*1 must reverse the sentences of death and remand for a new penalty hearing.
861A.2d 898 Pennsylvania, Appellee, COMMONWEALTH
v. FLETCHER, Appellant. Lester Supreme Pennsylvania. Court April
Submitted 2004.
Decided Nov. *8 Dolfman, Douglas Hill, Lee Esq., Chestnut for Lester Fletcher. Burns, Esq., Philadelphia, for Esq., Amy Zapp,
Hugh J. Pennsylvania. of NIGRO, CAPPY, C.J., CASTILLE, BEFORE: BAER, NEWMAN, SAYLOR, EAKIN and JJ.
OPINION Justice NEWMAN. this from brings appeal1 direct (Appellant)
Lester Fletcher of by the Court Common Judgment imposed of Sentence (trial court), which sentenced Philadelphia County of Pleas murd first-degree two following him to death convictions raised we reviewing by Appellant, After the claims er.2 of death. affirm the convictions sentences AND HISTORY FACTS PROCEDURAL record, of the we summa- independent of review part As our evening trial. On presented at rize the evidence 23, 2001, friend, and his Bernard Appellant, Friday, February (Otto), (Mathis), of David Otto drove the residence Mathis City Philadelphia, to at in the located 2061 Orleans Street Otto, along crack quantity cocaine. deliver substantial (Panvini), girlfriend, up- Mario Panvini rented with owner, from its Kenneth bedroom the house stairs middle (Schofield). basis, supplied regular On a Schofield cocaine, sell from Otto would then with crack which Otto the house. inside Street, and Mathis at 2061 Orleans arriving
After waited for they not home. While that Otto was were informed return, Mathis, and several other individu- Appellant, Otto cocaine that began smoking the crack als inside the house These includ- to deliver to Otto. individuals Appellant intended (Daehl- Daehling (Stinger) and Kenneth Kimberly Stinger ed Judgment appeals jurisdiction from a over direct 1. This Court has imposed. 42 Pa.C.S. penalty death has been Sentence in which the 9711(h). § 2502(a). § Pa.C.S. *9 of the back bedroom upstairs rented the together who ing), for (Mawson), crack cocaine who sold house, Mawson Frank house, By and Schofield. at the occasionally stayed and Otto complete- others had and the morning, Appellant following to the brought Appellant cocaine that the crack ly consumed house. annoyed learn day, he was the next
When Otto returned entire deliv- had consumed the and the others Appellant that defense, that responded Appellant In his of crack cocaine. ery dispose that could to him and he belonged the crack cocaine him to provide then asked Otto Appellant pleased. it how he aAs crack cocaine to smoke. with additional and the others Appellant erupted an between argument of this inquiry, result end, and the supply Appellant agreed In the Otto Otto. therefore, and, group more crack cocaine others with day. of the the remainder throughout continued to smoke house at inside the day, that several witnesses Later .25 pearl-handled with a Appellant Orleans Street observed that, occa- on several testified pistol. caliber The witnesses it to the sions, displayed handgun out the Appellant pulled addition, Panvini, Stinger, house. other individuals Otto with they Mathis observed Daehling, and testified of his waistband .380 caliber concealed pistol chrome pants. wife, King (King), Lisa Saturday evening, Appellant’s
On husband. To avoid at in search her appeared the house upstairs into the by King, Appellant disappeared detection hiding, with Panvini. While bedroom of the house middle while King Panvini that he could not see informed Appellant Panvini, I to rob got “I’m broke. also told high. Appellant (Notes of lady.” old go my I can’t home broke somebody. 76). 26, 2002, told (N.T.), being After Testimony page June house, was not at the Appellant and Otto by Schofield car, which was inside his King proceeded wait Appel- inside King Street. remained parked along Orleans hours; however, left Appellant never lant’s vehicle for several later, King and Mawson provided Otto the house. Some time again, Appellant car. home in Once with ride Street, spent night and Mathis at 2061 continuing Orleans to smoke crack into early morning cocaine hours. 25, 2001, morning Sunday, February
