prong A failure to Sneed, 318, v. 587 Pa. claim. Commonwealth ineffectiveness (2006). 1067, 899 A.2d 1076 assistance of counsel extends right effective is to purpose “sharpen of which closing arguments, to the trier of fact. Common presented the issues
clarify”
(2004)
119,
726,
Pa.
855 A.2d
742
Bryant,
wealth v.
579
5-6, 124
1,
v.
540 U.S.
S.Ct.
(quoting
Yarborough Gentry,
from
(2003)).
range
L.Ed.2d 1
Because of
broad
stage
at this
strategies
proceeding,
defense
legitimate
tactical decisions in his
deference is accorded counsel’s
great
A
Yarborough, supra.
by
misstatement
closing presentation.
not
de
referring
necessarily
counsel
to evidence does
when
relief,
is instructed that
jury
mand
because the
particularly
Bryant, supra
of counsel are not
at
arguments
evidence.
disregard completely
do not
reason
Although
745.
counsel,
of other alternatives available to
“the bal
ableness
assistance as soon as
finding
ance
in favor of a
effective
tips
that trial counsel’s decision had
reason
any
it is determined
Pierce,
v.
515 Pa.
A.2d
able basis.” Commonwealth
(1987) (citation omitted).
973, 975
Chambers,
Our for certain intentional punishment killings, appropriate forth that control specific sentencing procedures statute sets penalty may imposed. the manner in the death be which *14 135 § provides separate Pa.C.S. 9711. The relevant law a offer penalty phase hearing, whereby parties the evidence the to punishment, opportunity relevant to counsel has (3). 9711(a)(2), § argument. 42 Pa.C.S. Defense present in permitted presenting counsel is wide latitude evidence jury, including factors to the a factor counsel mitigating case, is, ... “any concerning in that ... argued this evidence the character and record of the defendant and the circum- 9711(e)(8). § stances of his offense.” 42 Pa.C.S. to refer religious
We have not hesitated
find that
improper
persuade
ences are
and irrelevant
intended to
when
beliefs,
jurors to
their
as
to the law of
religious
opposed
follow
Chambers,
this
existence of one and no aggravating mitigating circumstance circumstances, the did not in a jury engage weighing have process, and therefore could not have been affected defense counsel’s remarks about the Bible. on Relying several deci- upheld imposition sions this Court which we sim- argues the Commonwealth penalty,
death
matter of law.
as a
prove prejudice
cannot
ply
our attention
draws
The Commonwealth
(1987),
A.2d 334
wherein
Crawley,
a
remark
improper
prosecutor’s
acknowledged
Court
to a
message
in order to send
death
jury
impose
should
to the same defendant
a lenient sentence
given
had
judge who
that,
Crawley
344. We concluded
case.
Id. at
prior
remark,
that the
the fact
nature of the
prejudicial
despite
no mitigat
circumstance' and
single aggravating
found a
*15
weighing process
no
meant that there was
circumstances
ing
affected
the
adversely
been
jurors may
in
have
which the
reached a similar
Id. at 344-45. We
comments.
prosecutor’s
A.2d
568
Beasley,
in
v.
conclusion Commonwealth
death
to affirm a
(1990),
considered whether
1235
when we
the defen
remark about
prosecutor’s
the
following
sentence
i
And
Id. at 1237.
criminal conviction.
previous
dant’s
(1991),
n
Pa.
