*1
Catherine Graci, Pomeranz, Robert A. Har- Philadelphia, Anthony V. Atty. Gen. for Office risburg, ZAPPALA, CAPPY, FLAHERTY, C.J., and Before SAYLOR, NIGRO, JJ. CASTILLE, NEWMAN and THE JUDGMENT ANNOUNCING OPINION THE COURT OF NEWMAN, Justice. HISTORY AND PROCEDURAL
I. FACTUAL on August at trial established The evidence (McLaurin) and a.m., Michael McLaurin 3:00 approximately court- a bench sitting on (Knight) were Knight Donald Philadelphia Housing Project Rosen Raymond of the yard the two men and (Douglas) approached Robert when friends for ten had been The three men money. asked *8 they did Knight responded and McLaurin years. A short time after Douglas departed. money, and any have caliber semiautomatic a small with returned Douglas twice, He also shot him. killing Knight and shot pistol and lower arm. twice, in the upper McLaurin in the immediate patrol on were Pressley and Jones Officers running. McLaurin and saw shots They heard vicinity. down, Knight he and he said them flagged McLaurin When had been shot and told them about shooting. McLaurin was seated police wagon they back and drove one a.m., block to Knight lay dying. where At about 3:07 Officer Riley Temple arrived and took McLaurin to University Hospi- car, tal in a police and McLaurin shooting described the and named as Douglas the shooter. McLaurin also gave Officer Riley the address of Douglas. While still at the hospital, two later, hours McLaurin also identified a photograph Douglas, array from an of photographs, and said he was the man who shot Knight and him.
Although the police had the address of Douglas, they could not find him there. They encountered Douglas on three occasions, time, and he managed escape each because he threatened them with a once a weapon, sawed off shotgun or a small caliber handgun semiautomatic he carried his back pocket. Finally the police apprehended and arrested later, approximately year 26,1981. one on July Knight’s mother also identified Douglas. She testified that four days buried, after Knight was she saw on her toway her, the store. He her, told while laughing he was that he had killed her son and she was going to be next.
The Commonwealth also presented testimony of Richard Pierce, who sent a letter to the District Attorney, which stated that he witnessed shoot Knight. On the witness stand, Pierce seeing denied the shooting.
A jury Douglas. tried Although appeared McLaurin testified at preliminary hearing of Douglas, he did not appear for trial. The Commonwealth made numerous at- tempts McLaurin, to locate but he could not be found. There are allegations that he was in fear from threats he hiding. was The trial court eventually held that McLaurin “unavailable,” and therefore allowed the Commonwealth to read his preliminary hearing into testimony the record. this, Besides the Commonwealth presented evidence that Douglas admitted to Knight’s mother that he had killed her son and threatened to kill her. The Commonwealth also presented the photographic identification of Douglas on the *9 repeated of the of from
morning flights Douglas crime and 1983, 20, police January uniformed officers. On the jury murder,1 Douglas degree convicted of first aggravated as- sault,2 of In possessing pienalty an instrument crime.3 21, 1983, January jury on two phase, aggravating found circumstances, significant had a of Douglas history violent convictions,4 in the of the felony and that commission murder knowingly grave a of Douglas created risk death another circumstances, jury mitigating The no person.5 found and on 23,1983, jury sentenced to death. January Douglas counsel post-trial filed motions. His trial Douglas withdraw, supplemental and new filed permitted counsel motions, including allegations of ineffective assis post-trial Following trial a the trial court hearing, tance of counsel. for a new on granted Douglas’ trial based ineffective request counsel; did other the court not address issues assistance of a based by Douglas. grant solely The new trial was raised ineffective for alleging on a claim trial counsel was prior from a witness that had extracting defense to the appealed Superi- criminal record. The Commonwealth Court, trial. grant which reversed the a new or Court, this which affirmed and decision to appealed then of the court for consideration issues trial remanded Com motions. Douglas’ post-trial in raised but decided (1994). 588, Douglas, v. The 537 Pa. monwealth of the post and denied the remainder hearing trial court held appeal and this followed. Douglas, trial motions APPEAL ON ISSUES II. issues our consideration:6 following raises 2502(a). § 18 Pa.C.S.
1. § 2709.
2. 18 Pa.C.S. § 907.
