*1 viеw, majority’s holding opens a veritable Pando- my Box, and unreliable inviting consideration of irrelevant ra’s cloud, very clarify, than that would rather information It penalty phase. must make in the serious decision scheme, worse legislative and is even misguided would be a Hence, I dissent. jurisprudence. A.2d 261 Pennsylvania, Appellee, v.
COMMONWEALTH Anthony FLETCHER, Appellant. Pennsylvania. Supreme Court of Argued 1998. Oct. 24, 2000. Decided March May Reargument Denied *10 Cotter, Philadelphia, John P. for A. Fletcher. Marshall, Pomeranz, Anthony
Catherine Philadelphia, Rob- Graci, A. Harrisburg, ert for Commonwealth. FLAHERTY, C.J., ZAPPALA, CAPPY,
Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ. THE
OPINION OF COURT CASTILLE, Justice. 1993,
In January jury of a appellant convicted of first- degree possessing murder1 and an instrument of crime2 and imposed sentence of death.3 appeal This direct followed. 2502(a). § 1. 18 Pa.C.S. 907(a). §
2. 18 Pa.C.S. jury aggravating appellant 3. The found two circumstances: that know- ingly grave danger person created a risk of to another in addition to the offense, 9711(d)(7), § victim of the 42 Pa.C.S. and that at the time of killing, competition the victim was or had been involved or with sale, manufacture, illegal in the delivery any distribution or substance, controlled or counterfeit killing controlled and the resulted from or competition promote was related the association or activities, l(d)(14). appellant’s illegal jury § 42 Pa.C.S. 971 The found mitigating two circumstances: that was under the influence disturbance, 9711(e)(2), of extreme § mental or emotional 42 Pa.C.S. mitigation and other concerning evidence of the character and record offense, and the circumstances of his 42 Pa.C.S. 9711(e)(8). § aggravating The determined that the circumstances
278 herein, expressed judgment we affirm the
For the reasons of Philadel- Court of Common Pleas imposed sentence County. phia has im penalty
In all cases where the death
been
required
to conduct a review
posed, this Court
Zettlemoyer,
Commonwealth v.
sufficiency of the evidence.
denied,
16,
937,
(1982),
26,
942
cert.
461 U.S.
Pa.
(1983),
denied,
970,
2444,
reh’g
Poliсe and interviewed Williams another shooter, eyewitness, appellant each of whom identified as the house, eight people drug as well as who but other were any regarding provide who were unable to information trial, shooting.4 During phase of guilt Williams testified a having provided implicating and denied statement to police Therefore, his appellant police the murder. statement statement, was admitted as substantive evidence. was from away Williams stated that he three feet appellant approached Christopher, money for his when asked shot Christopher Christopher could answer. Kirk- before was police during man’s statement admitted into evidence guilt phase, although testify did not until actually she penalty phase. provided by
Based on the information and Kirk- Williams man, appellant was on March being arrested 1992. After Miranda5 rights, informed of his a appellant gave statement to police that approached he the victim at crime scene punched the victim in the head had because the victim stolen money from game. him during crap According appellant, victim pulled handgun struggle then out and a ensued. gun, After seized the he claimed he fired it into leg.6 twice the victim’s find that beyond
We this evidence demonstrates a reason- killing doubt that able was committed with malice afore- thought sufficient to sustain conviction for first- degree murder.
4. Grant was not until interviewed two weeks after police arrested because were unable to locate her. *12 Arizona, 436, 1602, 5. Miranda v. U.S. 16 384 86 S.Ct. L.Ed.2d 694 (1966). previously, As noted the evidence established shots were that the fired 6. torso, leg. in the victim’s not his guilt phase court error in the
Trial during of trial court error alleges points several in First, that phase. argues he the court erred guilt the gave police to appellant the statement failing suppress was ground his on that the statement following arrest the right in to counsel. violation of his Sixth Amendment obtained police investigators that informed the Appellant alleges he attorney that to an but prior questioning speak he wished police psychological thwarted and that used request the a giving him into pressure coerce statement. addressing of a challenge
Our standard
review
a
motion is
suppression
a trial court’s denial of
whether
by
and
factual.findings
supportеd
are
the record
whether
drawn
those
are
legal conclusions
from
facts
correct. Com
(1997),
Hall,
269, 283,
190,
v.
monwealth
549 Pa.
701 A.2d
denied,
1534,
N.T. at 33-34. The court similar instruction 1/22/93 in charge jury. its final to the We find no error the trial jury. to court properly court’s instruction the The trial duty by issuing an performed promptly its accurate curative concerning drug following instruction the witness’s use de- personal drug of a abus- fense counsel’s baseless assessment credibility. Accordingly, claim warrants no relief. er’s this
Next, appellant that trial court asserts the erred failing give in a mistrial or a curative instruction declare jury hearsay testimony from after the heard Natalie Grant drugs.8 with A motion for concerning appellant’s involvement a matter addressed to the discretion of court. mistrial is the Jones, 464, 488-89, 542 Pa. 668 A.2d Commonwealth (1995), denied, 502-03 cert. 519 117 136 U.S. S.Ct. (1996). only grant L.Ed.2d 45 A trial court need a mistrial alleged prejudicial may reasonably where event be said to impartial of a fair and trial. deprive the defendant Id. response questions prosecutor In from re garding killing, for that possible motive Grant testified given victim had victim a told her had failing give the trial also claims court erred Although appellant request curative instruction. did not a curative trial, alleged he has counsel instruction trial was ineffective Therefore, failing properly to do so. this claim is before the Court is discussed infra. package containing drugs. N.T. at 25.9 The trial 1/25/93 immediately court testimony ordered the witness’s concerning motive to from be stricken the record on the basis that the was hearsay jury statement and advised the that it was to disregard testimony. N.T. at 26. its final instructions, again court jury reiterated that it could not any consider evidence that the court had ordered stricken from the record. We find that the instruction was any possible sufficient to cure prejudice to appellant.10 Absent contrary, jury evidence presumed to have fol- lowed Baker, the court’s instructions. Commonwealth v. 541, 559, (1992)(our
Pa. presumes law juries law). follow the court’s instructions applicable as to the Accordingly, the trial court did failing not err in to declare a mistrial.
