COMMONWEALTH of Pennsylvania, Appellee, v. Robert FISHER, Appellant.
741 A.2d 1234
Supreme Court of Pennsylvania.
Decided Nov. 24, 1999.
Reargument Denied Feb. 7, 2000.
562 Pa. 558
Mary McNeil Killinger, Norristown, Robert A. Graci, Harrisburg, for Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
CAPPY, Justice.
This case appears before the court on direct appeal from a second penalty proceeding. Appellant asserts five claims of trial court error and two claims of ineffective assistance of counsel. For the reasons set forth herein, we affirm the sentence of death.
Before addressing the merits of Appellant‘s claims, we must first clarify a procedural issue. The jury rendered a verdict of death on June 25, 1997, and the death sentence was formally imposed in an order dated July 23, 1997. Appellant‘s penalty phase counsel filed post-sentence motions on July 31, 1997.3
Concurrent with its July 23, 1997 order imposing the death penalty, the trial court filed an order appointing “the Public Defender to represent [Appellant] for purposes of collateral review pursuant to the Capital Unitary Review Act at
On September 25, 1997, Appellant, pro se, filed a pleading which purported to be a “PCRA” petition and a “Direct appeal for penalty phase“. On September 30, 1997, the trial court, having been informed that Appellant had discharged trial counsel, appointed the Public Defender‘s office “to represent the Defendant in the prosecution of his direct appeal as well as all PCRA claims.” On November 17, 1997, Appellant‘s new
The trial court issued an opinion on March 11, 1998 regarding the denial of Appellant‘s claims. Despite its July 23, 1997 order directing Appellant to file collateral relief claims pursuant to the now-suspended CURA, the trial court determined that Appellant‘s ineffectiveness claims of penalty phase counsel were incorrectly raised in a PCRA petition. Indeed, the trial court did not even mention that it had ordered that a PCRA petition be filed pursuant to CURA. The trial court inexplicably reasoned that pursuant to
In his first assignment of error, Appellant contends that the trial court erred in permitting the Commonwealth to proceed on aggravating factor
Our interpretation of the state constitutional prohibition against ex post facto laws has been consistent with the United States Supreme Court‘s interpretation of the federal prohibition, and therefore the analysis of Appellant‘s federal ex post facto claim encompasses his state claim. Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313, 1317 n. 7 (1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1389, 128 L.Ed.2d 63 (1994).
In 1798, the United States Supreme Court defined an ex post facto law as:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798).
More recently, the United States Supreme Court stated that in order for a law to violate the ex post facto clause, “a law must be retrospective—that is ‘it must apply to events occurring before its enactment‘—and it ‘must disadvantage the offender affected by it’ [citation omitted] by altering the definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (citing Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990)). However, the Court has also determined that the Constitution does not prohibit every retrospective law that alters a party‘s situation to his disadvantage. Young, 637 A.2d at 1317 (citing Collins, 497 U.S. at 43–44).
Appellant argues that the application of section (d)(15) during the 1997 penalty phase hearing aggravated the crime; increased the punishment from life imprisonment to death; and disadvantaged him by making him liable to a penalty to which he was not liable prior to the enactment of the legislation. We cannot agree.
We previously addressed the retroactive application of an aggravating factor in Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993). In Zook, the appellant was convicted of first degree murder and sentenced to death pursuant to
The instant case presents a similar situation. The newly enacted provision at issue here,
The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.
Section (d)(15), which was the aggravating factor found by the sentencing jury in the instant case, states:
At the time of the killing, the victim was or had been a nongovernmental informant or had otherwise provided any investigative, law enforcement or police agency with infor-
Appellant claims that reliance on Zook is misplaced. He contends that section (d)(5) and section (d)(15) are not the same because the elements are distinct, the conduct addressed by each factor is distinct and (d)(5) is more difficult to prove than (d)(15). We disagree, and find that a substantial similarity exists between these two factors.
Section (d)(5) requires proof of the following elements: (1) the victim was a witness to a murder or other felony committed by the defendant; (2) the killing was for the purpose of preventing the witness’ testimony against the defendant in any grand jury or criminal proceeding involving such offenses. In interpreting this aggravating factor, we have determined that it encompasses the killing of a potential witness, even when there is no criminal proceeding pending at the time of the murder, if the killer‘s intention to eliminate the victim as a potential witness is established through direct evidence. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929, 937 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991).
