*1 (2004). Thus, claim, respect at least to this I craft with would similar order here connection with a remand. join BAER concurring
Justices NIGRO and opinion. dissenting
860A.2d 102 Pennsylvania, Appellee COMMONWEALTH v. DeJESUS, Appellant.
Jose Supreme Pennsylvania. Court
Argued Oct. 2002. Oct. 2004. Decided *4 Chester, Stretton, DeJesus, Samuel C. West for Jose appel- lant. Burns,
Hugh Philadelphia, Amy J. Zapp, Harrisburg, Lorie Dakession, PA., K. appellee. for Com. of ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO,
BEFORE: NEWMAN, EAKIN, SAYLOR and JJ.
OPINION Justice CASTILLE. is a from appeal
This direct of death imposed by sentence Philadelphia County Court of Common Pleas. Following a trial, capital which commenced on September murder,1 appellant first-degree convicted carrying fire street,2 public possession arms anof instrument of At crime.3 two penalty phase, jury found aggravating mitigating circumstances and two circumstances.4 The § 1. 18 Pa.C.S. 2502.
2. 18 Pa.C.S. § 6108. § Pa.C.S.
3. 18 907. aggravating significant 4. The circumstances were that had a history felony involving convictions threat use or of violence to 9711(d)(9), person, § Pa.C.S. was convicted of murder, either another committed before or at of the the time offense at issue, 9711(d)(ll). § mitigating id. appel- The two circumstances were
308 aggravating outweighed circumstances the
found that the circumstances, imposed a sentence accordingly, and mitigating first-degree murder On appellant’s conviction. of death 1999, death 28, formally imposed trial court October and, addition, imposed two consecutive sentences sentence remaining appellant’s incarceration for years’ of one to two motions. post-sentence did file convictions. below, set forth This followed.5 For reasons appeal convictions, of but reverse the sentence appellant’s affirm hearing. penalty matter for a new death and remand the penalty do in all death direct begin, as we We independently reviewing evidence ensure appeals, by convic first-degree murder support is sufficient to 16, 937, A.2d Zettlemoyer, 500 Pa. 454 tion. Commonwealth v. denied, 970, 2444, (1982), 461 103 n. cert. 77 942 3 U.S. S.Ct. (1983). of sufficiency reviewing L.Ed.2d 1327 When evidence, this Court must determine whether the evidence therefrom, trial, when all reasonable inferences derived and Commonwealth as light viewed in the most favorable winner, all of verdict are sufficient establish elements v. doubt. Commonwealth beyond offense reasonable (2000). 1, 859, Pa. A is Bridges, person 563 864 proves first-degree murder where the Commonwealth guilty (1) killed; (2) person being unlawfully a human (3) and responsible killing; for the the accused accused 2502(d); § kill. Com acted 18 Pa.C.S. specific with intent (2000). 269, 1280, Pa. A.2d 1283 Spotz, v. 563 759 monwealth byor An is a means of killing “[k]illing poison, intentional willful, wait, or and lying any other kind of deliberate 2502(d). killing.” § 18 Pa.C.S. intent premeditated Specific deadly upon kill from the of a weapon can be inferred use Fletcher, body. v. part vital of the victim’s Commonwealth (2000). Pa. 267 A.2d crime, 9711(e)(4), any § age other lant's al the time of the id. mitigation concerning appel- evidence of the character record lant, 9711(e)(8). §id. 9711(h), jurisdic- § to 42 this Court has automatic 5. Pursuant Pa.C.S. judgment tion to review court’s a sentence death. that, early in the trial adduced at established The evidence David 24,1997, appellant approached August hours of morning Allegheny Randolph Street near the corner Sims *6 together, two walked As the men Philadelphia. Avenue gun. a stolen Sims Sims about heatedly questioned appellant pro- nevertheless sorry.” Appellant I’m sorry, “I’m replied, from As Sims recoiled several times. punch Sims ceeded a “TEC-9” blows, weapon, possibly appellant pulled shouted, “I’ll show and his shirt from underneath handgun, don’t, please, please “no sorry pleaded, what is.” Sims you and weapon pulled aimed the just appellant don’t” as please attempt weapon first to fire the appellant’s But trigger. safety he had not deactivated failed—perhaps because however, fired attempt, appellant mechanism. On second flee, wound- attempted fatally rounds at as he several Sims that cause of him. determined ing The medical examiner wounds; had sustained gunshot was Sims multiple death back, arms. hip, thigh, shots to the and eleven they trial that appellant’s testified at eyewitnesses Three resembling or commit the appellant, appellant, saw someone Castillo, on family Randolph Luis who lived with his murder. Street, from his shooting that he saw the second-floor testified window, shooter, did not whom he recognize bedroom but 9/10/99, at 38-48. as a Rican male.”6 N.T. described “Puerto six or that what sounded like He recalled the shooter fired at 45. gun.” a “small black machine Id. seven shots with brother, Antonio, and Anto- eyewitnesses, Luis’ The other Zlatnik, in front of were outside then-girlfriend, nio’s Jennifer Antonio shooting. at the Castillo home the time from the appellant, recognized that saw whom he testified he argu- a brief multiple fire shots Sims after neighborhood, and a Zlatnik likewise testified physical ment altercation. type times with “some appellant multiple she saw shoot Sims 9/10/99, N.T. at 67-83. She further testified gun.” of machine away at her “real hard” as he walked appellant looked Id. at 73. a statement shooting. from the scene murder, shooter as on of the she described the police night Rican. 6. is Puerto twenty-year-old, light nineteen- to complexioned, Hispanic