Appellant’s next claim is that the trial court improper ly expressed opinion its its appellant’s instruction as to motive, thus prejudicing appellant by effectively removing the determination of motive from province jury. of the This claim is technically waived due to object failure to (nо to the instruction when issued.11 Pa.R.Crim.P. por tions charge nor omissions may assigned therefrom be *15 as error specific objections unless are made thereto before the jury deliberate); retires to Edmondson, Commonwealth v. 553 (1998)(due Pa. appellee’s to failure to 9. also claims that the court should have declared a mistrial after Grant testified engaged she saw the drug defendant in activity, arguing testimony that such hearsay. was inadmissible Be- testimony regarding cause personally events that she witnessed does hearsay, not constitute that claim is meritless. stricken, though 10. judge Even the trial testimony ordered the it should that, during be noted penalty phase, the jury aggrava- the found as an ting circumstance that the victim was competi- or had been involved in sale, manufacture, illegal tion with in the distribution or delivery any substance, of controlled or counterfeit controlled and the killing resulted from or was competition related to the association or activities, promote illegal l(d)(14). § 42 Pa.C.S. That supported by properly determination was admitted evidence that the drug murder was related. See fn. infra. Appellant, challenge does not the effectiveness of his trial counsel for failing object to this instruction. it, issue object to an the court issued the instruction when Nevertheless, we appeal). may properly preserved not pursuant the of claim the relaxed still reach merits capital in as stated appeals involving rule direct cases waiver Zettlemoyer, supra at n. 454 at 942 n. 3. portion of the trial instruction The court’s relevant concerning is as follows: motive
Motive, part ... not an or of that well Motive is element is as of a crime or crimes. Motive defined some definition will induces or and action. The cause reason moves to external motive is used without distinction term refer internal, psychological or to mental or states circumstances Thus, actions conduct. mon- person’s or which motivates or something spite, or hatred ill ey, property, gain, value of as for a criminal act. spoken will can be motives case, own you your in this make guess I evidence motive, determination, a drug-related was that there was a through guess I didn’t go transaction in which deal cocaine, smoking of they delivery talked about the of the by deceased, guess you I сan the motive cocaine so label You money, revenge. label them.... any, if you weight, It what entirely up
... to determine given concerning motive in this case. should be the evidence at N.T. 57-59. prejudiced how
Appellant fails to demonstrate he was merely The alluded to evidence court’s instruction. court instructing produced by trial while the Commonwealth all, accept part, that it or none evidence. jury could Further, briefly summa- its final instructions the trial court evidence, emphasized jury’s that the recol- rized the but should lection the evidence controlled and accurately disregard any of the court that did not statement explained jury’s recollection. The court further reflect its should not be construed to summary evidence *16 truth of any position regarding court took suggest any testimony. Finally, N.T. at 37-38. both before 1/29/93 motive, court and after the instruction on summarized appellant’s police in which appellant statement claimed that approached victim being by crap he after robbed him at a game, weapon that the victim drew the first and that that, shot the victim explained accident. The court if believed, appellant’s him outright statement entitled to an acquittal. N.T. at 64-74. Accordingly, no relief is 1/29/93 warranted on this basis.