On the *10 and again engaged Otto became in a argument heated over drugs. Appellant supply wanted Otto to him with crack more cocaine, or, alternative, in money the with to purchase addi escalated, tional crack cocaine. As argument the men also as quarreled to the whereabouts of car Appellant’s keys, which, according to had in his Daehling, possession.3 Otto Also, both men allegedly missing bickered over bullets from .25 Appellant’s handgun. caliber Later that morning, Appellant and Mathis left the at house 2061 Orleans and for Street went a short drive in Appellant’s car. As Appellant and Mathis for approximately drove ten minutes, the two men smoked the remainder the crack that supplied cocaine Otto had previous day. While in the car, Appellant told Mathis that go “he couldn’t home to [his broke; (N.T., wife] had to get money.” he some June 173). page residence, Upon returning to Schofield’s house; Appellant parked meanwhile, his car and entered the lagged Mathis to a cigarette. behind smoke house, Once inside Appellant and Otto again became engaged in an argument intense over drugs. Shortly before a.m., 26, 2001, 10:00 February on the argument became stronger First, testified, and gunshots erupted. Ap- Mawson pellant shot at point-blank range Otto with his .25 caliber handgun. Mawson further that Appellant testified then pro- to ceeded shoot him in at point-blank the head with range same .25 pistol. Finally, Appellant caliber shot Schofield in the head at with range close Otto’s .380 handgun. caliber
Panvini and who Daehling, were both in the upstairs back time, at bedroom the that they gunshots testified heard three emanating from Daehling that, inside the house. testified hearing gunshots, after up Stinger he woke so that previous night, Daehling 3. The keys Otto told had the to However, possession. car in being his after confronted on that, keys, Daehling whereabouts of the car informed in fact, keys Appellant’s Otto had the car. through could attempt escape three tenants bedroom however, down- window. Instead of Panvini rushed escaping, in a chair living gunshot stairs to find Otto seated room with a falling wound to the head. Panvini also noticed Mawson backwards his head. pressed against with hand On couch, living limp body room Panvini observed the of Schofield later, with a to the head. A short gunshot wound time Stinger and followed Panvini downstairs to Otto Daehling see point, with a wound to the side of his head. At this bullet Stinger police and Panvini the incident to reported called operator. the dispatch scene, waiting for at the Panvini police
While arrive and Daehling potential drugs money. searched Otto that, Panvini testified prior shootings, Otto had $1,000.00 of in personal money his coat pocket, $100.00 proceeds drug pocket.4 from sales his back After *11 pants Otto, however, $1,000.00 Panvini searching discovered that the Likewise, was from missing pocket. Otto’s coat Panvini and Daehling noticed that .380 handgun Otto’s caliber had been removed from the of his pants. waistband When Panvini and Daehling house, stepped they outside the also that noted Appellant’s was longer parked along car no Orleans Street. that,
Mathis testified no more than a few minutes after house, Appellant entered the he heard the sound of gunshots. that, Mathis further min- approximately testified five to ten house, utes watching Appellant after enter Appellant quickly “walking exited the house fast” his car. real toward 251). (N.T., 27, 2002, page June then instructed car, in Mathis to don’t “get say nothing.” Id. at 178. car, Appellant’s Once inside Mathis as Appellant watched a handgun pants pocket stuffed into and a large one bundle of cash into another. then to to proceeded drive a Street, friend’s on house Collom which was near his own residence. trial, keeping drug At Panvini testified Otto that had a habit Panvini, money separate. personal money According and to Otto was $1,000.00 saving personal money they so that could rent an apartment together in the near future. Street, Appel- Mathis the house on Collom observed
Inside in his that had money previously lant count the he stuffed Thereafter, $1,000.00. to which amounted pocket, wife, Appel- at the Mathis testified that King, arrived house. “the just job” lant did a King informed “he trying hold us in the on Orleans Street were to people house that, moreover, Appel- Id. at 184. Mathis testified hostage.” everyone in the about shoot- bragging lant to house was mother-fuckers, that he had to “bust them ings, emphasizing Mathis, According Appel- Id. at 255. no witnesses.” leave You “say nothing. house to everyone lant instructed Id. nothing.” didn’t see shootings, per after the rescue police