The elements of section (d)(15) are substantially similar to those in section (d)(5). First, section (d)(15) requires that the victim was a nongovernmental informant or had otherwise provided any investigative, law enforcement or police agency with information concerning criminal activity. The victim may or may not be a witness and the criminal activity may or may not be a felony or murder. Second, (d)(15) requires that the defendant committed the killing or was an accomplice to the killing; in (d)(5), this element is presumed. Third, (d)(15) requires that the killing was in retaliation for informing or providing information concerning criminal activity. This factor is substantially similar to the (d)(5) factor that the killing was for the purpose of preventing the witness’ testimony
As in Zook, the same testimony was presented to prove the existence of both aggravating factors (d)(5) and (d)(15) in Fisher I and Fisher III, respectively. For example, Detective Salamone testified that the victim believed that Appellant had harassed her because she was providing information to the authorities. N.T. 9/13/88 at 111; 6/23/97 at 85–86. Richard Mayo, a friend of the Appellant, testified that Linda Rowden had made statements to police regarding Appellant‘s involvement in Nigel Anderson‘s death. N.T. 9/12/88 at 19; 6/23/97 at 148.10 Denise Walker, another of Appellant‘s acquaintances, stated that Appellant told her that he had shot Rowden and that Rowden was “running her mouth to police” about Nigel Anderson‘s murder. N.T. 9/12–13/88 at 111, 113; 6/23/97 at 117.
Despite the similarity in the evidence submitted at both penalty phase hearings, Appellant contends that the sections are different because section (d)(5) requires the Common-
In Zook, we also recognized the rule enunciated by the United States Supreme Court that when a defendant‘s conviction has been reversed on appeal, “‘the original conviction has been nullified and the slate wiped clean.’ Therefore if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served.” 615 A.2d at 22 (quoting Poland v. Arizona, 476 U.S. 147, 152, 106 S.Ct. 1749, 1753, 90 L.Ed.2d 123 (1986)). In this case, we reversed Appellant‘s 1988 conviction and sentence of death in 1991.
Relying on several rules of statutory construction, Appellant also argues that aggravating factor (d)(15) cannot be applied retroactively. See
[l]egislation which affects rights will not be construed to be retroactive unless it is declared so in the act. But, where it concerns merely the mode of procedure, it is applied, as of course, to litigation existing at the time of its passage. [citation omitted]. .... In general terms, substantive laws are those which affect rights, while procedural laws are those which address methods by which rights are enforced.
Morabito‘s Auto Sales v. Dept. of Transportation, 552 Pa. 291, 715 A.2d 384, 386 (1998) (citation omitted). Given the substantial similarity between aggravating factors (d)(5) and (d)(15), and the fact that the evidence proving both aggravating factors is the same, the addition of section (d)(15) is not legislation which affects the rights of Appellant. Accordingly, Appellant is not entitled to relief on this claim.11
Appellant next contends that the testimony of Detective Salamone was inadmissible hearsay. Detective Salamone
Linda Rowden came into the Detective Bureau of the Borough of Norristown, complained that Robert Fisher had been harassing her and also assaulted her on that particular day of July 8, 1980, due to the fact that she was cooperating with authorities, that being Montgomery County Detectives, into a homicide that occurred of Nigel Anderson at the Crossroads Motel.
N.T. 6/23/97 at 85–86.
Appellant contends that the statement is inadmissible hearsay because it went to establish the truth of the report made by Rowden, and to the aggravating factor to be proven by the Commonwealth. Alternatively, Appellant claims that if the testimony is admissible, it is irrelevant and immaterial since the victim‘s state of mind was not a factor at issue; rather, it is Appellant‘s state of mind that is at issue.
Albeit in dicta, we addressed this very issue in Fisher II, wherein we considered substantially similar testimony from Detective Salamone12 and concluded:
If given the opportunity, the Commonwealth could have successfully argued that the statements were not offered to prove the truth of the matters asserted. The Commonwealth offered evidence that Rowden alleged, truthfully or untruthfully, that Appellant had harassed and assaulted her because of her cooperation with authorities in the Anderson murder investigation and that Rowden‘s allegations, true or
Out-of-court statements by a murder victim may be admitted to establish motive of the defendant when those statements are not offered to prove the truth of the matter asserted. Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986). Further, the Commonwealth offered the testimony of Richard Mayo which corroborated the victim‘s out-of-court statements.