Appellant’s next claim is that the trial court erred refusing grant a mistrial prosecutor after the questioned on direct examination the detective who eight interviewed individ shortly uals after the murder about his efforts to obtain an arrest warrant. Specifically, prosecutor asked, “Now, having after interviewed on Skeet the 5th having spoken eight people to the drug from the house and having after spoken Angelic Poochie, Kirkman or you prepare did warrant of arrest?” N.T. asserts 1/21/93 court in denying erred defense motion counsel’s for a mistrial because question implied eight people had made statements incriminating appellant. We disagree. purpose
The of this line of questioning, as explained by the prosecutor discussion, at a sidebar was to refute defense counsel’s assertion that investigation the entire of the matter on Grant,12 based false information from Natalie and to demonstrate chronology pertaining events to the detec- investigation tive’s Following case. defense counsel’s objection, the trial court issued a cautionary instruction as follows: Williams,
12. On cross-examination of Commonwealth witness Ronald attempted defense counsel falsely implicated to show that Williams appellant in the murder. Williams testified on cross that Natalie Grant provided police must have with false information that Williams was an eyewitness addition, to the murder. N.T. at 74. on cross- examination investigators, appellant of one of the attempted to establish police had fabricated Williams's written account the murder they based on information had received from Natalie Grant. The testimony detective's was relevant appellant’s to refute contention of police fabrication since Natalie Grant people was not one of the Rather, prior interviewed police arrest. were unable to locate her until two appellant's weeks after arrest. *17 to in gentlemen, explained probable you and I cause Ladies proof preliminary Probable cause is not of my instructions. guilt. of You don’t because of fact guilt evidence infer the question of is not a legality of an arrest and the the arrest arrested, already to You know he’s so do you. of concern his guilt draw the of from that fact of arrest. not inference they a as tran- just chronological This is order of events spired. addition, at as of final part
N.T. its 1/21/93 116-117.. charge, jury the trial instructed that the mere fact court the of a defendant was arrested and accused crime was that the appellant’s guilt. as of Absent not to be considered evidence contrary, jury fol- presumed to the the have evidence Baker, at 614 A.2d supra lowed the court’s instructions. that at 672. fails to demonstrate the instruction may inadequate any prejudice to cure that have stemmed prosecutor’s question. from the
Next, that trial court appellant asserts the “assumed and prosecutorial improperly questioned a and cross- role” testimony and and impugned Natalie Grant her examined credibility. was a Initially, we note Natalie Grant Com and, therefore, the court any question monwealth witness credibility only witness’s would seem posed damaged the Furthermore, appellant, prejudice to assist not him. of any questions places court did not ask the witnesses “interrogation” by appellаnt. in the record The indicated actually appellant complains which consisted of instructions directing questions witness from her answer certain questions.13 counsel and not to answer other There defense fore, find we claim be meritless.
Next, claims trial court that the erred instructing right has jury prevail “neither side questioned regarding her 13. When defense Grant criminal counsel concerning history, responded vague with a witness answer Accordingly, the number of thefts she had committed. trial court interjected, explaining providing importance to the witness an jury explaining and the answer to both witness certain properly in be crimes were crimen nature and could considered falsi credibility. used to evaluate the witness's upon appear a witness to court.” N.T. at 107.14 instruction, evaluating will jury rigidly When not “[w]e finding every inspect jury charge, reversible error inaccuracy, charge technical but rather evaluate whether the apprises sufficiently accurately laya law it must its rendering consider decision.” Commonwealth (1990). Prosdocimo, 1273, 1276 525 Pa. The that, law is clear under Pa.R.Crim.P. either can side subpoena appear a witness to in court. that the To extent inaccurate, court’s instruction was unclear or the trial court’s *18 instruction nevertheless constituted harmless error under the circumstances of the case. claim, that,
In a related asserts as error witness, during of a prose the cross-examination defense the why speak cutor the had to the asked witness he refused to prosecutor testifying to at prior the defense. N.T. 1/26/93 Following questioning, 106. this line of to pursuant defense request, jury regarding counsel’s the trial court the instructed to right by the law on a witness’s refuse to the be interviewed opposing attorney in a criminal matter. The court’s instruc right tion on whole on a to the centered witness’s to refuse give a statement to the in a opposing attorney criminal matter. ability The trial court’s a regarding party’s limited instruction to compel appear a witness to in court was not at issue. When whole, clearly the instruction is a reviewed as it the instructed jury that the defense was not to obligated speak witness to the prosecutor prior any to trial as to negative so remove infer may pretrial ences that from have arisen the witness’s decision Further, not to with speak prosеcutor. at the conclusion instruction, expressed the court’s defense counsel satisfac tion with the content of the instruction. N.T. at 107. 1/26/93 prejudiced by fails to demonstrate how he was Accordingly, court’s instruction. no due. relief is Next, appellant alleges by trial court erred failing grant by a mistrial sua sponte after certain remarks 14. is technically object This claim waived due to at failure to Nevertheless, pursuant trial. we will address issue to the relaxed Zettlemoyer, supra, waiver rule. at 26 A.2d n. at 942 n. 3. phase. As closing guilt prosecutor during argument rule, not do constitute general prosecutor
a comments a of such com- the unavoidable effect reversible error unless a forming in their minds prejudice jury, would be to ments they toward such that hostility bias and the defendant fixed a true weigh objectively not and render could evidence Bronshtein, supra at at 917. A.2d verdict.
First, made appellant complains prosecutor that the stigmatized Specifically, counsel. defense remarks stated, “I It seemed prosecutor counsel]. listened [defense Skippy, man It must have been totally today. like a different days. past that hás here for the the еvil twin brother been today closing argument he makes his All of sudden when subdued, relaxed, man, N.T. quiet, calm.” you he like new at The on to state that defense prosecutor 91. went 1/27/93 job jury. confuse the counsel’s avoided, personal While such comments are be defense during first raised issue of his behavior counsel himself argument. apologized counsel during closing Defense trial, admitting that acted during for his offensive behavior he However, crazy.” “a little N.T. “jerky” and *19 personal also on prosecu- counsel launched attacks the defense Further, noted police and witnesses.15 the court tor the counsel, indeed, opinion changed that his trial in its “defense drastically his upon delivering closing argument.” demeanor light at In counsel’s Slip Op. Trial Ct. 55. of defense behavior behavior, find closing regarding his his we and own comments declaring correctly trial court refrained from a mistrial the sponte sua respect to the concern- prosecutor’s with remarks ing counsel. defense Specifically, prosecutor could
15.
defense counsel stated
the
face,
degree
straight
was
not seek a first
murder conviction with a
extremely
overreaсhing,
aggressive, engaged in
and that the Common-
24-26, 39-40,
compass.