male, medallion, with a nose-ring, gold cap. baseball later, Antonio, later, months police presented Several Zlatnik, with a photographic array compiled which had been based upon description Zlatnik’s crime-scene the shooter. Both appellant’s photograph witnesses identified as that of the shooter. evidence,
This all reasonable inferences there- derived from, light viewed in the most when favorable the Common- winner, wealth as verdict supports appellant’s first-degree killed, murder conviction. as unlawfully Sims there nothing support deadly this record that the use of force justified. him was against legally eyewitness testimony The person deliberately identified as the who shot the stated, victim. The “I’ll you evidence show is,” sorry what as drew his weapon, unsuccessfully attempt- he *7 then, it ed to fire attempt, after another shot Sims times, multiple killing establishes that was deliberate. Finally, the fact that shot victim in vital body parts independently jury finding specific warranted the of a intent to kill. claims, however,
Appellant that the was “insuffi- evidence support cient” to the convictions only because the evidence him to linking the murder is what “highly he deems the of Antonio testimony Ap- inconsistent” Castillo and Zlatnik. pellant contends that the is testimony by witnesses’ “tainted” the fact that they implicate appellant failed the murder until months later had they charged after themselves been with serious crimes. argues further numerous inconsistencies as to they whether witnessed the murder while car, house, steps, their or in the rendered their testimony unreliable. claim
Appellant’s challenges weight, not the suf ficiency, weight the evidence. The of the is evidence fact, exclusively all, for the finder of which is free believe evidence, or part, none of the and to credibility assess the Johnson, 384, the witnesses. Commonwealth v. 542 Pa. 668
311 (1995). 97, Questions concerning A.2d 101 inconsistent testi mony and of the wit improper go credibility motive 611, 608, 575 Boxley, nesses. Commonwealth v. Pa. 838 A.2d (2003). This Court cannot its for judgment 612 substitute of the on issues Commonwealth v. Pronko credibility. skie, (1982). 245, 1203, 1206 498 Pa.
Appellant cites this Court’s decision in Commonwealth (1976), Farquharson, v. 467 Pa. A.2d 545 354 will guilty that a verdict not stand a wit proposition where is testimony contradictory incapable ness’s so as to be Farquharson reasonable reconciliation. The Court indeed noted that “where evidence offered a verdict of support is so unreliable as guilt contradictory any to make and/or pure conjecture, may verdict based thereon be such a 354 permitted finding.” return A.2d at 550 (citing Bennett, Pa.Super. Commonwealth v. A.2d (1973)). But differences the accounts of Antonio Castillo Zlatnik contradictory that were are not sufficient to testimony their conjecture render mere or render unrelia ble. While testimony their somewhat on the question differed they whether were near car or front of the house when they shooting, saw the it was consistent as to the crucial itself, i.e., surrounding events the shooting shot times multiple argument Sims after a a physical brief altercation which during pleaded Sims had in vain for mercy. Moreover, testimony largely their corroborated Luis Castillo who also witnessed but the murder could not identify Thus, Farquharson the killer. inapposite. *8 verdict,
In reaching the the was weigh free to reject questions the trial eyewit- counsel raised concerning As credibility. nesses’ we will disturb not the jury’s credibili- determinations, ty claim fails. See Commonwealth v. Simmons, 211, 621, (1995) (assertion 541 662 Pa. A.2d 630 that inconsistencies rendered not witness credible meritless be- determine). cause credibility is claims, Turning to appellant’s other initially note that appellant allegations raises several of ineffective assistance of
312
of trial.
penalty phases
at
and the
guilt
trial counsel
both the
rule
abrogated
procedural
requiring
recently
This Court
counsel’s
previous
counsel to raise claims of
ineffective
new
new counsel
opportunity
appointed.
at the first
when
ness
Grant,
(2002).
726
In
Pa.
v.