Within minutes emergency to 2061 When responded Orleans Street. sonnel alive, arrived, Mawson still but personnel Otto and were immediately transported condition. Both men were serious meantime, In at 10:09 for further treatment. hospital at the a.m., pronounced medics dead fire rescue Schofield pro at 2:10 Otto was day, p.m., Later that same scene. of death for both hospital. dead at the The cause nounced to the single gunshot was wound victims determined be gunshot Mawson survived wound Remarkably, head. his head.5 Street, police the scene at 2061 securing
After Orleans signs struggle and found investigated house neither area, entry. police nor room signs living forced .380 cartridge casings two caliber and one recovered .25 fired .25 police The also found one cartridge casing. caliber fired and one .380 caliber round in this same caliber live round live *12 addition, on an table. police uncovered a note end area. nick- Appellant’s acknowledged The name which is “Manny,” name, on of with the piece paper, along was transcribed of Collom Street residence. telephone number 21-22). 26, 2002, (N.T., pages June from of the fragments also bullet each police The recovered recov- Specifically, fragments .25 caliber bullet were victims. however, head, is now 5. result of the trauma to his Mawson As a severe perform tasks. legally requires blind the aid of menial and others Mawson, caliber and a .380 of Otto and from the heads ered All of Schofield. from the neck was recovered fragment bullet individual from the fragments recovered of the bullet three car- consistent with the fired to be victims were determined found at 2061 Orleans Street. casings tridge charged and 27, 2001, was arrested Appellant On March murder,6 murder, attempted first-degree counts of with two (PIC),8 and relat of crime an instrument robbery,7 possessing trial, jury Appellant a July following ed offenses. On for murder first-degree of two counts of guilty found was Schofield, murder for the attempted of and killings Otto Mawson, robbery, PIC. shooting 8, 2002, penalty phase court conducted a the trial July On mur first-degree on the two sentencing Appellant for hearing present hearing, At the Commonwealth convictions. der to the circumstances following aggravating three ed the (1) Appel of Otto and Schofield: to the murders respect with in perpetration while killings lant committed the (2) offenses, knowingly Appellant committing felony;9 in addition to to another person risk of death grave created (3) of another victims;10 has been convicted of the offenses before or at the time committed either murder Schofield, to the murder respect at issue.11 With circum aggravating a fourth presented also prosecution was a jury, namely Schofield stance felony by Appellant committed to a murder or another witness testimony his preventing purpose and was killed such involving criminal any proceeding against Appellant following mitigating two presented the offense.12 (1) criminality capacity appreciate circumstances: § 901. 6. Pa.C.S. §
7. 18 Pa.C.S. 3701. § 18 Pa.C.S. 907.
8. 9711(d)(6). §
9. 42 Pa.C.S. 9711(d)(7). §
10. 42 Pa.C.S. l(d)(ll). § Pa.C.S. 9711(d)(5). §
12. 42 Pa.C.S. *13 his conduct or to conform his conduct to the of requirements (2) law was substantially impaired;13 the and any other evi mitigation dence of concerning character and record and (the the circumstances of his offense catchall mitigator).14 The jury unanimously found the existence of the three aggravating presented circumstances with to mur- respect aggravating der Otto the four presented circumstances killing as to the jury Schofield. The also found the exis- circumstance, tence of one mitigating namely capacity that the of Appellant appreciate of his criminality conduct or to conform his requirements conduct of the law was substantially impaired. July On unanimously aggravating determined outweighed circumstances and, mitigating circumstance accordingly, Ap- sentenced pellant to death both counts of first-degree murder. 22, 2002, August
On formally the trial court imposed sen- tences of death for both murder convictions. court The also (1) sentenced to: a consecutive term of twenty forty years’ imprisonment for attempted murder convic- (2) tion; a concurrent term of ten to twenty years’ imprison- (3) conviction; ment for robbery a consecutive term of two to years’ imprisonment five for the PIC conviction. This timely direct appeal followed.