wealth
its
N.T.
at
85.
had lost moral
1/27/93
police
the
had
and a
Defense counsel asserted that
“tunnel vision”
"myopic
they
attempted
prejudice
jury.
viewpoint” and that
had
Id. at
unduly prej
that he was
complains
further
Appellant
that the evidence
statement
prosecutor’s
udiced
However, our
overwhelming.
drug
was a
dealer
actually
prosecutor
that what the
reveals
of the record
review
overwhelming.
appellant was
against
case
was that the
said
was a fair comment
find that this
at 135-36. We
N.T. 1/27/93
and, thus,
is
on this claim.
no relief
due
on the evidence
the court erred
complains that
Finally, appellant
admonishing
prosecutor
a mistrial after
failing to declare
concerning the
jury
to the
argument
making
sympathy
and Natalie
that the victim
argued
prosecutor
The
victim.
drugs
they used
away people” because
not “throw
were
Grant
society were
they
what
as members
jury
and asked the
164-65. The
N.T.
at
murder.
to do about the
going
1/27/93
and instructed
objection
sustained defense counsel’s
trial court
provoking argument
sympathy
prosecutor
“give up
how the
fails to demonstratе
Id.
go
and
on.”
hostility
or
a fixed bias
brief statements created
prosecutor’s
promptly
court
instructed
jurors.
minds of the
The
in the
prosecu
argument
that line of
to abandon
prosecutor
jury
Additionally, the trial court instructed
complied.
tor
N.T.
at
arguments were not evidence.
that counsel’s
contrary,
presumed
is
26-29. Absent evidence to
Baker,
supra
instructions.
to have followed the court’s
Accordingly, no relief is warranted.
Ineffectiveness of several claims of ineffectiveness Appellant raises an during guilt phase.16 order establish of counsel (1) claim, that the appellant must demonstrate: ineffectiveness (2) merit; action is of that counsel’s underlying arguable claim any basis grounded inaction was not on reasonable de or (3) interest; there signed to effectuate prejudiced that the act or omission probability a reasonable proceeding way in such a that the outcome Kimball, 555 would have been different. Commonwealth *20 purposes of appellant represented new counsel for 16. We note that appeal. 290 (1999). If it
Pa. 724 A.2d is clear prejudice prong has not met of the ineffective standard, mаy ness the claim be dismissed on basis alone first and and this Court need not determine whether Travaglia, prongs second have been met. Commonwealth 108, 118, (1995), denied, Pa. cert. (1996). 1121, 116 931, 133 S.Ct. L.Ed.2d 858 U.S. first claims that trial was
Appellant counsel ineffec failing object “emphasis” tive for to to the trial court’s witness, criminal This record defense Michael Golden.17 Here, prosecutor cross-examining claim is meritless. concerning testify his to for the witness decision the defense. prosecutor, from any prompting Without the witness “If interrupted questioning following outburst: with speak your something. honor would allow me to here about say you pulled my You record —.” N.T. at 119. The him that his interrupted court the witness and informed any record was not at issue and that no one had asked him questions his criminal court regarding record. The instructed merely questions to the witness answer the were asked Thus, assertion, contrary him. to the trial court prevent i'evealing acted to the witness from his criminal merely reacting record. The court was to an unsolicited part concerning outburst on of the witness witness’s record, not prosecution criminal which the had asked about. Accordingly, failing trial was not counsel ineffective object to prevent prejudice court’s efforts a appellant from the outburst of defense witness.
Appellant’s claim is that trial next counsel was inef failing request pre-trial psychiatric fective for a examination appellant, given previously had suffered head injuries during professional boxing This claim is career. any Appellant alleged meritless. fails to offer evidence of his repeated- also raises the claim that the trial court erred in ly emphasizing Technically, the witness's criminal record. this claim is lodge timely objection waived due to counsel’s failure to trial. However, we reach merits of claim because has also failing object. raised ineffectiveness for counsel’s *21 addition, in defects. the trial court stated its mental opinion slightest psycholog- that it never observed the trace of impairment ical that as to questions would have raised wheth- pre-trial psychiatric necessary. er a Trial evaluation was Ct. Slip Op. Appellant coherently articulately at 65. testified and pre-trial hearing, at a suppression penalty hearing, at the and at post-verdict heаring. Accordingly, this claim must fail.