681 A.2d at 140 (footnote omitted). Detective Salamone‘s testimony here was not offered to prove that Appellant had assaulted and harassed Rowden, but to establish Appellant‘s motive for killing Rowden, namely, to prevent her cooperation with law enforcement officials. The trial court admitted the Detective‘s testimony along with a cautionary instruction mirroring the above-quoted language.13 Because this testimony was both relevant and admissible, Appellant‘s claim is without merit.
In Appellant‘s next assignment of error, Appellant claims that the prosecutor attempted to inject an improper issue into the case, namely, victim impact evidence. Victim impact evidence is characterized in the capital sentencing statute as “evidence concerning the victim and the impact that
Appellant‘s argument is based upon the following exchange which occurred while the prosecutor was cross-examining Appellant:
Q: Would it surprise you to learn in those three times [that you previously testified], you never once testified that you prayed for Linda Rowden? Today is the first time you testified to that. Would that surprise you to learn that? Would you like me to show you the testimony?
A: It doesn‘t matter because I did. I don‘t say everything on the stand—just like the questions I was asked today, I could have elaborated on them. I can‘t sit—stand up here all day and say everything I want to say. There‘s things I forgot today that when I go back, I think that I wish I had of said.
Q: By the way, you remember these two people here (indicating), Mr. and Mrs. Rowden? Remember them (indicating)?
A: I never met Mr. Rowden. I met Ms. Rowden—
Q: Let me introduce you to them. Here they are (indicating). Remember them?
N.T. 6/24/97 at 31–32.
Contrary to Appellant‘s assertion, we do not find this exchange constitutes an admission of “victim impact” testimony.
[A]lthough it is improper to comment on evidence not of record, we cannot conclude that the isolated reference here made by the prosecutor regarding what the victim‘s family may say to the pleas of sympathy expressed by the appellant‘s family was so pervasive or deliberate so that the unavoidable effect thereof was to prejudice the jury to the point that they could not fairly weigh the evidence presented. Certainly, the jury could infer, even absent the above remark, that the victims’ families would not be as sympathetic as the family of the Appellant.
As in Jones, the prosecutor here made an isolated reference to the victim‘s family when he indicated to Mr. and Mrs. Rowden. Unlike Fisher II, no testimony was elicited regarding the impact of the victim‘s death upon her family, nor was the jury instructed to consider victim impact evidence; in fact, no evidence was presented at all. Moreover, while we do not condone the remarks of the prosecutor, we cannot say that the brief reference to the victim‘s parents during the course of a three-day trial was so pervasive so as to unfairly prejudice the jury to the point that they could not fairly weigh the evidence presented. Accordingly, Appellant is not entitled to relief on this issue.
Appellant next contends that the trial court erred in refusing to permit defense counsel to argue, pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that a sentence of “life imprisonment” in Pennsylvania means that Appellant would spend the rest of his life in prison without the possibility of parole. Following the mandate of Simmons, we have stated that “where future
Appellant claims that the prosecution twice put Appellant‘s future dangerousness at issue. The first instance arose from the cross-examination of a defense witness, Bradley Newton, a Corrections Counselor at the State Correctional Institution at Greene (“SCI-Greene“), who testified about Appellant‘s behavior while Appellant was incarcerated at SCI-Greene from 1988–1997. Newton noted, inter alia, that Appellant had no reports of misconduct or institutional violence; that Appellant‘s attitude was “very positive“; that Appellant‘s work reports reflected “generally very good performance“; and that he was cooperative, courteous and related well with other inmates. N.T. 6/23/97 at 212–19. On cross-examination, Newton read from a psychological evaluation of Appellant obtained upon Appellant‘s arrival to the facility in 1988, and the prosecutor quoted from that report in his closing as follows:
And here‘s what his personality make-up was in the opinion of his doctors at the prison: “Self indulgent, oppositional, nonconforming and a somewhat rebellious individual who employs compensatory defenses to cloak and combat fear of a personality diffusion and integration. Tests reveal sexual preoccupation and a tendency for [Appellant] to be provocative, irritable, argumentative and retaliatory in his interpersonal relationships.” Retaliatory. “Sadistic and hostile impulses are suspected with rigid personality features and a potential for explosive action. [Appellant] possibly harbors persecutory ideas and may project responsibility, parens, blame, end parens, for his problems, frustrations and negative feelings.”
N.T. 6/25/97 at 83–84 (emphasis added).