We Bible, accord- an issue this Court has references to the involve Further, more and much past. in the ed careful treatment the and egregious do not involve simply the cases importantly, Here, defense in this case. present circumstances bizarre counsel, jury with honestly unwittingly, presented and the death imposing basis compelling independent counsel’s defense Essentially, on his client. penalty own invalidated, contradicted, argument indeed his statements consideration requested jury mitigation, of wherein support the defendant and the circum- and record of “character 9711(e)(8) (emphasis § Pa.C.S. stances offense.” added). these summarized above involved None of the cases they that do not and so we conclude unique circumstances control. claims to for ineffectiveness the standard
Applying to arguable appel- that there is merit issue, first we conclude improper. counsel’s reference was that defense lant’s claim reference, it a biblical see because was just This is so not Daniels, encouraged jury because it A.2d at but circum- particular under the penalty to the death impose inter- argued against counsel his client’s stances of this case: Second, no reasonable counsel strategy can think of ests. we The trial who judge, this reference. sought employ by hearing, specifi- testimony evidentiary at the heard counsel’s statements were inadvertent found that counsel’s cally Third, suggest accidental. it is inconceivable retiring on the deliber- jury. Upon statement had no effect ate, provide that the court jurors immediately requested them a Bible. prejudice concluded that was established
The trial court supports conclusion. The record find no error that, encouragement but for counsel’s finding trial court’s in this penalty that the Bible mandated the death case, been hearing may the result of the well have particular Pennsylvania Sentencing provides different. The Code the sentence of death unless it deter- this Court shall affirm product passion, prejudice mines that the sentence “was the *16 l(h)(3)(i). § factor.” 42 any arbitrary or other Pa.C.S. 971 likely very reference aroused those factors Counsel’s biblical result, grant in this case. As a will affirm the trial court’s hearing. of a penalty new APPEAL
APPELLANT’S CLAIMS ON that the at trial first asserts evidence Appellant lor burglary. Specifi insufficient to sustain his conviction was failed to prove claims that the Commonwealth cally, appellant privi doubt that he was not licensed or beyond a reasonable if “A is premises. person guilty burglary to enter the leged structure, occupied separately a or or building he enters thereof, intent to commit a occupied portion secured or therein, open are at the time to the premises crime unless privileged is to enter.” 18 or the actor licensed public 138 3502(a). Thus, § to on a prevail burglary charge,
Pa.C.S. beyond is to a reasonable required prove Commonwealth doubt that the offender entered the the con- premises, with crime, committing intent of a at a time when he temporaneous privileged was not licensed or to enter. Commonwealth v. Thomas, (1989). 699, However, 561 A.2d a a privilege premises negated license or to enter the event Edwards, acquired by deception. it is Commonwealth v. (2006). Edwards, In Pa. 903 A.2d the defen- home, claiming money dant to the victim’s went have However, a debt. Id. at 1144. drug settle the defendant’s purpose gain entry real was to into the residence in order to kill appeal, argued the victim. Id. On the defendant that the insufficient to establish because the burglary evidence was permitted entry premises. victim him into the This Court claim, rejected the defendant’s that the explaining deceptive entry negated any privilege nature of the license or to enter. Id. at 1148. burglary theory
The in this case Commonwealth’s was presented similar to that Edwards. The prosecutor sug- gested gained entry into his brother’s apart- trial, ment by deceiving victim. evidence at when light as it must be in the most to the viewed favorable winner, as verdict conclusion. supported Although deception primarily the evidence was circumstan- here, Edwards, tial it no less than any was valid nor compelling. less
Despite plans accompany City his brother to Center on murder, appellant the afternoon of the left William at the last moment, boarded the train. Appellant as William then re- turned apartment complex, where knew door him propped-open give building. would access to the key did not have a to the no Appellant apartment and was Nonetheless, longer guest there. access to appellant gained sign There no of forced and no apartment. entry sign *17 marijuana of the struggle Appellant inside. stole and firearm addition, there. In he strangled knew were hidden death, from likely of most by surprise, some manner victim behind. inference that the
All of these facts lead to the reasonable access to the for some granted appellant apartment victim reason, in fact entered so seemingly legitimate when the theft. In of our standard of accomplish light that he could review, supported we conclude that the evidence Common- Edwards, appel- Under theory deceptive entry. wealth’s fails. lant’s claim trial
Appellant next claims that he is entitled to new the trial error in defense excluding proffered based on court’s trial, theory At of the case that testimony. appellant’s end, appel committed the murder. To that brother William testimony regarding lant offered from Ms. House’s co-workers The trial court couple’s relationship. permitted volatile burn testify they these that saw bruises and witnesses body marks on the victim’s some months before the murder. However, the court not permit testify did witnesses to injuries, told them for the responsible victim William was ruling hearsay, excep that such statements no were which tion applied.
Admission of
is a matter
the sound
evidence
within
court,
of the trial
not be
discretion
and will
reversed absent
the trial court
abused its discretion.
showing
clearly
Chmiel,
478,
406,
v.
Commonwealth
558 Pa.
738 A.2d
(1999). Not
an
merely
judgment,
an error
discre
abuse
tion occurs when “the
or
or the
misapplied,
law overridden
unreasonable,
exercised is
or the result
judgment
manifestly
bias,
ill-will,
partiality, prejudice,
shown
McAleer,
evidence on record.”
v.
561 Pa.
Commonwealth
(2000) (citation omitted).