Next, appellant that asserts trial counsel was ineffec failing tive for to request that the trial court a issue curative instruction testimony after the court struck Natalie - concerning appellant’s Grant drug motive transaction with the victim. See discussion supra. This claim is merit- discussed, less. As previously immediately court ordered the hearsay testimony witness’s concerning motive to be stricken from the record. N.T. at 26. The trial 1/25/93 court further immediately jury advised the it was to disregard testimony. instructions, Additionally, its final the trial court reiterated to the that it could not consider any evidence that court had ordered stricken from the Thus, record. it necessary was not request counsel to curative instruction sufficiently when the court instructed the jury regarding the testimony. stricken
Next, appellant claims that trial counsel was ineffec allegedly tive for telling appellant that testify he could not during guilt phase. This claim flies the face of the record. The trial court conducted a with colloquy appellant on concerning the record appellant’s right testify. Appellant stated under oath that right testify he discussed his with his trial counsel аnd that he had made his own decision to assert his Fifth right Amendment not to testify. N.T. at 138- 142. The trial court appellant advised that he was under no obligation to take regarding counsel’s advice his decision whether or not testify and indicated that he understood. The trial court specifically asked if he solely chose to remain silent because counsel advised him to so, do and indicated that his testify refusal to was of his own free will. Accordingly, Id. no relief is warranted. asserts that counsel was ineffective for next
failing trial. To present certain defense witnesses prevail a claim trial for failure on counsel’s ineffectiveness witness, (1) to call must the defendant show: (3) existed; (2) available; witness that the witness was of the or should counsel was informed of the existence witness (4)' existence; have that the known witness’s witness appel have on prepared cooperate would testified (5) behalf; testimony lant’s absence of Pursell, 555 Pa. prejudiced appellant. Commonwealth — U.S.-, denied, cert. A.2d 120 S.Ct. *22 (1999). L.Ed.2d 330 that should have
Appellant argues defense counsel aunt, testify during appellant’s called uncle and wife the t.o impoverished living his guilt phase alleged of trial аbout conditions, money that he from and that had borrowed them tailor, purpose a of contradict living he earned his as for the ing theory of prosecution’s appellant the the case made money drug During penalty his from the being dealer. trial, to phase of defense counsel had called these witnesses testify appellant’s relationships. familial Evidence as to re alleged only of was garding poverty his sources income cross-examination, by by prosecutor elicited the on not de reasonably counsel have fense counsel. Defense could deter testimony by mined that the offered would have witnesses alleged may been to his unhelpful appellant poverty since as an for him reasonably have seen incentive been in get drug dealing. to involved Moreover, testimony may of and wife aunt Appellant’s have been detrimental. aunt testified on cross- during years a tailor appellant examination worked as in appellant questionnaire which had indicated on a he unemployed, casting appellant’s credibility.18 was doubt on testimony, During appellant’s N.T. at 92. wife’s she 2/2/93 on of had had an night they revealed that the murder argument upset. and that had N.T. appellant left house type questionnaire 18. The record does indicate what of contained not this information. Therefore, at 95-96. there was reasonable basis for 2/2/93 any guilt not to call of in counsel’s decision these witnesses phase is not to on this claim. entitled relief next claims that trial was for counsel ineffective failing object to in statements contained a witness’s state- police pertaining ment to what victim had murder him related to about the victim’s some time before question death. The part statements were read as prior police, Ronald Williams’s statement which introduced both impeach as substantive evidence and to statement, in response Williams.19 Williams’s written question concerning the detective’s for shoot- the motive ing, replied, Williams “Dope. told me that had [The victim] he aup package dope belonged f——ed to [appellant]. He up package [sic] smoke all the crack in the and [appellant] said anything. [Appellant] just never up walked on [the and shot victim] victim].” N.T. at 44. [the
The victim’s statement to Williams was relevant estаblishing regarding the victim’s state of mind his relation ship with and was therefore admissible under the hearsay exception state-of-mind presence to establish “the will, ill or killing.” malice motive Commonwealth Chandler, 401, 411, (1998)(murder 554 Pa. victim’s regarding statement her mother breakdown in *23 relationship hearsay excep admissible under state-of-mind tion). also, Puksar, 358, 368, See Commonwealth v. 559 Pa. n. (1999)(witness’s 219, 740 A.2d 225 n. 6 testimony that victim appellant had said he did not trust and that the victim and appellant dispute were involved a purchase over the model trains exception admissible under state-of-mind to hear Collins, say); 46, 58-60, Commonwealth 550 Pa. 703 A.2d 418, 424-25, denied, cert. 525 U.S. 119 S.Ct. statement, prosecutor
19. The read Williams’s written which Williams signed, having had after Williams took the stand and denied seen the shooting having police anything shooting. Appel- or told the about the challenge admissibility generally. lant does not of the statement See Lively, (1992)(prior Commonwealth v. 530 Pa. inconsis- non-party tent writing statement of witness that has been reduced to signed evidence). and declarant is admissible as substantive had shot (1998)(victim’s statement L.Ed.2d 447 if messed her in the head she and would shoot past in the her (cid:127) state-of- admissible under possession in her up drug package motive). was the statement Because exception prove mind was not ineffec- admissible, merit and counsel this claim lacks failing object. for tive not
Furthermore, arguably if was even the statement merely corroborative of the admissible, the statement drugs sold Kirkman that testimony of Grant and had drugs from had that the victim received merely corroborated the evidence money. Because spent the appellant’s guilt including and the evidence other evidence — appel overwhelming, eyewitnesses testimony of three —is him prejudiced so that the evidence lant has failed to establish had different trial would have been outcome of the that the Therefore, had statements been even objected. counsel claim is admitted, and this no relief is warranted improperly Travaglia, supra.20 meritless. that trial counsel was inef asserts
Appellant further eliciting witness and calling a as a defense detective fective witness, regarding him the Commonwealth’s testimony from Detective William Defense counsel called Natalie Grant. as a Schol, prosecution, for the previously who had testified that Natаlie Grant’s attempt in an to establish witness defense (cid:127) therefore, and, unreliable because testimony was biased favors for her. performed personal had investigators homicide alia, detective, inter from the trial counsel elicited Specifically, hospital from the courtroom the that he had driven Grant infant, allegedly which created to visit her sick on one occasion Furthermore, light of inaction was reasonable in trial counsel’s statement, police which contained disavowal of his Williams’s blanket Moreover, prosecution asked challenged hearsay. when the issue, specifically specific he he had made the statement Williams if having having police or had such made such a statement to denied Therefore, it was victim. N.T. at 44-45. with the conversation strategy allow Williams to objectively for trial counsel to an reasonable the writ- testify interruption the information contained in without true, emphasize that fact on cross- not and to ten statement was focusing aspects the disa- particular on examination rather than *24 vowed statement.