Commonwealth
Grant,
providing
rule
that
general
this Court announced a new
of ineffective assis
“should wait to raise claims
defendant
Appellant Specifically, claim. he argues ineffectiveness ror/counsel impermissible erred” when he elicited attorney “district then improperly from Antonio Castillo and reputation evidence closing his exploited during argument. Appellant the evidence examination where he asked cites to the direct why picture had not when appellant’s Castillo he identified photographic array night him with police presented the murder: they you pictures, Prosecutor:] When showed
Q. [The you picture? did [appellant’s] see Yeah, I did. A. [Castillo:] Bomar, (2003), we Pa. A.2d 831
7. In Commonwealth v. Grant, recognized were exception an where ineffectiveness claims below, hearing in the was held at which trial counsel raised testified, court passed upon court claims. does not the trial Bomar appellant raise claims apply here because did not his ineffectiveness below. relating 8. one claim counsel ineffectiveness raises presenting an guilt-phase: trial counsel was ineffective for whether witness, Torres, Gregorio was not alibi demonstrate addition, appellant present In raises several time of crime. penalty-phase involving ineffective of counsel. claims assistance relief, grant penalty-phase are moot. light of our these claims hybrid Finally, two trial ineffectiveness raises error/counsel claims, discusses, which this Court infra. *9 that’s picture, you police saw his did tell the Q. you When you the man saw? No, I
A. didn’t. not?
Q. Why one, know, get I didn’t want to involved. you ‘Cause for A. reputation. I knew about his 9/13/99, during that Appellant
N.T. at 13. further notes closing arguments reminded the guilt-phase to initially identify appellant that Castillo had refused “Antonio knows reputation: [appellant] because he knew of his reputation. from knows his Antonio did the street. Antonio 9/14/99, objec- at 75. No get not want to involved....” N.T. tion to was raised either these events. with
Appellant testimony, together contends that Castillo’s to prosecutor’s closing argument, highly prejudicial him that had a implied reputation. because he violent also should an in Appellant argues “there have been probative limine to effect hearing [of determine whether testimony] outweighed any prejudicial aspect.” Castillo’s Appellant argues Brief of at 42. further that his objected trial counsel should have to both to appel- references “reputation.” lant’s The Commonwealth counters was a fair emphasis Castillo’s fear response to defense his suggestion opening counsel’s arguments that closing ap- Castillo’s belated identification pellant argues was not credible. The Commonwealth also counsel cannot be “tacti- deemed ineffective because he made why delayed cal use” of Castillo’s explanation identify- he Thus, ing appellant. counsel that Castillo’s belated suggested only identification of occurred after he was trou- with favor. police seeking curry ble and because he was object would
Appellant’s failure
these references
ordinarily
this claim
as a claim of trial
render
unreviewable
302(a). However, given
court error. Pa.R.A.P.
that appellant
abrogated
capital
filed his brief before this Court
the direct
Freeman,
v.
appeal relaxed waiver doctrine Commonwealth
(2003),
573 Pa.
Appellant right process next prosecutor improper undermined when the made several inflammatory during guilt phase closing his argum statements claim, that reviewing appellant’s prose ent.9 we note cutor, counsel, must to his present argu like defense be free Miles, logical vigor. ments with force and Commonwealth v. (1996). 500, 1295, 545 Pa. A to grant 681 A.2d failure objections in to response by prosecu relief to the comments a- tor will not constitute error reversible “unless unavoidable of such prejudice jury, effect comments would be' to forming hostility their minds a fixed bias and toward the objec such that they weigh defendant could the evidence tively Copenhe and render a true verdict.” Commonwealth v. (1998) (citations omitted). 553 Pa. fer, Appellant satisfy fails to his burden here. statements, objectionable citing specific appel-
Without cursory lant notes manner several instances which the supposedly suggested that appellant had burden instance, produce evidence. In first such told that alleges “the the defense had Appellant object 9. concedes that counsel failed to to some of the alleged prosecutorial Ordinarily, instances of misconduct. these sub- Nevertheless, claims would be waived. we will review them under the relaxed waiver rule. present an obligation police testify. officers” Brief of at 50-51. Preliminarily, appellant’s we note defense rested pri- marily upon challenges eyewitnesses’ credibility. As effort, part of this questioned defense counsel whether the had Zlatnik police presented Ms. with a photographic array crime, night which included appellant’s photograph, but that had to identify appellant. she failed no There was Indeed, evidence that this event occurred. Ms. Zlatnik testi- any fied she was not shown photographs on the night Nevertheless, summation, the murder. his defense counsel suggested that the Commonwealth was obliged produce witnesses to his bald negate contrary assertion:
If Jennifer Edwards really [Zlatnik] didn’t look at photo- [the graphs, present Commonwealth’s] it’s burden to that, certainly evidence way about because we have no *11 proving it. detectives who [The there the night were] Jennifer, shooting say reason, the and could for some some reason can nobody explain, for some reason common exist, sense tells us not does for some reason when Jennifer oh, says, Edwards I’d recognize that man if I him again, saw for some reason was not shown photographs. Their burden. 9/14/99, added). N.T. at 44-45 (emphasis prosecutor The responded by noting the impracticability of producing every possible negate witness to speculation: defense
Now, us, when defense this, counsel tells and remember why ..., didn’t I call [those you detectives] would like be here with me for next the three months? Because it’s like judge the said. It’s evidence, the answer that is not the questions.
... if you So want to be here for the rest of I your have life, to call every detective to testify. You know what the sergeant to. testified You know why he’s here. Because he me, you here, asked would bring sergeant the and I brought him and he testified.