Appellant argues
among
other
decisions
(1992)
530 Pa.
motive, the appellant or malice. Under in to establish that someone admissible order evidence was death. responsible appellant’s else the victim’s While was note that adequate, of this claim is less than development the be to establish that may interpreted and Myers McGowan observe, at relevant to his defense. We evidence issue was however, if assume that the should have that even we evidence admitted, exclusion been we would conclude its was reflects that defense counsel was harmless here. The record jury in to the evidence William’s presenting successful jury relationship abusive with the victim. physically co-workers, from her and defense counsel testimony heard in cross-examination of at trial. Fur- engaged zealous William ther, most conceded perhaps important, prosecution closing argument. of the his aspect couple’s relationship Thus, a couple’s relationship was aware that one, and that abused the victim some months stormy William reasons, not to her murder. For these prior to relief on this claim. entitled a next claims that he is entitled to new
Appellant
object
in failing
trial based on trial counsel’s ineffectiveness
closing
guilt phase. Spe
'to the
statement at the
prosecutor’s
“ex
cifically, appellant challenges
prosecutor’s improper
at the murder
did not
pert opinion”
the evidence
scene
a domestic
comport
killing.3
violence
A
latitude
prosecutor
during
has reasonable
case, respond
arguments
to advocate his
closing argument
counsel,
fairly present
the Commonwealth’s
opposing
jury.
to the
Commonwealth v. Abu-
version
evidence
(1998).
Jamal,
485,
79,
challenged
553 Pa.
720 A.2d
110
A
must be
in the context in
by prosecutor
statement
evaluated
Hall,
269,
it
made. Commonwealth v.
549 Pa.
701
which was
direct
3. This claim of ineffective assistance of counsel is reviewable on
despite
ordinarily
appeal
the rule that
ineffectiveness claims
should
Grant,
48,
A.2d
await collateral review. Commonwealth v.
572 Pa.
813
Here,
(2002).
appellant presented the claim to the trial court on
726
post-sentence motions and the court considered and resolved the issue
Thus,
exception
the claim
the narrow
to Grant set
on the merits.
fits
Bomar,
426,
831,
(2003).
v.
573 Pa.
826 A.2d
855
out Commonwealth
141
190,
(1997).
every intemperate
improper
198
Not
A.2d
of a
Commonwealth
granting
remark mandates the
new trial.
(1975).
Reversible error
4. The made the remarks: boyfriend, going way: Cooper William is who to kill Sherita is House, girlfriend. type.... I who is the That is called a domestic House, killing way you of Sherita that she was submit to murdered, (he occurred, place, where it took manner in which it is not submit, expert, of a You don't I indicative domestic murder. have to be field, will, you every juror permitted in the if because to use their intellect, wisdom, sense, experiences, common their their their human behavior, knowledge you apply of human and can that to the and their case, any you people-and you facts of this and of I'm sure that all of situations, TV, people or read have heard numerous or seen them on them, you of murders. I that a domestic about domestic submit to they trying get you murder-I assume that are to believe that order Willie, him, put to take the heat off and take the focus off and it on his concluded that the offered a fair prosecutor The trial court merely counsel’s and arguments to defense asked response sense, wisdom, jurors experience, to “use their common reject appellant’s of human nature” to version of knowledge result, Trial at 12. As a the trial court Opinion events. Court concluded, no merit to claim underlying appellant’s there was Upon there could be no ineffectiveness. of the review whole, agree. record as a entitled to mount an based prosecutor argument,
The
was
record,
why
theory
on the
as to
the defense
only
evidence
comments on the
worthy
prosecutor’s
not
belief.
was
struggle
type
lack of
of a violent
and the
and amount
evidence
injuries
nothing
suffered
more than a
victim
were
at trial.5 His
presented
appeal
recitation
evidence
jurors
assessing
to use their common sense
evidence
theory
the merit of
evaluating
appellant’s
proper.
not
complained
Because the remarks
of did
rise to the level of
misconduct,
counsel cannot be deemed
prosecutorial
defense
Commonwealth v.
failing
objection.
ineffective for
to raise an
(1998).
Whitney,
N.T. 10/1/03 part jury to a reviewing challenge When instruction, to determine charge entirety we consider the in its if complete; if it is fair and a verdict not be set aside will context, instructions, set accurately taken as a whole and in Bracey, applicable forth the law. Commonwealth (1995). 1062, 1068 322, 662 A.2d respect three-prong appellant
With standard ineffectiveness, to establish note that his claim satisfy must charge at one. to the prong Simply put, judge’s fails correct. As indicated our discussion Edwards and above, out license or to enter a privilege premises Thomas set may negated permission indeed be in the event such is ac Thus, by deception. appellant’s there is no merit to quired claim, underlying allegation which fatal ineffective assistance of counsel.6 remaining claims all concern trial court errors
Appellant’s
or ineffective assistance of counsel in connection with his
Further,
merit,
if
6.
even the claim had
we nonetheless would conclude
prong
failed to meet the second
of ineffectiveness. At the
issue,
evidentiary hearing
that he
on this
defense counsel testified
did
object
charge
given
it was
not
to the
after it was
because
believed
theory
appropriate under
of the case. N.T.
the Commonwealth’s
4/8/04
importantly,
charge perhaps
explained
counsel
that the
at 15-16. More
*21
defense,
required
helpful to the
it
to find
would be
trickery
subterfuge
beyond
doubt that
to
a reasonable
used
strategy designed
gain entry.
employs
Where counsel
a reasonable
interests,
advance his client’s
he will be deemed effective. Common
Williams,
1,
(1994).