3. 18 Pa.C.S. 9711(d)(9). §
4. 42 Pa.C.S. 9711(d)(7). § 42 Pa.C.S.
5.
16,
Zettlemoyer,
2. Whether the trial court erred *10 of photograph Doug- that McLaurin identified a testify to las. in McLaurin un- declaring
3. Whether the trial court erred available to at trial. testify the trial court in the Common- permitting Whether erred testimony
wealth to introduce the of McLaurin at the preliminary hearing. failing objec-
5. Whether the trial court in to sustain erred tions to the by prosecutor during comments made the hearing. penalty Douglas
6. Whether is entitled to a new trial because of after discovered evidence.
7. Whether the trial court the allowing erred Common- plead
wealth to a surprise cross-examine witness regarding prior a inconsistent statement.
8. Whether trial counsel was ineffective: calling
a. For Detective Permint as a witness. b. For failing request cautionary to a instruction regard-
ing Douglas’ drug involvement. object c. For to failing to several comments the prosecutor’s closing. failing object charge
d. For to to to jury regard- ing the Commonwealth’s burden.
e. For to failing request jury respect instruction with
to the crimen falsi convictions of two witnesses. object f. For failing prosecutor to when the elicited testimony Douglas myriad had arrests. (1983), required independent this Court is to conduct an review of the sufficiency supporting first-degree of the evidence murder conviction Here, capital in all cases. we find that the to evidence sufficient Knight part body, show that shot in a vital of his which leads specific Knight.
to an inference that kill had the intent to Thus, support the evidence in this case is to the conviction sufficient of first-degree murder.
g. failing object For to to several comments improper
made prosecutor during penalty hearing. h. For not properly interviewing expert witnesses penalty hearing Douglas.
who testified failing object testimony regarding I. For the ef- already forts to find a witness who had been made declared unavailable.
III. DISCUSSION A. Introduction the Statement McLaurin [1] first argues the trial court should not to introduce into evidence have allowed the Commonwealth being while he trans- given by the statement McLaurin being According Douglas, to the after shot. ported hospital any hearsay that statement was and was admissible under rule, the excited utterance exception hearsay including *11 exception. disagree. We as an excited utterance it
For a statement be admissible must be: by person a whose mind has been spontaneous declaration subject emotion caused
suddenly overpowering made to an occurrence, and which that unexpected shocking some witnessed, closely in or just participated person has of that occurrence which phase in to some made reference must be made so near and this declaration perceived, he in as to exclude the likeli- place occurrence both time and in from his part emanated in whole or having hood of its faculties____ first, Thus, that it must be shown reflective sufficiently startling had witnessed an event [the declarant] to render her reflective in of time as point and so close and, second, that her declara- inoperable thought processes startling event. reaction to that spontaneous tions were (1992) 242, 704, Stokes, 712 532 Pa. 615 A.2d v. Commonwealth 326-27, Green, 322, 409 487 Pa. v. Commonwealth (quoting (1979)). Here, gave his statement 371, McLaurin A.2d 373-74 Knight shooting witnessing after only minutes eleven has often held that This Court being shot himself.
425
declarations
in
made
similar circumstances are admissible as
See,
e.g.,
Washington,
Commonwealth v.
excited utterances.
denied,
550,
1018,
cert.
(1997),
547 Pa.
692 A.2d
1022
523 U.S.
1123,
1806,
(1998);
Commonwealth
118 S.Ct.
140
945
L.Ed.2d
v. Thompson,
297,
315,
Common
(1994);
538 Pa.
648 A.2d
324
Penn,
wealth v.
232,
cert.
1154,
(1982),
497 Pa.
439 A.2d
1159
denied,
980,
2251,
(1982);
456 U.S.
102 S.Ct.
B. Identification argues next the trial court erred allowing two police officers to testify that McLaurin identified a photo array from approximately two hours after the shooting because their testimony hearsay constituted that was not admissible any under exception to the rule. hearsay Douglas is mistaken. “It is well-established that certain out- of-court statements explain offered to police course of conduct are on admissible the basis they are offered not for the truth asserted, of the matter but rather show the information upon which the police acted.” Commonwealth v. Hamilton, 612, (1996) 543 Pa. (citing Com 673 A.2d Jones, monwealth v. 442, 451-52, 540 Pa. *12 Yates,
(1995); Commonwealth v. 373, 375-76, 531 Pa. 613 A.2d 542, Palsa, (1992); 543 Commonwealth v. 113, 117, 521 Pa. 555 (1989)). Here, A.2d the identification McLaurin of Douglas’ photograph not offered to prove that shooter, was the but rather to establish the information on which police secured an arrest Douglas. warrant Indeed, McLaurin identified as the shooter gave police Douglas’ name and address seeing any photo- before Therefore, testimony- officers’ the admission of the
graphs.