Id. at 66-67. do not prosecutor’s
We believe that the comments here improperly suggested appellant had burden of or proof event, not any they to the extent that were
production. counsel, to trial we note that the trial court response fair objection; jury instructed appellant’s sustained disre- comments; specifically instructed gard required was not jury present evidence Thus, in his this claim prove anything or own defense. fails. (“[A] 757 A.2d at Bridges, presumed See have court.”) (citation omitted); trial followed instructions Travaglia, 541 Pa. Commonwealth v. (“The
(1995) in our law is that follows presumption instructions.”). vein, alleges
In a that the similar not improperly “ask[ing] why present acted the defense did prison.” as to who contacted Ms. Zlatnik at prison log closing argument, at 51. In his defense Brief challenged testimony counsel the truthfulness Zlatnik’s had any that she had not had contact with Antonio Castillo while that Castil she was incarcerated.10 The countered lo and Zlatnik had not communicated while she was incarcer contrary suggestion ated and that counsel’s was defense supported by any evidence: you talk about communicating, [Castillo] When Jennifer jail. get think of was in couldn’t hold [Castillo] this.' She have, very simple, ... could it of her [Defense Counsel] log notified allowed to prison bring who’s bring write. didn’t that because he was on list. He your under nose. He’s on Lord knows would have been list. on the list.... He wasn’t. And that’s He’s letter *12 if you you stay see them. But want to why didn’t three me, every piece months of a with I have to year bring then . paper in the world. 9/14/99, objected, Appellant immediately N.T. at 72. court requested request a side bar. The trial denied the bar, objection. side but sustained the charges robbery shortly after 10. Zlatnik had been arrested on Sims’ appellant’s murder and was at the time she identified she incarcerated photograph. appellant obliged claim that did not prosecutor The Rather, that there simply argued he prison log. introduce the claim support defense counsel’s was no evidence record incar- Ms. Zlatnik while she was that Antonio had contacted by of proof did not shift the burden cerated. The Ms. Zlatnik with impeached that could have noting had theory, that his defense any prison supported records event, in any sustaining such In addition records existed. jury objection, subsequently trial court instructed the that proof burden of the Commonwealth bore the produce any was not evidence. Since required trial court’s instruc- presumed to have followed the tions, fails. Bridges, argument see 757 A.2d at prosecutor improperly also
Appellant avers of Zlatnik criticized defense counsel’s cross-examination Appellant not of record. cites the referring evidence closing argument following portion about implied which he that defense counsel misled the of Zlatnik’s statement: police the content statement.... Remember how the [T]hink Jennifer’s her], you told them attorney kept saying defense [to him, said, objected. you could and I I can tell you identify I page, me the and he wouldn’t tell me. And asked the could him to did. judge, you page. tell tell me the He never I I’ll if I’m pages—and Because it’s three know be corrected if him wrong—she question, you was never asked that saw again you identify question. could him. Never asked that fact, said, now, I him in his she never saw before. So It’s closing he.kept saying that. It’s here. not. He said, it. it’s you judge wants to believe Just like the answer, question____ [not] 9/14/99,
N.T. at 77-78. Rather, argument. appel- does to focus his little that, police lant Zlatnik’s statement simply contends because evidence, had not into formally been introduced should not counsel’s cross-exami- suggested have defense nation was with that statement. Zlatnik made inconsistent
318 cross-examination, however,
clear on police her statement did could identify appel indeed include the assertion she Thus, lant if given opportunity. the we fail to see how the prosecutor’s remarks much responsive improper, were less they how the prejudiced defense.11 that, Finally, asserts during several occasions closing argument, prosecutor improperly conveyed his opinion regarding appellant’s guilt. support argu- To ment, lifts statements out of con- Appellant following text. first cites the remark prose- cutor: “This very simple is a case. did it. [Appellant] They street, saw him and him Antonio knows from the Antonio knows his Id. reputation....” at 75. then cites an instance in which prosecutor urged to find appellant guilty degree of first “Don’t [appellant] murder: let And, it.” at get away finally, appellant with Id. 79. argues conveyed that the his personal opinion when he doubt, argued: “So look at is no [appellant], because there look at him you looking something you because are don’t someone, day, see a man who kills him every butchers for no good reason....” Id. appears referring following
11. The to have been exchange during defense counsel's cross-examination Zlatnik: you again, you [Defense You said if saw the man would Counsel:] recognize him? [Ms. Zlatnik:] Yes. page? [The That's what Prosecutor:] just question, The Court: I don't know. That's and she's answered it. Yes. Okay, judge. [The Prosecutor:] impeaching The Court: He’s her with not that. Judge, just question I [The wanted to see the and the Prosecutor:] answer here. That’s all. is, page please, The Court: Tell him what can move on to mean, something asking question relevant. I his about relevant, page your questions. page. is not him Tell honor, couple along I questions [Defense:] Your have a other line. prosecutor], The Court: That’s fine. Tell [the referring page. [Defense I’m not to a Counsel:] Okay. looking I'm [The Prosecutor:] Because for it. I don’t see it. right. The Court: Good. All 9/10/99, N.T. at 114-15. A prosecutor personal opinion should not offer his See, guilt accused. Commonwealth v. e.g., as to Peterkin, (1994); 538 Pa. A.2d see also ABA *14 (“The 3-5.8(b) for prosecutor Standards Criminal Justice not her or express personal opinion should his or belief as to truth or of or or falsity any testimony guilt the evidence the of defendant.”). However, the remarks the sub judice did not constitute impermissible personal opinions. Rather, context, merely viewed the asking facts, guilty to find on the which the based he Further, accurately did im summarized. the not ply special knowledge that he had or innate ability to guilt Thus, his upon position determine based as prosecutor. remarks did not jeopardize appellant’s right the to be tried on the basis of solely presented jury. the evidence Cf. 243, 310, (1977) Commonwealth v. 474 Pa. 378 A.2d Toney, 312 (prosecutor’s improper supported remarks where not by any evidence).