Pa.
wealth v.
537
144 into three dis- claims fall Appellant’s initial death sentence. 1) death-quali- of a the manner of selection categories: tinct 2) object to the prosecutor’s counsel’s failure to jury; fied 3) 'and counsel’s penalty phase; statement at closing Like the trial evidence. mitigation failure to certain present claims is court, of these unwarranted we conclude review See death sentence has been vacated. appellant’s because 608, 611, A.2d 614 Boxley, v. 575 Pa. 838 Commonwealth (2003) qualification purposes dire for death (inadequacy voir issues); v. only phase implicates penalty (where (2004) Moore, defendant 860 A.2d hearing, remaining penalty phase all granted penalty new moot). penalty has ordered a new are The trial court issues order, any moot rendering affirmed that hearing, we have issues. penalty phase further review herein, affirm the trial court’s For the reasons stated on his issues and denying appellant guilt phase order relief Accordingly, issue. penalty phase relief on his granting penalty phase hearing. matter is remanded for a new relinquished. Order affirmed. Jurisdiction CAPPY, SAYLOR, EAKIN and Chief Justice Justices join the opinion. BAER and Justice BALDWIN concurring opinion. files a Justice CASTILLE CASTILLE, concurring. Justice I I two join Majority Opinion. separately write I points address below.
First, recently my I I expressed reiterate view 933 A.2d Rega, Concurring Opinion Commonwealth J.) (Pa.2007) (Castille, J., joined by Saylor, concurring, that, generally defendants rights, absent waiver of PCRA motions and permitted expand post-verdict should not be at collateral claims. See also id. appeal encompass direct C.J., in this concurring) (sharing my concerns (Cappy, area).
145 judge’s granting trial basis for Second, to the respect with relief, mitigation counsel’s invita- agree penalty-phase Sentencing for the the Bible the to substitute jury tion to The very a reasonable basis. and lacked improper Code was to the prejudice invitation is improper of such an purpose proper as if it a irrelevancy an were by introducing opposition to the statuto- attempts circumvent argument.1 Such penalty be the disapproved scheme should rily sentencing mandated Nevertheless, that the here attempt the fact strongest terms. that, argument does not had the pitifully prove botched was made, not have returned the jury probably not been the would question it is a close my judgment, very In penalty. death from counsel’s any improper actual arose prejudice whether “it Majority concludes that is inconceivable invitation. because, effect on the jury” that the statement had no suggest deliberation, that the jurors immediately requested the upon at 666. Majority Op. trial them with a Bible. judge provide however, just promptly request, as denied the judge, The trial be telling jurors doing “inappropriate” the so would must the based on reminding they penalty them that “decide them, I it to gave you.” the as find and the law as you facts 10/3/03, Moreover, the in this Testimony, Notes of at 3. mitigating single aggrava- case found no circumstances and (that committed the ting killing circumstance while the perpetration felony), improper botched circum- argument nothing aggravating had do with improper “eye eye” stance.2 Counsel’s an biblical refer- and, irrelevant, being ence irrelevant it is hard see specific prejudice.
Nevertheless, prejudice by assessment was made judge degree trial and therefore deserves a certain defer- that, Commonwealth, beyond 1. It is cavil had it been offered argument prosecutorial such an would constitute misconduct. Trial any respect judges permit more latitude with should not the defense extra-statutory capital such references to sources of law in a case. only pregnant 2. As the victim was three and one-half months at the death, present pregnancy time of her the Commonwealth did not her (d)(17) (“At aggravating § an circumstance. See 42 Pa.C.S. pregnancy killing time in her third trimester of of the the victim was knowledge pregnancy.”). of the victim’s the defendant had fact, That concern I have together supervisory ence. above, affirmance join Majority’s articulated leads me to hearing. of a grant penalty new
941 A.2d 671 S.R., In the Interest of of Petition S.R.
Supreme Pennsylvania. Court Dec. 2007.
ORDER PER CURIAM. NOW, December, 2007, day
AND this 28th the Petition issue, for Appeal rephrased Allowance GRANTED. is: clarity, (1) Did the Court err that a mother’s Superior finding abuse, alleged of her sexual questioning daughter, who pur- nontestimonial for Confrontation Clause and Crawford poses?