not
identification was
erroneous.
regarding
photo
Unavailability McLaurin
C. The
Next,
court erred
Douglas argues that
the trial
trial,
testify
provid
at
which
finding McLaurin unavailable
preliminary
McLaurin’s
on which to introduce
ed a basis
Douglas,
the Commonwealth
testimony. According
hearing
because,
to locate McLaurin
good
not make a
faith effort
did
alia,
inside the
not set
surveillance
inter
police
up
did
no
has
argument
McLaurin lived. This
where
housing project
trial court to deter
discretion of the
merit.
It is within the
missing
faith effort to locate
good
constitutes a
mine what
overturned
witness,
court will not be
decision of the
and the
See,
v.
e.g., Commonwealth
of discretion.
absent an abuse
(1998);
Commonwealth
614,
D. Hearing Testimony court should the trial contends next evidence into to introduce allowed the Commonwealth have the de testimony because hearing preliminary McLaurin’s cross-examine opportunity fair a full and did not have fense fails. This claim hearing. preliminary McLaurin at the *13 prior The recorded of testimony a witness who is unavailable at trial be may admitted into long evidence as as the defendant has had a full and fair opportunity to cross- See, e.g., v. Thompson, examine the Commonwealth witness. (1994). 538 Pa. case, In this following exchange took place during McLaurin’s testimony at the preliminary hearing: Now, Attorney: you’re
Defense presently custody, that correct?
McLaurin: Yes.
Defense Attorney: For what? Objection.
Prosecutor: Well, Attorney: Defense are you awaiting trial or you have been sentenced?
Court: As to whether he’s presently custody, objec-
tion is sustained. Attorney: Defense I’ll get it on discovery anyhow. N.T., 1/17/83, at Douglas argues of sustaining prosecutor’s objection denied the defense a full and fair opportunity to cross-examine McLaurin regarding burglary and theft charges him, pending against and therefore the testimony McLaurin should not have been admitted at trial. record, It is however, clear from the that the court sustained the prosecutor’s objection only as to whether McLaurin inwas custody at the time of his testimony. Neither the court nor the Commonwealth precluded the defense from cross-examin- ing McLaurin regarding charges him; pending against rather, Douglas’ attorney simply chose not to pursue that line of questioning. That Douglas’ attorney did not avail himself of the opportunity to cross-examine McLaurin is of no moment no warrants relief.
E. The Closing Argument the Prosecutor
in the Penalty Phase Douglas next argues that trial court in failing erred sustain objections to portions certain prosecutor’s of the penal ty phase closing argument. To claims, warrant relief on such must has prosecutor ‘deliberately- show “the
attempted destroy objectivity the fact finder’ such of the inappropriate ‘unavoidable effect’ comments hostility would be to create such bias and toward the defen *14 true verdict.” Common jury that the dant could render Miles, v. 500, 511, 1295, (1996), wealth 545 681 1300 Pa. A.2d denied, 1187, cert. 520 117 L.Ed.2d 684 U.S. S.Ct. (1997) 429, 439, Carpenter, (quoting Commonwealth 511 Pa. (1986)). 531, 536 515 A.2d
First, Douglas argues following that comment was penalty hearing: and a new improper mandates three or four and not We have been here now weeks one you on his single individual has behalf. And have appeared that it is not if strange, though maybe to admit is rather got on record. has you look back his criminal He been arrested said, in the have eight years. They may 19 times last “Look, Hall City many I’ve been to so times that down anymore.” I don’t want to down guy go 1/21/83, that, Douglas argues N.T. at 862. such comments deciding have from what only jury could served to divert objective on an assessment impose based penalty evidence,: that was so but we conclude the comment cannot rendering a prevent jury as to from true prejudicial Therefore, respect is warranted with this verdict. no relief comment. prosecutor engaged also argues following argument: in making the
misconduct your let con- gentlemen, your follow oath and Ladies say, sincerity, I in all guide. But will your science be put as we just plain put be to death Robert should legs, four who break their misery out their dogs mad them. He will you can do for nothing there is else because be what he is now. always prosecu- 1/21/83, According Douglas, at 869-70.