Appellant next claims the trial court erred denying motion to suppress his the photographic arrays shown to Antonio Castillo and Zlatnik and “all evidence” related to their of appellant’s photograph. Appellant identifications argues photographic arrays suggestive that the unduly were because only selection, he was the person “bald” included and thus, his likeness among stood out the other photographs. No is due. relief
A photographic
unduly
identification is
suggestive
if,
totality
circumstances,
under the
of the
the identification
creates a
procedure
substantial likelihood of misidentification.
Johnson,
384,
Commonwealth v.
542 Pa.
(1995);
167 Our of in addressing standard review a challenge suppression to a trial court’s denial of a motion is limited to determining whether the factual findings supported by are and legal record whether the conclusions drawn from those Bomar, facts are correct. Commonwealth v. 573 Pa. (2003). Here,
A.2d the trial court reviewed the and photographs determined that the photographic arrays were identifications unduly suggestive were at 4. Slip. op. admissible. Because reliable therefore record, find no supported trial court’s conclusion of discretion. abuse first arrays
Two are at issue. The photographic presented Castillo’s police which detectives photo spread, murder, of of consisted black night on the review identify did not Hispanic males. Castillo photographs white photo murder. The second night later, eight more than months spread, which Castillo reviewed Hispanic males eight photographs young color consisted was a ran nose-rings. photographic array with This latter Zlatnik’s dom, upon based computer-generated compilation i.e., shooter, young, light- description crime-scene male, se nose-ring. with Castillo Hispanic complexioned, *15 without without hesitation and appellant’s photograph lected so, that doing from the he noted prompting detectives. photograph hair had in the appellant had shorter than he had him murder. After Castillo then night to on the of the shown in identify appellant’s photograph photo the first proceeded well, deliberately that had array explained as he he declined appellant of the murder he knew night do so on the because 10. of him. Id. at neighborhood from the and was afraid later, police photo weeks showed Zlatnik the second Several array. without appellant’s photograph selected graphic She from prompting hesitation and without the detectives. record, trial in this the court was correct upon Based in the appellant’s photo baldness second finding supposed not a substantial likelihood misidentifica- array did create Indeed, neigh- knew from actually appellant tion. Castillo the two separate photo and identified his likeness in borhood had than had hair appellant apparently which more arrays—one Also, murder, the Zlatnik told night other. the gave at the and them police got good that she look shooter At description. no time did mention the shooter’s detailed she hair; fact, that he was hair, police or lack of she told shooting. at time of Because wearing cap a baseball tainted, were not the out-of-court identifications that the not derivative assertion appellant’s we need address sup- should have been in-court identifications Johnson, (having at 103 conclud- supra, as pressed well. See appropriate, was photo-array ed that out-of-court identification that witness lacked inde- argument Court need address identification). Accordingly, for in-court pendent basis claim fails. claims, including penalty-phase also raises several
Appellant penalty-phase a claim that the summation Because we conclude improper prejudicial. relief, need not misconduct claim warrants prosecutorial claims. reach the other alia, ignored argues, inter factors and un- statutory mitigating/aggravating
enumerated a fair jury’s ability to render verdict when he dermined urged message” by sentencing appellant “send a death: . you people has shown that he hurts again again
He to, has because he likes and he want he earned you think of the death right to be on death row. When penalty, messages a mes- there are to be sent. There’s death, sage saying, that, got you on the street look at he that, rules, you honey, why you see that’s live so up they’re don’t end like that. Because in these bad neighborhoods.... message prisons. also You send in that and talk and can you peep whisper, you When bus say, just inmate penalty. Maybe you’ve got death one death, serious, well, I sitting going, got there he this is don’t *16 want to that. up Maybe your penalty you’ll end like save to him guy, straight. one scare added). 9/17/99,
N.T. (emphasis prosecu- at 24-25 the When a completed closing argument, appellant tor his moved for mistrial that arguing, among things, prosecutor’s other the a trial court message” prejudicial. “send statement was The to denied the motion. Counsel then asked the trial court “tell jury they everything prosecutor] should disregard [the the request specific said.” Id. at 31. did not caution- ary regarding message” instruction the “send 322 instruction;
argument, and trial court no such the issued however, in charge concerning jury’s weighing its circumstances, trial aggravating court adverted to the as follows: argument terribly you your
It’s that also understand that in important aggravators, things evaluation of that’s those that the Com- circumstances, says you monwealth are should aggravating you your findings follow the law and should not base on the committed, that possibility any might future crimes be you might should not sentence him because one feel message community, is a that there need to send you just nor him should sentence because other prisoners message. need some added). Id. at 64 (emphasis argues prosecutor merely