295 sympathy prosecution witness, for the thereby bolstering her credibility and prejudicing appellant.21 closing argument his guilt phase, defense counsel
argued testimony that Grant’s could not be trusted because she owed a debt to investigators driving hospital her to the and that testimony her was product therefore the of bias. Trial counsel suggested further that Grant had abused cocaine pregnant, while suggesting that the child was ill as a result. 1/27/93, N.T. at 28. Because counsel used this information in attempt an to discredit Grant in front jury, he had a reasonable basis for questioning the detective as he did. Therefore, this claim is meritless.
Trial court error in
penalty
phase
We now
address
claims of trial court error
during
penalty
First,
phase.
appellant claims that the
trial court
preventing
erred in
appellant from presenting
exculpatory
during
evidence
penalty phase
that would
have demonstrated that
the shooting
drug
was not
related.
This claim is
devoid of merit.
during
took
stand
penalty phase
concerning
background,
testified
his
family,
and employment history.
education
Appellant’s family
members also took the stand and
testified
his favor. The
only evidence that
prohibited
the trial court
appellant from
presenting during
penalty phase
was statements that he
was not guilty of the murder
for which
just
he had
been
convicted. This limitation was proper. Franklin v. Lynaugh,
164, 173-74,
U.S.
108 S.Ct.
Pa.
denied,
449-50
cert.
(1998)(counsel
U.S.
119 S.Ct.
dence that two impo- has no to the such evidence relevance appellant’s guilt; appel- allowed penalty). of Because the court sition the circumstances, no present mitigating to all relevant relief lant is warranted. that the trial not next claims court erred
Appellant of Kirkman striking testimony Angelic during penalty the the Kirk- was incompetent. on basis that the witness phase the in a smoking parked that she crack cocaine man testified shoot appellant car with woman when she observed another appellant that she make certain victim and overheard the shooting the victim. The trial court asked the remarks while drugs had night she used that affected witness whether relay what she The witness ability perceive her to and saw. drugs perceptions her but then indicated that the did affect any appellant had not remarks made stated that she heard her shooting Appellant the victim. moved to strike while entirety. testimony in its objection deter properly
The trial court overruled the and for the to Kirkman’s credibili mined that it was evaluate backdrop drug night on the of ty against the admitted use These factors killing and her testimonial inconsistencies. testimony, weight competency. not went her her Parks, 296, 301, 725, v. 453 Pa. 728 Commonwealth (1973), denied, 589, 414 94 38 L.Ed.2d cert. S.Ct. U.S. (1973)(a incompetent merely per 481 witness not se because drugs is drug it is that he addict and had taken established testifies); prior to incident to which he Commonwealth (1935)(“the Farrell, Pa. A. use of impair memory, may narcotics mind the extent measurement.”). jury’s Accordingly, impairment is for the in failing trial court did not abuse its discretion to strike this testimony.
Next, appellant asserts the trial court erred of an permitting рrosecution witness read the contents robbery charge affidavit for a against arrest warrant predated This claim is murder. meritless because Initially, testimony. for such the door opened counsel defense penalty that, commencement prior we note hearing progress, was in penalty hearing, again while the trial court advised and the both defense counsel robbery conviction would testified, of his 1989 evidence if he as a crimen crime. nevertheless be admitted falsi called as a witness the prosecution testify and the chose to admit robbery case order assigned to the investigator robbery pleaded guilty had evidence only investigator prosecutor questioned charge. The underlying about the crime plea. No details guilty about the were elicited. *26 cross-examination, from elicited the defense counsel
On pleaded guilty to that, day appellant that on the investigator investiga- the complaining witness informed robbery, the the leading robbery complaint to the circumstances tor that the in pursuing not the and that he was interested were a mistake further, pleaded had thereby implying appellant that case rebuttal, prosecu- the did not commit. On guilty to a crime he the contents of the arrest investigator tor had the read robbery charge. affidavit from the The warrant affidavit robbery charge and the fact supporting facts the included the if that he would kill him complainant told the that for incident. appellant was arrested the testimony is within the
The admission of rebuttal
Jones,
sound discretion of the trial court. Commonwealth
(1992).
challenged
530 Pa.
The
testimony
implication
by
created
the defense
rebutted the
robbery
question.
had not
the
in
Be
committed
during cross-examina
opened the door
cause defense counsel
tion,
of
for the trial court to
it was not an abuse
discretion
Additionally,
testimony.
immediately fol
allow this rebuttal
testimony,
trial court instructed
lowing
investigator’s
the
the
robbery conviction was
jury relevant
the
evidence
appellant’s penalty hearing
of
only
credibility
to
the
evaluate
testimony
underlying
and that
facts
the conviction were
the
limiting
to
We find that
irrelevant
that assessment.
and,
con-
barring evidence to the
instruction was sufficient
this instruction.