N.T. prejudicial so dog” a “mad Douglas with comparing tor’s hearing. disagree. a new We require penalty as to prevail cannot on allegation his prosecutor improperly used animal imagery, interjected his personal opin- ion, sought to excite the jury when he argued that Douglas was as beyond rehabilitation dog. as mad Clearly, otherwise, our law is and this Court has cast per aside a se against rule logical analogies merely they because contain references to animals. Miles,
In
this Court
proper
found
a prosecutor’s argument
that likened the defendant and his
co-conspirators
“animals
...
prey
There’s one that jumps up and snaps the neck of
the deer with one bite and another one that
jumps up and
tears the flesh of the slain
Miles,
off with one bite.”
545 Pa.
513-14,
Our Court has held that
long
as
as
there
a reasonable
basis in
comments,
the record for the
will permit
we
vigor-
ous prosecutorial
advocacy. For example,
in Common-
Jones,
wealth v.
591, 617,
(1992)
530 Pa.
*15
upheld
we
a prosecutor’s comments that defendants
a
were
“murdering,
trio,
child-killing, backshooting”
“slaughterers”
and “executioners” because the comments were reasonably
upon
based
the
produced
evidence
Further,
at trial.
we will
only reverse the trial court if the unavoidable effect of the
prosecutor’s comments is to create hostility toward the
defendant
such that
jury
the
is
job
hindered in its
of
Hill,
objectively weighing
the evidence. Commonwealth v.
291,
(1995).
542 Pa.
Moreover,
trial,
this was the penalty phase of the
prosecutor
the
give
did not
personal
a
opinion
guilt
of
inas
Commonwealth v. Lipscomb,
525,
(1974).
455 Pa.
430 evidence, to from the is analogy argue,
animal
phase,
arguments
At the
direct
that the
incorrigible.
penalty
not
penalty
expression
death
is
do
constitute an
of
appropriate
Lester,
(the
“personal opinion.”
supra,
See Commonwealth v.
not
his
where he told
prosecutor
express
personal opinion
did
that life
not an
jury
appropriate penalty
appel
the
crimes). Last,
argues
prosecutor’s
the
lant’s
inflamed
but we cannot conclude that the
jury,
remark
a “mad
Appellant
dog”
as
prosecutor’s characterization
as
its
jury
degree
destroy
ability
to
inflamed
such
Miles;
v.
objectively.
the evidence
Commonwealth
weigh
Cf.
(1992).
591,
Thus,
Jones,
grant
we
no
530 Pa.
F. Discovered Evidence Claim After Next, claims that he is entitled a new 18, 1993, in February to consider McLaurin’s affidavit of trial Douglas of falsely that he accused alleges which McLaurin Knight. him and After discovered evidence shooting killing (1) trial four are met: only prongs a new where merits not have after trial and could been evidence was discovered of reasonable at or trial exercise obtained before (2) not corroborative or merely is diligence; evidence (3) cumulative; solely impeach will be used evidence (4) witness; is of such a credibility of a the evidence likely would that a different verdict and character nature See, e.g., trial Commonwealth granted. if a new result (1994), denied, 485, 435, 448 Wilson, A.2d cert. 538 Pa. (1995). The L.Ed.2d 91 kind 116 S.Ct. U.S. perjury, here, admission at issue a recantation and evidence *16 reliable forms of as one the least often been recognized has See, v. e.g., Commonwealth evidence. after discovered (1985); 802, n. 4 McNeil, 607, 4, 487 807 Pa. 617 n. A.2d 506 384, 342, Anderson, 339, Pa. 353 A.2d 466 v. Commonwealth especially is Indeed, of McLaurin’s affidavit veracity he was at the it, alleges that while In McLaurin doubtful. Douglas to as the him name the police pressured hospital, that However, the fact he had overlooks shooter. McLaurin
431 already immediately named as the shooter after flagging police glaring down the near the scene. This incon- sistency, against Douglas, as well as the other evidence makes it that highly unlikely the outcome of a trial new would be Therefore, different. no relief is due.
G.