DISCUSSION I. Guilt Phase A. Sufficiency the Evidence argues first the evidence presented during guilt phase was support insufficient to his first- degree murder convictions. In particular, Appellant contends that his drug-induced intoxication at the time the killings negated to kill specific required intent to sustain a convic tion for first-degree murder. 9711(e)(3). §
13. 42 Pa.C.S. 9711(e)(8). §
14. 42 Pa.C.S.
matter,
As an initial
this Court is
required
review
sufficiency
evidence to sustain a conviction for first-
*14
in
degree
every
murder
case which the trial court
a
imposes
Zettlemoyer,
v.
16,
death. Commonwealth
sentence
500 Pa.
denied,
937,
(1982),
cert.
970,
454
942
3
A.2d
n.
461 U.S.
103
denied,
2444,
(1983),
rehearing
77
1327
S.Ct.
L.Ed.2d
463 U.S.
1236,
(1983).
31,
104 S.Ct.
A person
guilty
first-degree
is
murder where the
proves
the defendant
with a specific
acted
kill,
killed,
intent
a
being
to
human
was unlawfully
the accused
killing,
did
killing
and the
was done with premeditation or
Wesley,
deliberation. Commonwealth v.
7,
562 Pa.
753 A.2d
Hall,
204,
(2000);
Commonwealth v.
269,
208
549 Pa.
701 A.2d
denied,
190,
cert.
(1997),
1082,
196
1534, 140
523 U.S.
118 S.Ct.
(1998).
See also 18 Pa.C.S.
2502(a)
(d).
§
L.Ed.2d 684
The
kill
specific intent
to
is
element
distinguishes
first-degree murder from the
of murder. Com
degrees
lesser
Smith,
monwealth v.
65,
1086,
548 Pa.
694 A.2d
1088
denied,
847,
118,
525
119
U.S.
S.Ct.
142
95
L.Ed.2d
(1998). The Commonwealth may prove the
to
specific intent
Weiss,
kill with circumstantial
evidence.
Pa. 633 trial show that the defendant was unable at must presented kill was so overwhelmed because he specific form intent losing his faculties at by drugs point to the overpowered or Marshall, at committed. time was the crime Moreover, faculties and sen whether defendant’s 1104-05. so that he could not drugs so with were overwhelmed sibilities solely to kill is of fact question specific form the intent all, any, who is free believe jury, of the province within the intoxication. Common testimony regarding or none of (1984), cert. Pa. A.2d Stoyko, wealth v. (1984) 83 L.Ed.2d 469 U.S. (“intoxication evidence, negate attempt an offered of the first necessary for a conviction for murder intent no burden on the Commonwealth degree, imposes new *15 which for defendant the Common presumption creates no new overcome”). labor to wealth must case, presented by the instant several witnesses the drug pre- use detailed extensive Commonwealth result, As a trial the ceding deaths of Otto and Schofield. the or “[vjoluntary drug that intoxication jury court instructed the degree from first a crime of murder may condition reduce 137-38). (N.T., By then- July pages degree.” third verdict, however, that jury clearly Appel- did not believe the him the voluntary forming intoxication from prevented lant’s a murder con- required first-degree to support intent specific earlier, credibility noted such are viction. As determinations in of the to resolve its role province jury within the exclusive upon Stoyko, 475 A.2d at Based as the fact-finder. trial, could at have presented jury abundant evidence requisite spe- acted with the reasonably Appellant found that kill. cific intent to evidence, and all reasonable
Ultimately, aforementioned therefrom, light in most when viewed inferences deducible winner, is as more to the verdict favorable Commonwealth first-degree all of the elements of than sufficient establish From pre- doubt. the evidence beyond murder reasonable (1) trial, that: at could have concluded Otto sented (2) killed; shot both Appellant unlawfully were and Schofield (3) head; acted Appellant range point-blank victims at (4) Schofield; and to kill intent Otto specific with the Accord- with deliberation. premeditation acted Appellant find, law, that the evidence was as a matter of we ingly, of first-degree on both counts to convict sufficient murder.