followed
trary,
presume
will
Baker,
Accordingly, no relief is
supra
Appellant tо the contents permit defense counsel examine failing robbery charges prior for probable affidavit of cause asserts reading it into evidence. investigator that, granted request defense counsel’s view had the court document, inflammatory and would have seen the he Initially, requested redaction. we prejudicial statements request properly court denied defense counsel’s note that the showing it to prosecutor document while the to view the only during for rebuttal The document was used the witness. claim purpose refuting a defense penalty hearing improper arresting police engaged had conduct— also not commit. The trial court appellant for a crime he did subject pre that the affidavit was not properly determined exculpatory contain information discovery, trial as it did not was on to the murder for which and had no relation reveals that trial. A further review of the record affidavit to prosecutor to turn over the court ordered prosecutor’s at the conclusion of the re-direct defense counsel request counsel did not examination of the witness. Defense document and instead cross- order to examine the recess relating the affidavit. the witness about matters examined claim.23 Accordingly, no relief is due on this *27 Next, alleges trial court erred admit- appellant the drug activity. The court ting appellant’s previous evidence of limine motion in precluding initially granted appellant’s had presenting appellant’s from evidence of the Commonwealth in drug-trafficking during its 1992 conviction for case-in-chief failing grant Appellant that the trial court erred for 22. further claims robbery supporting after the affidavit the warrant mistrial Because, charge evidence. we have concluded that the was read into evidence, properly we find that the trial court trial court admitted properly for a mistrial. also denied the motion Moreover, allegation provid- there is no had not been pleaded guilty; copy the affidavit at the time that he ed with a therefore, already arguably in his control or at least such evidence was knowledge. within his However, penalty phase. the court its ruling conditioned appellant presented mitigating on whether evidence that prior drug appropriate would make the conviction rebuttal Appellant evidence. took stand on during his own behalf penalty phase mitigating asserted the “catch-all” regarding any circumstance mitigation other evidence of con- cerning his character and record and the circumstances of the See, 9711(e)(8). § offense. 42 Pa.C.S.
In an effort show that did not earn money by dealing drugs prosecution as alleged, appellant testified on direct examination living that he made his as a professional correctly boxer. The trial court determined that testimony opened this door prosecutor inquire for the on ways cross-examination about other which money. LaCava, 160, 188, made Commonwealth v. 542 Pa. A.2d (1995)(prosecutor correctly questioned de concerning because, fendant what he told a witness having “opened direct, the door” to subject on defendant could complain not because the Commonwealth chose to further door). examine what was behind Appellant testified on cross-examination that money boxer, he earned as a tailor and pool hustler. He further testified on cross-examinatiоn that Jamaican drug-dealers once solicited him to work for as them security guard but he declined the offer. denied that he became involved in selling drugs. N.T. at 138. rebuttal, prosecutor impeached appellant’s testimony by presenting of appellant’s evidence selling arrest for drugs October of an arrest that resulted in a conviction in April of 1992. Because this properly evidence was admitted to rebut testimony that he drugs, never sold this claim is meritless.
Appellant next claims that
court erred in
providing
with
examples
seven
of aggravating circum
stances
failing
provide
while
any examples of mitigating
circumstances.24 The law of this Commonwealth does not
technically
24. This claim
appellant's
object
waived due to
failure to
Nevertheless,
trial.
we will
pursuant
address the issue
to the relaxed
Zettlemoyer, supra,
waiver rule.
at 26 n.
Next, that, argu closing appellant during asserts miscon penalty prosecutor ment in committed phase, referring testimony duct Natalie Grant.25 by to striken closing prosecutor N.T. at 10-11. The mentioned 2/3/99 persons testimony one of whose Natalie Grant was supported killed victim appellant the conclusion be object drug relationship gone cause had sour. Trial counsel closing trial court sustained the ed assertion. The objection jury disregard prosecutor’s and ordered the contrary, is comments. Absent evidence to the Baker, presumed to have followed the court’s instructions. Additionally, at 672. this statement supra, at A.2d prosecutor light error in other admissi harmless drug was ble evidence the murder related.26 object technically appellant's at claim is waived due to failure This 25. Nevertheless, pursuant we will address the issue to the relaxed trial. supra, Zettlemoyer, 942 n. 3. waiver rule. at 26 n. A.2d at Angelic he Kirkman that the victim had told her that testified given supposed drugs sell had not drugs. testimony money Additionally, for the N.T. 26-30. 2/1/93 admitted, objected that was not to and thus Natalie Grant testified that buy identify drugs which asked her to from he could houses gave pager her his number to call with that information. N.T. at 7-10. *29 trial counsel in the penalty phased Ineffectiveness of appellant’s claims of assistance We next address ineffective First, during penalty phase. appellant claims of counsel failing Angelic for question that trial counsel was ineffective to regarding competency ap- to it testify Kirkman her because drugs falling was of peared she under the influence However, of asleep while on the witness stand. a review the question regarding record reveals that counsel did Kirkman using drugs falling asleep whether she was or was on the 33-34, 65-67, Therefore, stand. N.T. at 76-77. this 2/1/99 claim is meritless. prejudiced also claims that defense him counsel