The Commonwealth employing oratorical license and impassioned argument that a doing
323 5.8(d) (“The prosecutor argument should refrain from which its jury duty would divert the from to decide the case evidence.”). is a ac
Although “gray separating there sometimes zone” has ceptable improper advocacy, categorically from this Court prohibited prosecutorial arguments certain that we have See, extremely inherently deemed Com prejudicial. e.g., (1991). Chambers, monwealth v. 528 Pa. Chambers, Thus, that a Court held reli writings ance the Bible or other as upon religious indepen an dent law death supporting imposition source a 644; se. penalty per Spotz, reversible error Id. at see also n. 24 (noting A.2d at 1165 proscription Cham source, bers is against “reliance as a upon indepen Bible law, death”). Pennsylvania dent of a returning verdict of In so holding, appeal Chambers Court noted that such an to Biblical bases for a returning death verdict constituted a attempt destroy objectivity deliberate and impartiality which Moreover, could not be cured. noted that in invoking religious in support reference of the death penalty, reached outside the law of Com monwealth: and, therefore,
Our courts are not ecclesiastical courts there is no religious reason refer to rules or commandments support imposition of death penalty. Our Legislature has a Death Penalty enacted which carefully Statute cate- gorizes all the factors that a jury should consider deter- whether mining penalty the death is an appropriate punish- and, if ment a penalty of death is out by jury, meted must be because the satisfied the substantive law of the Commonwealth requires imposition, its not be- cause of some other source law.
Id. at 644.
It is notable that per holding upon the Chambers se followed series of cases which this “narrowly Court tolerated” references, deeming Biblical them to be on the limits oratorical flair but cautioning such “a references were dangerous which we practice strongly Id. In discourage.”
Chambers,
that,
cautionary
our
been
teaching having
we noted
references,
such
longer
would no
tolerate
ignored, we
*18
indeed,
“reversible error
se”
per
would deem such references
Id.
“subject
disciplinary
violators to
action.”
might
and
also
expressed
regarding prose
has
similar concerns
This Court
to return a
arguments
jury
that exhort the
sentence
cutorial
until now
Although
to “send a
message.”
death
order
a
similar to that
per
prescription
not
se
explicitly adopted
have
Chambers,
fair to
in the
say
forth
it is
we have been
set
scrutiny
close
for some time.
stage
“narrow toleration” and
has
reminded the bench
bar
repeatedly
This Court
particu
are
a
exhortations in criminal trials
message”
“send
See, e.g.,
be avoided.
Common
larly prejudicial
should
(“[i]t
539,
(1987)
334,
A.2d
Crawley,
v.
514 Pa.
526
344
wealth
a
a
to
extremely
prosecutor
jury
to exhort
prejudicial
system
a
to the
or
message
judicial
a death sentence as
return
Hall,
269,
officers.”);
v.
see also
549 Pa.
its
Commonwealth
LaCava,
(1997);
190,
v.
Pa.
701 A.2d
202
Commonwealth
542
221,
(1995).12
160,
237
666 A.2d
notes, in
older
correctly
As the Commonwealth
some
our
contexts,
cases,
that,
this
in some
a
Court determined
“send
Peterkin,
be
649
message” arguments may
tolerable. See
DeHart,
DeHart,
129;
We believe knowledge ordinary public a “matter of common based biased experience,” prejudiced human would have or evidence, objective or jury weighing hindered an of the explicit di- especially considering attorney’s the district State, (Fla.1996) Campbell ("Message 679 So.2d 12. v. Cf. appeal community” arguments "an are obvious emotions State, jurors”) (quoting fears of the Bertolotti v. 476 So.2d (Fla.1985)). “solely and of death a verdict to return jury rections based may [imposed], be law indicates as the exclusively case, premedi- a that it involved of this circumstances on the crime, a to a serious of a witness tated, killing intentional felony.” omitted). (footnotes and citations at 958 454 A.2d
Zettlemoyer, that, a while concluded in Peterkin this Court Similarly, message to send may exhort message to send direct urge them judicial system, may he There, asked at 129. the defendant. engaged conduct about the message out a “[s]end table, at that [that sits passively as he defendant] [the Id. In civilized men.” among condoned cannot be conduct] his message” from similar “send this remark distinguishing Crawley, see improper, had that this Court deemed arguments *19 comments, prosecutor’s that the A.2d at we noted a to send context, merely jury asked the in had viewed in Indeed, very that his we noted to the defendant. message said, what defendant] “[t]ell [the next sentence the it, did and for the reason did, you did how you you when must die.” Id. you you did judice: in the case sub presented is not
The Peterkin issue a message, to send did not exhort the here also situation Zettlemoyer/DeHart Arguably, appellant. issue, concerning not an argument as this was strictly is not would We penalty. of the death general “deterrent effect” distinction, acknowledge We however. overstate arguments effect” are relat- message” “send a and “deterrent may factor that such an external they suggest ed in that or of life jury’s a role in the determination properly play death. event, Zettlemoyer since many years
In
in the
any
admonished
decided,
strongly
has
DeHart
this Court
were
jurors to use their
exhorting
from
prosecutors
refrain
community
judicial
or the
message”
verdict
“send
A.2d at 344. This admonishment
E.g., Crawley, system.