B. the Evidence Weight of of the evi weight also that the asserts A murder convictions. first-degree against dence militated claim that the verdict was upon trial for a new based request granted be only of the evidence will against weight to the contrary is so jury’s situation where the verdict extreme v. justice. Commonwealth as to shock one’s sense of evidence 519, 528 Pa. 830 A.2d Tharp, 574 (2004) (citing 1045, 124 158 L.Ed.2d U.S. Brown, Pa. v. (1994)). of record are facts and inferences Unless there discretion, must an court appellate abuse of disclose a clear trial court that a verdict ruling of a reversing from refrain Id. weight of the evidence. against was not above, including as outlined testimo- the evidence Given Mawson, Mathis, and the testimony eyewitness ny at 2061 Street individuals Orleans testimony present of other cannot be said killings, certainly it before and after the justice. Accord- in this shock one’s sense the verdicts case jury’s that the verdicts reject Appellant’s contention ingly, we *16 weight the of the evidence. against were Challenge Batson
C.
in
court
maintains that
the trial
erred
dire,
because,
the
during voir
jury panel
to strike the
failing
to
challenges
its
exclude
peremptory
exercised
prosecution
in violation of Batson v.
from the venire
African-Americans
(1986).
1712,
79,
jurors valid, from without panel providing the a race-neutral for such explanation strikes. Batson, the United States Supreme Court estab that Equal
lished Protection Clause the Fourteenth Amendment precludes racially the exercise of discriminatory peremptory challenges by prosecution in state criminal trials. Most notably,
Batson forth a for three-part examining set[s] test a crimi- nal claim that a prosecutor defendant’s perempto- exercised ry challenges racially first, a discriminatory manner: defendant must make a prima showing that the cir- facie give cumstances rise to an that prosecutor inference jurors race; struck one or prospective more on account of second, if prima made, showing is the burden facie shifts to prosecutor articulate race-neutral explana- striking juror(s) issue; third, tion-for at the trial court must then make the ultimate determination wheth- er the has defense carried its burden of proving purposeful discrimination. Harris, 489, v. 817 A.2d 1042
(2002), 540 U.S. 124 S.Ct. 157 L.Ed.2d (2003) Basemore, 756 (citing Commonwealth v. Pa. (2000)).
To establish a prima case purposeful facie Batson, discrimination pursuant the defendant must show (1) that: or he she is a of a cognizable member racial group; (2) the prosecution exercised its peremptory challenges to race; (3) remove from venire members of such other relevant circumstances an combine raise that inference prosecution potential juror(s) excluded the for racial reasons. Batson, Id. A few years after its decision in Supreme Court, Ohio, Powers v. 499 U.S.
L.Ed.2d necessary modified the elements estab lishing prima so as case to not require facie juror defendant and the excluded share racial the same identi such, As ty. the necessary prima case of purposeful facie discrimination may be “by showing established totali-
423
ty of
facts gives
the relevant
rise to an inference of discrimina-
tory
purpose,
example,
pattern
from a
against
strikes
minority jurors
particular
included
venire or from the
manner of
prosecution’s questions
during
statements
Basemore,
(internal
voir dire examination.”
“Where the of a prima case of a facie for, Batson violation is this called Court has generally en forced a requirement of a full and complete record of the violation, asserted as it would impossible otherwise be meaningful conduct appellate review of the motivations of prosecutors cases, in individual particularly when such review often occurs years after trial.” Id. See also Common 258, (1999) wealth v. 559 Holloway, 1039, Pa. 739 A.2d 1045 (“[w]here an Appellant fails to make a record for review a Batson this challenge, Court is unable consider a claim that trial court failed to find a prima case under Bat- facie son”). This full and complete record requirement necessi tates that the defendant “make a record identifying the race of venirepersons by Commonwealth, stricken the race of prospective jurors acceptable to the Commonwealth but by defense, stricken and the racial composition the final jury.”15 Bronshtein, 460, v. 547 Pa. 691 A.2d 907, (1997), denied, 915 cert. 936, 522 U.S. 118 S.Ct. (1997).
L.Ed.2d 269
Horn,
Recently,
Holloway
(3d Cir.2004),
v.