The second instance also occurred during the Commonwealth‘s closing argument. During cross-examination, Newton stated it was possible that “[Appellant] has an incentive to be a good boy in prison so that [Appellant] can have [Newton]
Fisher knows that if he‘s a good boy in prison, he‘ll now have a record to give you and try to fool you into thinking that that‘s a mitigating factor and he‘s not deserving the death penalty. He‘s manipulating us, and he is trying to manipulate you.
I wonder if after tomorrow he‘ll remain a good guy in prison when it no longer matters? It won‘t do him any good after tomorrow.
N.T. 6/25/97 at 86 (emphasis added).
Appellant argues that the inference most likely to be drawn from the above-mentioned statements is that he “posed, poses and will continue to pose an explosive and dangerous threat to persons with whom he interacts in the future.” Br. at 42–43. However, no references to Appellant‘s future dangerousness were ever made. We have stated that “instructions detailing the character of a life sentence are not required where future dangerousness is not expressly implicated.” Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998) (citing Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 47 (1998)). Here, the prosecutor was not urging the jury to consider the future danger posed by Appellant in imposing sentence. Cf. Simmons, 512 U.S. at 157, 114 S.Ct. at 2190–91, 129 L.Ed.2d at 139 (prosecutor argued that imposition of the death penalty would be “a response of society to someone who is a threat. Your verdict will be an act of self-defense.“); Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040, 1046 (1998) (prosecutor stated “life imprisonment in this case is simply not enough. I am asking you, with your verdict today, to stop Kevin Chandler, to stop him from ever hurting another woman again, to stop him from ever killing another woman again.“). After reviewing the statements in context, we conclude that these two instances did not impermissibly raise the issue of Appellant‘s future dangerousness. Rather, the prosecutor‘s comments were a fair response to the evidence of good character presented in mitigation by Appellant. Commonwealth v. Cook, 544 Pa. 361, 676 A.2d 639, 650 (1996), cert.
Appellant claims in his final assignment of trial court error that the trial court improperly permitted the Commonwealth to question Appellant regarding a tattoo of the word “Kuda“, which Appellant explained was short for “barracuda“. The prosecutor asked whether “a barracuda is a predatory fish with a lot of teeth, kind of like a shark” and stated “It‘s nasty evil fish, isn‘t it? That‘s why you had it tattooed on your arm?” N.T. 6/24/97 at 29. Appellant responded that he had received the nickname as a teenager. Appellant argues that such evidence was irrelevant and was used to inflame the jury. We disagree.
At the penalty phase hearing, Appellant presented the testimony of his Corrections Counselor Bradley Newman as to Appellant‘s reputation for being kind, courteous and relating well with others while imprisoned. Appellant‘s defense counsel characterized Appellant as a war hero (since Appellant received a Purple Heart in Vietnam) and a model prisoner. Appellant presented evidence that he was devoutly religious. By presenting this evidence as to his good character, Appellant put his character at issue. Having done so, the prosecution was entitled to cross-examine Appellant regarding his tattoo in order to rebut the inference of good character.
Appellant also raises two ineffective assistance of
Appellant first contends that trial counsel was ineffective for failing to request a “corrupt and polluted source” charge with regard to the testimony of Richard Mayo. It is clear that “where an accomplice implicates the defendant, the judge should tell the jury that the accomplice is a corrupt and polluted source whose testimony should be viewed with great caution.” Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9, 13 (1994) (citations omitted). “For an accomplice charge to be required, the facts need not require the inference that the witness was in fact an accomplice; they need only permit such an inference.” 639 A.2d at 13 (citation omitted). On the other hand, where there is no evidence to indicate that a Commonwealth witness was an accomplice, no charge is warranted. See Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671, 677–78 (1975).
Pursuant to the Crimes Code, a person is an “accomplice” if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it; or
(2) his conduct is expressly declared by law to establish complicity.
Appellant asserts that the jury could infer that Mayo was an accomplice because Mayo arranged the meeting between Rowden and Appellant; he was in the car at the time of the shooting; he failed to warn Rowden of the impending murder and failed to express surprise at the shooting; he left the scene without speaking to police; and he provided the name of his twin brother when initially questioned by police.
Mayo testified that Appellant asked Mayo to pick up Rowden because Appellant and Rowden had argued the previous evening and Appellant wanted to talk to her. N.T. 6/23/97 at 168. On cross-examination by defense counsel, Mayo stated that Appellant never told him that Appellant was going to shoot Linda, nor ever threatened to shoot Linda. N.T. 6/23/97 at 189. Mayo further testified that immediately after the shooting, he exited the vehicle and went to a call box to summon assistance for Rowden while Appellant fled. N.T. 6/23/97 at 170. Mayo initially remained on the scene but then left because he was wanted for a parole violation. N.T. 6/23/97 at 170, 176. For that same reason, he gave the police a false name. N.T. 6/23/97 at 170–71.