is at
sentence of death
has
when the
particular significance
stake.
In contrast
guilt,
to the determination of
which usually
objective
depends
relatively
findings, the decision as to
to impose
whether
a sentence of
depends upon
death
weighing
specific
aggravating
mitigating circumstances
that may
subjective
involve
considerations.
generally
See
White, Curbing
Welsh
Prosecutorial Misconduct
in Capital
Cases: Imposing
Improper
Prohibitions on
Trial
Penalty
1147,1149 (2002).
Arguments,
Indeed,
39 Am. Crim. L. Rev.
in
Crawley, this Court
that prosecutor’s argument asking
noted
message
judicial
to send a
system by returning
is “extremely prejudicial”
sentence
death
a jury’s
because
determination must be
solely upon
based
the evidence of
circumstances,
aggravating
mitigating
upon
and not
an
Nevertheless,
appeal.
external emotional
While Court approved has statements concerning jury sending with their “messages” verdicts cases, exhortations, in criminal such made either the defense, or the urge essence the jury to *21 only a on the duty to decide matter their sworn ignore law. applicable in and the presented facts evidence proper parties in criminal matters all advise Accordingly, any refrain from court in the Commonwealth to before in future. such exhortation added). (emphases at 203 Id. culminated in the of which
Perhaps, as
line
decisions
Chambers,
in
too
proved
this
Hall
Court’s clear directive
in
instance,
only by
was
In this
the directive
observed
subtle.14
and
breach,
inexplicably
direct
prosecutor
extended
as
an
in
to
impose
penalty
to
the death
order
jury
exhorted the
ly
to
in
people
on the street and
message
people
a
to
send
irrelevancy
so
to such an
was
plea
The
external
prisons.
to
inviting
it culminated
direct that
straight”
so as
“scare
death
sentence
was no role
considering murder. There
might
who
be
others
improper com
argument
such an
here. The
jurors
ignore
duty
their sworn
effectively invited
ments
con
presented
facts
exclusively upon
matter
decide the
statutory aggravating
of
cerning
weighing
specific
LaCava,
237;
see
circumstances. See
mitigating
(“[I]f
Chambers,
is
penalty
This well appreciates Court ulti- cases, and cases where the particularly criminal trying are recognize is also that there penalty mate involved. We of a trial which are occur the course many things trial or of counsel beyond anticipation the control witnesses, jurors acting or spectators inappro- as judge—such subject far one of a trial which is more aspect But priately. of this attorneys—officers is control the behavior rational Indeed, recently Superior similar instance 14. Court addressed ignored disapproval arguments this Court's which the message.” Poplawski, exhorting jurors to v. "send Commonwealth arguments (Pa.Super.2004) (prosecutor's A.2d 328-29 guns community bringing were into referendum on into turned case LaCava). improper under Hall and absolutely indispensable professionalism whose Court Lawyers justice this Commonwealth. fair administration *22 of, the law by, and to abide to be aware obligation have an are they in which conduct of the matters the governing in Hall was not directive unambiguous This Court’s involved. officers, witnesses, jurors, or or police conduct of aimed the at counsel. staff, directly it was aimed judges: or or court which Moreover, stage of trial over it a matter concerned i.e., it control: what unique, premeditated have indeed counsel a this Court issues say jury. to When they is intend we stage, at that permissible what is concerning directive In that directive. by to abide officers of the Court expect Hall, in but the last in which was explicit of our directive light very concern over this grave expressing a series decisions least, say to the dismayed, are type argument, in this prohibited of such rhetoric lawyer’s use government case. ultimately in trial this case judge are aware that the
We
it
not” sentence
jury that
“should
informed the
little confidence
to
a
But we have
message.
order
send
prejudice resulting
to
charge
adequate
such a
remove
inherently
an
employ
preju-
to
prosecutor’s
from the
decision
off-limits.
that had
been deemed
argument
specifically
dicial
circum-
aggravating
found two
ultimately
The
this case
circumstances, and thus was re-
and two mitigating
stances
which
factors to determine
quired
weigh
competing
to
instance,
In
an
the fact
predominated.