by stating in closing argument his was about the case drugs. Appellant question raised this claim the form of a review, presented for but fails to develop by point- this claim ing specific portion to the of closing argu- defense counsel’s Rather, objects. brief, ment to which he in appellant’s he challenges only prosecutor’s closing argument, not defense closing argument, counsel’s prosecutor where the mentioned drugs connection with and asserts that defense failing object counsel was ineffective for prosecutor’s to the argument.27
We have portion prosecutor’s reviewed the closing by appellant referenced prosecutor’s and find that the statements were fair on presented comment the evidence at trial that was in dealing drugs involved and that the drug murder was related. The statements not inflam were matory prejudicial or under the circumstances. Several wit nesses had regarding appellant’s testified with involvement Thus, drugs.28 defense counsel not failing inеffective for object. Specifically, prosecutor stated: 27. yesterday people testily When he took the stand behalf, and had on his dealing drugs if there awas real reason for his activities in honesty killing and there was a real of sense and true remorse of his involvement, Vaughn Christopher drug of because of he would have have, you; time, told he would have admitted it like a man and he would at you mercy. asked N.T. at 7. During penalty phase, presented the Commonwealth the testimo- ny Angelic of drug Kirkman that had killed the victim over 9711(h)(3), has § this Court
Finally, pursuant to Pa.C.S. affirm the sentence.of death unless we determine duty that:
(i) preju- product passion, death was the the sentence of factor; any arbitrary or dice other (ii) one support findings least the evidence fails (d); or specified in subsection aggravating circumstance (iii) disproportionate is excessive or the sentence of death cases, considering both the imposed in similar penalty crime and the character and record circumstances of the the defendant.29 *30 below, reviewing the record we conclude
After passion, preju of imposed product was not the the sentence factor, arbitrary upon but rather was based any dice or other addition, eyewitnesses. we find that testimony of the aggravating to establish the factors the evidence was sufficient a jury: appellant knowingly grave created by found person in addition to the victim of danger risk of to another offense, 9711(d)(7), § 42 and that at the time Pa.C.S. competition or in killing, victim was or had been involved sale, manufacture, or illegal in the distribution with substance, delivery any of controlled or counterfeit controlled killing from or was related to the association and the resulted activities, 42 appellant’s illegal competition promote or to 9711(d)(14). § Pa.C.S.
transaction,
26-30,
previous
appellant’s
and
N.T.
at
established
2/1/93
possession with intent to distribute cocaine. N.T.
conviction for
2/2/93
Finally,
testimony
objected
and
in
that was not
thus
160-62.
admitted,
asked her to
Natalie Grant had also testified
drugs
gave
pager
identify
buy
her his
houses from which he could
to call with that information. N.T.
at 7-10.
number
25, 1997,
Assembly repealed 42 Pa.C.S.
June
the General
29. Effective
l(3)(h)(iii),
required.
pursuant
§
which this review was
Howev
971
er,
appeal
proportionality all
on direct
we continue to review for
cases
prior
imposed
tо that date. See
in which the sentence of death was
Gribble,
62,
denied,
(1997),
Pa.
Justice SAYLOR files a opinion which Chief Justice FLAHERTY and join. Justice ZAPPALA
SAYLOR, Justice, concurring. join
I majority opinion, save for the conclusion that the victim’s out-of-court statement “that up he had f-ed package of dope belonged to [Appellant]” was admissible under the exception state mind hearsay to the I rule. permit would not the state of mind exception employed, to be here, as it is support general admission of a statement *31 memory of or past event, about a belief as hearsay traditional fabrication, dangers of faulty memory and narration incorrect implicated by Moreover, are such use. since this manner of application could statements, be extended to a range broad of effectively it view, undermines hearsay rule. In my application of the state of mind exception should be reserved for statements of intention offered to establish that a declar- therewith, ant in conformity see, acted e.g., Commonwealth v. Prothonotary 30. The of this Court is directed to transmit to the Gover- trial, complete nor's office the full and sentencing record of the hearing, imposition by Supreme pursuant sentence and review Court 42 t(i). § Pa.C.S. 971
304
Collins, 418, (1997), 46, 59-60, cert. Pa. 703 A.2d 424-25 550 (1998); denied, 538, 119 142 447 525 U.S. S.Ct. L.Ed.2d mental directly which indicate declarant’s statements made, where the state at the time the statement See, e.g., of mind declarant’s state is at issue the case. Auker, 521, 547, 1305, 1319 v. 545 Pa. Commonwealth 803(3).2 (1996).1 Pa.R.E. generally See concerning hearsay Because I believe evidence our should not have been admitted under victim’s statement rules, I for would find that counsel was ineffective evidentiary I failing lodge appropriate objection. agree an do with however, majority, opinion, reasons stated its trial. prejudice such did not outcome ineffectiveness this join ZAPPALA Chief Justice Justice FLAHERTY concurring opinion. statements, regard reliability may
1. With these be inferred forms of spontaneity then-existing because of and reflection of a condition th emotion, McCormick, (5 Evidence, § mind see at 217 or nevertheless, ed.1999); “ought accom out-of-court statement to be other, inconsistent, panied by shall, Mar not evidence.” Commonwealth 512, 523, (1926), Pa. 135 A. in Comment to cited 803(3). hearsay Additionally, pursuant where Pa.R.E. admitted limiting exception, accompanied the state of mind it should be Brown, generally instruction. See United States v. 490 F.2d (D.C.Cir.1973). estates, 803(3) would specialized In the context of decedents Pa.R.E. memory prove permit of a or admission statement of belief offered execution, revoca- the fact tion, identification, or believed if it relates to the remembered will. or terms of the declarant’s