Pierce
Cross-examination
Richard
27, 1982,
Pierce,
April
On
Richard
who was then
Huntingdon,
incarcerated at SCI
wrote a letter
the Phila
delphia
Attorney’s
District
Office which he claimed to have
Knight.
seen
shoot
Pierce
met with
subsequently
police
two
prosecutor
gave
identifying
and
and
statements
trial,
Immediately
however,
as
killer.
before
Pierce
his
changed
story and informed the
that
prosecutor
he
prior
would disavow his
statements when
to testify.
called
trial,
stand,
At
before
calling Pierce
the witness
prosecutor requested
sidebar conference and informed the
story.
court
Pierce had
his
unexpectedly changed
The
prosecutor requested permission to cross-examine Pierce con-
statements,
cerning his 1982 letter
court granted
and the
request. Douglas
argues
the decision of the trial
court to allow
the Commonwealth
cross-examine Pierce was
argument
erroneous. This
merit.
lacks
party
change
Where a
is
in its
surprised
own
testimony,
may
witness’
the court
allow
party
cross-
(1)
if
examine the witness
trial
is
testimony:
unexpected;
(2)
(3)
statements;
contradicts the witness’ earlier
Chambers,
harmful to
party’s
case. See
v.
Commonwealth
denied,
370,
96, 109 (1996),
827,
Pa.
546
685 A.2d
cert.
522 U.S.
(1997)
90,
118 S.Ct.
denying Douglas Knight that he shoot witnessed (3) statements; changing his prior contradicted and Pierce’s to case. testimony his was detrimental the Commonwealth’s (1986). v. 123, Brady, Commonwealth 510 507 See Pa. A.2d 66 is no relief due. Accordingly, Trial Counsel Alleged
H.
Ineffectiveness of
nine instances of trial counsel’s
Douglas alleges
claims, Douglas
To
relief
these
ineffectiveness.
warrant
on
claim;
(1)
underlying
that there is merit to the
must establish:
(2)
his
course
that
had no
basis for
or her
counsel
reasonable
that,
(3)
conduct;
probability
is a
and
that there
reasonable
of the
challenged,
for
act or omission
outcome
but
v.
Commonwealth
have been
proceeding would
different.
(1996).
Jones,
161, 175,
1181,
1188
Counsel
546 Pa.
to be
has. the burden
presumed
effective
Marshall,
v.
Pa.
otherwise. Commonwealth
534
proving
(1993).
consid
Additionally, counsel cannot be
regarding drug involvement Next, Douglas argues that trial counsel ineffective failing request cautionary regarding Douglas’ instruction *18 involvement, alleged drug any but to he fails demonstrate an prejudice because of counsel’s decision not seek such instruction. this claim warrants no Consequently, relief. object closing
3. Failure to to the argument phase the prosecutor guilt the of Douglas prosecutor claims that the made im various during guilt phase closing argument remarks his proper and trial failing object that counsel was ineffective for to to them. However, Douglas identify particular not does the comments Instead, problematic. merely that he finds por he describes of the prosecutor’s closing, gives pages tions citations to of the that, of testimony, *19 First, never what proceedings. jury of the the heard penalty for, trial testimony the were and counsel elicited arrests Thus, led to only of the nine adult arrests convictions. four his jury the could have used Douglas the of suggestion (d)(9) aggravating factor finding to a of support arrest record convictions) (a is untenable. felony of violent significant history Furthermore, aggravating found two circumstances jury the Therefore, jury’s even if the circumstances. mitigating and no (d)(9) disregarded, factor were finding aggravating See have been sentenced to death. Com nevertheless would Michael, 1044, 1048 Pa. monwealth (“Where finding factors a mitigating there no and are circumstance, sentencing the court has aggravating least one penalty.”). Douglas impose no to the death discretion but alleged a result of counsel’s as prejudice cannot demonstrate ineffectiveness; hence, no is warranted. relief object prosecutor’s to to the
7. Failure arguments phase penalty counsel ineffective that trial was Douglas argues during the prose- comments made object to various failing to First, penalty phase closing cutor’s he argument. alleges to prosecutor improperly anticipated referred future that, in “If arguing going conduct he not law, his requirements conform conduct of the if he is be on going to assaultive and violent the streets as well as be jail, why should he allowed to live? die Why shouldn’t he 1/21/83, just Knight like Donald did?” N.T. at 863. referring mischaracterizes this comment as to future behavior. fact, prosecutor In referring past was to the behavior of Douglas, specific including jury violent felonies that the heard 1/21/83, (“You about in the penalty phase. See N.T. at 864 called, from have heard the three witnesses [Douglas] you one anything, positive witness would tell has anything, he positive thing ever done. Not one that the defendant has ever any done came from witness who on testified the witness stand. Grabbing 15-year-old his taking glasses and watch and his stabbing father. Grabbing Mr. Feldman and pistol-whipping him and taking and his car keys and $400 ”). high-speed through claim, chase the streets.... This therefore, lacks arguable merit.