Appellant has not shown that Mayo intended to promote or facilitate the murder; to the contrary, the record demonstrates that Mayo knew nothing of Appellant‘s plans. Nor was Mayo ever charged as an accomplice. Moreover, Mayo‘s call for help for Rowden following the shooting is inconsistent with the claim that he was an accomplice in the slaying. Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, as we must, Chmiel, 639 A.2d at 13, we find that this evidence would not permit the jury to infer that Mayo was an accomplice in Rowden‘s murder. Counsel cannot be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242, 1253 (1999). As there was no basis to request the corrupt and polluted source charge, this claim fails.
Despite Appellant‘s claim that he was in a “drug-induced frenzy“, two expert reports solicited by prior defense counsel indicated that Appellant‘s capacity was not diminished on the day of the murder. Counsel cannot be deemed ineffective for failing to pursue a claim of diminished capacity where the psychiatric records indicate that that theory was unsupportable. See Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 897 (1999). Moreover, at the post-trial motion hearing, Appellant‘s counsel testified that Appellant continued to maintain his innocence even during the penalty phase. N.T. 1/20/98 at 29–30. Clearly, presenting evidence regarding Appellant‘s inability to appreciate the criminality of his conduct would have been inconsistent with Appellant‘s claim of innocence. See Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1190 (1999) (counsel was not ineffective for failing to raise diminished capacity defense where defendant claimed another person had committed the murder). Accordingly, Appellant is not entitled to relief on either of the ineffectiveness claims.
Finally, pursuant to
Justice NIGRO files a concurring opinion.
Justice SAYLOR files a dissenting opinion in which Chief Justice FLAHERTY joins.
NIGRO, Justice, concurring.
I join in the Majority opinion, and write separately solely to reaffirm my position that a standardized Simmons instruction should be given in all capital cases for the reasons more fully explained in my concurring opinion in Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 43–44 (1998) (Nigro, J., concurring).
SAYLOR, Justice, dissenting.
I respectfully dissent. This Court has previously indicated that an aggravating circumstance does not apply in the case of a defendant whose crime preceded the enactment into law of that aggravating circumstance. See Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). Because Section
Nor, in my view, can the reasoning of Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993), be relied on to render harmless the jury‘s finding of this aggravating factor. In Zook this Court declared that the application of an aggravating factor adopted after the commission of the offense was “of no moment,” id. at 119, 615 A.2d at 21, because the challenged factor (the defendant having been convicted of another murder,
The majority concludes that Zook applies here because the aggravating factor listed at Section 9711(d)(5), which had been enacted prior to Appellant‘s commission of the murder, is “substantially similar” to the (d)(15) aggravator. I agree that these aggravators are quite similar. I believe, however, that there is one difference that is material for purposes of this case: Section 9711(d)(5) identifies as an aggravating factor the killing of a prosecution witness for the purpose of preventing
Because Appellant was not called upon to defend the allegation that this killing was committed for the purpose of preventing witness testimony, and the jury was neither asked to make nor made such finding, I do not believe that, under Pennsylvania‘s capital sentencing scheme, the (d)(5) circumstance should be relied upon, in any manner, to support the determination that Appellant was eligible for capital sentencing. Since the (d)(15) aggravator was not available, and was the only aggravating factor found by the jury, I would vacate the sentence of death and remand for the imposition of a sentence of life imprisonment.
Chief Justice FLAHERTY joins this dissenting opinion.
Notes
Fisher II, 681 A.2d at 140.Basically [Rowden] contended that the assault and the harassment [by the Appellant] had been taking place upon her due to the fact that she was providing information to the Montgomery County Detectives concerning the Nigel Anderson investigation of the homicide that occurred at the Crossroads Motel ... [S]he was in fear he might do her bodily harm.
N.T. 6/23/97 at 84. Because we find that the evidence is admissible, we discern no error in the trial court‘s statement relative to the victim‘s state of mind.I‘m allowing the testimony concerning Linda Rowden and Detective Salamone relative to her alleged assault and harassment by the Defendant not for the truth of the matter asserted, that is to say, not for you to believe that assault happened or didn‘t happen. I‘m allowing it only for evidence of Miss Rowden‘s state of mind, not as any evidence toward the propensity—any propensity of violence in the Defendant.