ones
such
of a
a
external effect
argued
had
collateral
to others which
message
verdict would be to send
death
as
factor which does
exist
might prevent future crimes—a
have
circumstance—may
well
proper statutory aggravating
role,
indirect,
juror’s
balanc-
or
at least one
played
direct
(relief
LaCava,
More we conclude as we did in Chambers when with confronted a similar challenge *23 Court’s directives concerning comprises what ar appropriate gument trial, in penalty phase the of a capital that penalty phase arguments requesting that the send a message with its verdict are prejudicial per se. reach this We conclu sion in part of inherently prejudicial because the of nature the remarks, in part as a of matter our supervisory authority Pennsylvania over attorneys. We do not reach the conclusion lightly. The inappropriate argument at issue is here similar to that at issue Chambers. argument goes The very task, core of penalty phase jury’s injecting an improper external of element favor death. As this Court has made clear in LaCava, the decisions culminating Chambers and is essential arguments made favor of the ultimate penalty be confined to those statutory aggravating circum stances which are specifically charged and which thereby only serve as the appropriate basis for a verdict of death. Given the critical balancing process required of penalty phase jury, the important jurors individual role of in this assessment, inherently prejudicial argument, nature of the and the fact that lawyer’s the content of a is argument easily control, within his will no longer with proceed case-by-case assessments in this arguments area. Such are to be avoided peril is to fall upon defiance who party would flout the rule. reasons,
Accordingly, for the this affirms foregoing Court convictions, but appellant’s vacates the sentence death and this for a new sentencing hearing. remands matter Jurisdic- relinquished. tion is Chief ZAPPALA did participate
Former Justice not in the decision of case. concurring EAKIN a in which opinion
Justice files Justice joins. NEWMAN EAKIN, concurring.
Justice I agree here crossed the line. Most “mes- sage sending” statements indicate advocate lacks a better sought; reason for the verdict a solid not require case does extra-judicial vagaries resort to such commentary. social All another, send peripheral messages verdicts kind or one but consequences such collateral are not a for a proper basis jury’s decision and are not for argue. hence counsel to
However, I per se unnecessary. believe rule unwise and This may be similar in concept invoking deity, but it is not on a with par religious hyperbole, nor is the so problem pervasive as to beyond be the leash existing jurisprudence. will, A per necessity, litigation, less, se rule lead more for any now words may somehow be interpreted as implying request message will be indeed, challenged; must now challenged pain be of inef- fectiveness.
It is for improper likewise a defense counsel ask for sent, message to be but is no meaningful there curative sanction in prosecution the immediate trial. The right has the of fair that response—may a response request include for a contrary message? by Can curative instruction be asked for well; defense counsel who thinks penalty phase gone has cure, is a penalty phase only objection new or may to a per se of rule this Court be waived? undoubtedly We will have to face questions these and a host of variations in not too distant future.
332 fluid flow addressing extemporaneous
Per
rules
se
they may
advocacy
appear.
trial
are
the cure-all
of
Hence,
is
from fixed
away
trend of the criminal law
totality
of the
evaluating error and toward
recipes for
See,
v.
Florida
e.g.,
for review.
perspective
circumstances
(1991)
Bostick,
429,
2382,
111
I this evolution wise and believe courts to present rule Our tests allow per new se is neither. individually. Allowing flexibility situation address each bright-line creating excep- then creating rules preferable arises; I variation the facts the inevitable tions when in a will our share very years, few have suspect se as well. exceptions per rule *25 but join reversing penalty imposed, I Accordingly, se rule as per of a pronounced cannot with the creation agree my colleagues. joins. Justice NEWMAN A.2d 486 Michael re NOMINATION PAPERS OF J. CAVANAGH Assembly Representative in the for the General District.
51st Appeal Cavanagh. of Michael J.
Supreme Pennsylvania. Court of Sept. 2004. Submitted on Briefs Oct. 2004. Decided Cavanagh, Michael for Pro Se. B. Burkley,
Kenneth for Robert Bowers. CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, Before EAKIN, SAYLOR, BAER, JJ.
ORDER PER CURIAM. NOW, October, 2004,
AND
this 27th
day
the Order of the
Commonwealth Court is affirmed.
notes
afforded more latitude
so
penalty phase.
The Commonwealth also cites two cases in
that a prosecutor’s
message”
which this Court held
“send a
exhortation was within the bounds of
oratorical
permissible
Peterkin,
455,
flair.
v.
538 Pa.
649
See Commonwealth
A.2d
DeHart,
121,
(1994);
235,
129
Commonwealth v.
512 Pa.
516
(1986).
656,
Finally,
A.2d
667
argues
the Commonwealth
any prejudice
was cured
the trial court’s
instructions
should not
warning
they
sentence
message.
order
send
adversary system
Our
permits
“prosecute
States,
with
vigor.” Berger
earnestness and
v. United
295
(1935).
78, 88,
629,
Nevertheless,
55