A of the existence finding was 9711(d)(5) victim requires proof §in forth set jury or grand in a testimony pending prevent killed aggra- particular of this The existence proceeding. criminal found, crimi- pending a may be absent circumstance vating direct, by the facts establish only nal where proceeding, evidence, killing that the resulted than circumstantial rather This witness. potential a from the intention eliminate that an individual showing by simply will not be met burden felony by committed or other who witnessed murder by was also killed the defendant. defendant omitted). (internal Daniels, citations See A.2d at 1179 Fisher, v. also Commonwealth *19 81, denied, 829, 148 (1999), 121 S.Ct. cert. 531 U.S.
1239-40 (d)(5)] (2000) (“[i]n aggravating interpreting [the 43 L.Ed.2d of a factor, killing that it the encompasses we have determined witness, proceeding no criminal when there is even potential murder, if the killer’s intention at time of the pending the witness is established potential victim as a the eliminate evidence”). through direct that evidence
Here, presented direct the Commonwealth him from as testifying to prevent killed Schofield Appellant of Otto. robbery murder and Appellant the against witness testimony Commonwealth offered particular, shortly house Mathis, Appellant to friend’s accompanied who that: Notably, Mathis testified shootings. after the what he did. everybody the house [Appellant] telling was said, it’s in quote, quotes, and I bragging was sort of he He mother-fuckers, bust them had the quote: [sic] he said He don’t witnesses, quote told us quotes. leave no close He nothing, quote. end say nothing. You didn’t see 255) added). (N.T., 27, 2002, (emphasis page June mother-fuckers, no “bust leave admission that he had to them shootings and witnesses,” shortly made after the which was Mathis, that by direct evidence by overheard established him as a potential to eliminate killed Schofield 426 evidence,
witness. Based
this
trial
upon
direct
court did
not
in submitting
“prosecution
err
witness”
aggravator
jury.16
445,
See Commonwealth v.
522
Strong,
Pa.
563
479,
(1989),
denied,
1060,
A.2d
484
cert.
494 U.S.
110 S.Ct.
1536,
(1990) (defendant’s
Nonetheless, Appellant maintains “numerous in consistencies in Mathis’ testimony Mr. did not merit submission of the [‘prosecution aggravating witness’] circum jury.” However, stance Brief for at any inconsistencies in testimony Mathis went to the weight evidence, to be accorded such which is exclusively for the fact, all, finder of who is free to believe or part, none of the in determining evidence credibility the witness. See Johnson, Commonwealth v. 542 Pa. 519 U.S. L.Ed.2d
(1996) Therefore,
.
contrary
position
of Appellant, any
testimony
inconsistencies Mathis’
did not render the evi
dence insufficient to
trial
necessitate
court disallow
the submission of
prosecution
aggravator.
witness
See
Small,
Commonwealth v.
A.2d
672 n. 6
*20
(1999),
829,
121
U.S.
As an initial we note that the double jeopardy protections by Pennsylvania afforded the United States prohibit prosecu Constitutions are coextensive and successive and multiple punishments tions for the same offense. Com Cosnek, monwealth v. 575 Pa. 886 A.2d 873 n. 2 (2003); v. Buffington, 574 Pa. (2003). Gibbs, In Commonwealth v. A.2d 133 this Court explained:
Aggravating circumstances not separate penalties are or offenses, but guide are standards to making choice between the alternative verdicts of death and life imprisonment. judge’s finding any particular The aggra- vating does not circumstance convict a itself defendant (i.e. require penalty), the death failure to find any particular aggravating acquit circumstance does not a defen- (i.e., dant preclude death penalty).
Gibbs, 626
Arizona,
A.2d at
(quoting
Poland v.
476 U.S.
147, 156,
(1986)).
106 S.Ct.
murder” aggravating circumstance violates the Eighth Amendment and Due Process of the Clause Fourteenth Amendment to the United States “In Constitution. the con-
428 an aggravator, to the of survive challenge of a breadth
text
aggravating
‘an
circumstance
Eighth
challenge
an
Amendment
for
persons eligible
narrow the class of
genuinely
must
justify
of a
reasonably
imposition
and must
penalty
death
on
others
compared
sentence
the defendant
more severe
”
Johnson,
v.