Next, Douglas complains that the focused prosecutor on crime of receiving property stolen his argument concerning aggravating circumstances: way up.
He his Gay worked Mr. he off indicated started with receiving stolen I him property, where told it an automobile, and he worked way all up ultimate crime. And got he there hard work and dedication. in fact And he has his life dedicated for the last ten years *20 assaulting stabbing and shooting killing and and rob- bing. 1/21/83, record,
N.T. It is however, 863. clear from the that prosecutor the to receiving referred stolen property only as an introduction to violent the felonies that form for the basis (d)(9). too, aggravating claim, circumstance This lacks argua- ble merit.
436
Finally, Douglas argues prosecutor improper that the his not care about him no ly implied family did because penalty stage: on behalf of at the one testified in jury, you somebody of the would think Members of family Here he is convicted murder would care. asking he degree put
first and the Commonwealth is be member, single, single family anybody to And not a death. they out in the courtroom. Is it because don’t sitting here Apparently care? so. 1/21/83, Douglas alleges that comments
N.T. at 863. these he unworthy sympathy, him as of but fails unfairly stigmatized any as a the comments. prejudice demonstrate result .to no relief is due. Accordingly, experts to interview Failing
8. trial was ineffec next contends that counsel experts, health Drs. for to interview two mental failing tive Camiel, of whom testified Byrne Edwin both Lawrence However, the claim of during penalty phase. testimony their trial conjecture on pure based —because him, assumes Douglas simply turned out to be unfavorable experts not before trial. trial counsel did interview this claim fails. Lacking any support, factual regarding object testimony to the 9. Failure to to locate McLaurin efforts once trial court Finally, Douglas argues that unavailable, trial ineffective counsel was McLaurin declared concerning of evidence object to the introduction failing McLaurin, he fails to to locate but efforts the Commonwealth’s him. object prejudiced how counsel’s decision show Thus, no is due.7 relief Gribble, 9711(h)(3) § and Commonwealth Pursuant Pa.C.S. (1997), judgment o we affirm the must Pa. f we determine that: unless sentence any (i) passion, prejudice or product of death the sentence factor; arbitrary other aggrava- (ii) finding at least one support fails to the evidence (d); or ting specified subsection circumstance
IV. CONCLUSION We have reviewed the claims of we and have found no we affirm Accordingly, merit to them. his convictions and judgment of sentence.8 concurring opinion
Justice files a in which SAYLOR Justice joins. ZAPPALA in
Justice CAPPY and NIGRO concur the result.
SAYLOR, Justice, concurring.
I by concur in the result reached but majority, write address of separately aspects prosecutor’s two closing which, argument view, in sentencing my warrant further discussion.
First, I am not as my colleagues confident as that comments made the prosecutor were both intended and understood to future, refer to Douglas’s past, rather than conduct. Such comments include the following:
Remember Dr. Camiel ... prognosis said for the poor, defendant in fact doesn’t [it] matter whether on in jail or going street he is to act the same way, assaulting people.
If going he is not to conform his conduct the require- law, ments of the if going he is be assaultive violent (iii) the of disproportionate sentence death is excessive or to the cases, penalty imposed considering in similar both the circumstances of the crime and the character and record of the defendant. record, When imposed we review we conclude the sentence product passion, this prejudice any case was not the or of other arbitrary factor. It was based on the evidence had significant histoiy felony put violent convictions and that McLaurin; Knight McLaurin at risk death when he shot and we find disproportionate that the sentence of death is not excessive or penalty imposed in similar cases. (i), § Pursuant to 42 Prothonotary Pa.C.S. is directed to complete transmit the Pennsylva- record of this case to the Governor ninety days. nia within jail, on the as well should why streets as he be allowed to just Why Knight live? shouldn’t he die like Donald did? *22 do to he do He will what he wants do when wants to it and his conduct is not to Whether he is in going change. up Prison, Dallas, or of Holmesburg Huntingdon, on the streets Philadelphia walking Raymond Projects Rosen will the he be always Douglas. Robert to as just plain put put
Robert be death we Douglas should ... is dogs misery nothing mad out of their because there will he you always can for them. He be what is now. else do challenged only has the second Although Douglas specifically conduct, to future it is axio- referring of these comments as a be prosecutor’s matic that of remarks must propriety the context. Common- in by at those remarks looking evaluated (1997). Morales, 400, 516, 424, 528 wealth v. 549 Pa. view, remarks, of prosecutor’s In the overall thrust the my comments as unambiguously predictive which such included is poor” for the was and “his conduct prognosis “the defendant suggest pose not to would change,” to going in future. danger society a to the context, such would remarks procedurally appropriate In a pursuant a instruction to “life means life” entitle a defendant Carolina, 2187, 154, 114 S.Ct. v. South to 512 U.S. Simmons Chandler, v. (1994). See Commonwealth 554 129 L.Ed.2d 133 (1998) 1040, 414-15, (noting that a 401, 721 1046 Pa. A.2d prosecu- the Simmons instruction was warranted though even dangerousness”). “future precise phrase the tor did use However, January in of place trial took Douglas’s because Supreme the Court’s decision years some 11 before U.S. Simmons, failing held ineffective in counsel cannot be trial quoted re- Nor did the Simmons instruction. request themselves, marks, prosecutorial miscon- in constitute and of here, of Where, broaches issue counsel duct. as defense
439 fair prosecutor it is comment for dangerousness, future 447, 463, respond. Griffin, Commonwealth Pa. (1994). I agree Accordingly, majori- A.2d with the Douglas ty that this claim does not entitle relief.
My prosecutor’s second concern with the comment that put dog.” be to death I Douglas should like “mad realize jurisprudence affirming that there is this Court a judgment prosecutor of sentence statements despite likening the Nevertheless, defendant to an animal. it is my view that such rhetoric has no place closing argument capital in a case. Hence, prospectively I per would hold that it is se reversible error for the to employ language. Commonwealth such Be- cause, however, I am unable conclude that the sentence this case was or product bias hostility toward the defendant, I join majority in affirming judgment sentence. *23 joins
Justice ZAPPALA this concurring opinion.
LICENSING, Appellee. Supreme Pennsylvania. Court
Argued Sept. 1998. Sept. Decided notes and concludes “[t]he remarks were obviously objectionable [Douglas] and caused to suffer preju Thomas, noted Commonwealth v. 552 Pa. As we dice.” (1998), type cursory “this legal of discussion woefully event, In inadequate.” any having reviewed the closing argument, entire we find that nothing would cause the against to be jury prejudiced Douglas that they such could not See, Thomas, e.g., a render true verdict. A.2d at 481-83. Accordingly, no relief is due. object 4. Failure to to proof the burden instruction Douglas next contends that trial counsel was ineffec for failing tive to to object the instruction of the court to the that, “if jury the evidence fails to the meet Commonwealth’s burden, then your verdict should be not 1/19/83, N.T. guilty.” added). (emphasis 654-55 to According Douglas, in struction of left jury the court with the impression that they could Douglas guilty find even if the Commonwealth did merit, meet its proof. not burden of argument This has no only because a moments after charge, few the cited the court that, on to jury went instruct “if the Commonwealth has burden, met you not its must not [Douglas] then find guilty.” 1/19/83, Thus, N.T. at 656. trial counsel had no reasonable object basis no prejudice to suffered because object. failure to counsel’s Failing request 5. crimen instruction falsi Next, that for Douglas argues trial counsel was ineffective falsi failing request jury regarding instruction crimen However, Douglas does convictions of McLaurin Pierce. an not decision of counsel not to seek such show Hence, no him. relief is due. prejudiced instruction object to introduction Failing record Douglas’ arrest trial counsel was ineffective argues next object officer failing Douglas’ probation when testified arrests, had nineteen during penalty phase juvenile. Although Douglas ten as nine as an adult and alleges prejudiced that the introduction of his arrest record him, that such evidence affected outcome we do believe