572 Pa.
Commonwealth
guilty
found
of murder.’
563,
(2002)
Stephens,
588-89
Zant v.
(quoting
815 A.2d
(1983)).
1153-54 murders, is multiple not which includes the circumstances Accordingly, constitu “arbitrary capricious”). tional claimsfail. Statistics on Commutation
C.
trial court
in refus
contends that the
erred
include,
at
charge
penalty phase,
in its
to the
ing
imprisonment
of life
sentences
statistics on the commutation
In
years.
crafting
over
preceding
the Commonwealth
decision of
argument, Appellant
upon
plurality
this
relies
Pa.
Trivigno,
v.
this Court
(2000)
(opinion announcing
judgment
A.2d
court).
stated:
Trivigno,
Opinion
lead
required
instruction17 is
now hold that when Simmons
We
has
the defendant’s future
argued
the prosecution
because
*22
jury
...
inform
trial court
should
the
dangerousness, the
eligible
that a defendant is not
that a life sentence means
a
power
grant
that
has the
parole,
but
the Governor
or
if based on the
commutation of a sentence of life
death
of Pardons
a
following public
of the Board
recommendation
available
Further,
relay any
trial court should
hearing.
the
of life
relating
percentage
information
to the
statistical
last several
that have been commuted within the
sentences
years.
(footnote added). Appellant
Trivigno,
that,
argued
maintains
the
the issue
because
dangerousness during
of his future
the cross-examination
and at closing argument,
jury
his mother
the
should have been
on
statistics of commutation.
instructed
During
penalty phase hearing,
prosecutor inquired
into
was
Appellant’s
prior
whether
mother
aware
her son’s
convictions for robbery
According Appellant,
and assault.
testimony
this
as a
Commonwealth elicited
means
However,
arguing Appellant’s
dangerousness.
future
this
consistently recognized
regarding
Court has
that
a
evidence
past
or
impli
defendant’s
violent convictions
conduct does not
future dangerousness.
cate the issue
his or her
Common
435,
403,
(2003),
wealth v.
574 Pa.
832 A.2d
Champney,
—
denied,
U.S.-,
2906,
cert.
wealth future a “statis tics on commutation” instruction was not warranted.
Nevertheless,
trial court informed penalty phase
de-
“Well, if
statistics
commuta-
you
[on
fense counsel:
have those
certified,
you
they’re
give
know that
I’d be
happy
tion]
”
27).
(N.T.,
8, July
page
response,
them....
defense
Simmons,
life,”
jury
A
"life
or
means
instruction directs the
that
imprisonment
permit parole.
sentence of life
does not
See Simmons v.
Carolina,
(1994).
114 S.Ct.
South
512 U.S.
If a life can convince the Board of Pardons that his prisoner commuted, is, or her sentence should be made shorter of Pardons this to governor, and the Board recommends If governor power has the to shorten the sentence. *23 governor follows the Pardon Board’s recommendation and sentence, early be released prisoner may commutes the the eligible or in the parole become future.
I’ll you governor tell that the and Board of Pardons You rarely imprisonment. commute a sentence of life can so, they they responsibly assume that do will act whenever not whom prisoner and will commute the sentence a life to they dangerous. believe be 170-71). (N.T., 8, 2002, statistical July pages Even absent imprisonment information on the commutation life sen- Commonwealth, instruc- jury tences the the aforementioned tion, entirety, Accordingly, read in its was proper. when claim warrants no relief. Appellant’s
D. Aside Jury Motion Set Verdict deny that trial court erred in Appellant contends the ing his Motion to Set Aside the death sentences. that should jury’s asserts death verdict have been set and aggravating mitigating aside because the circumstances and, therefore, jury not from box were announced jurors opportunity individual not provided were be assertion, however, findings. as to their This is without polled merit. two the announcement of the death sentence
Following jurors individually were by jury foreperson, verdicts Thereafter, as to with the verdicts. polled agreement their and into jury proceeded the court excused the read record, particular aggrava- from slips, the sentence verdict At mitigating by jury. and circumstances found this ting counsel moved to set aside the verdicts. point, defense occurred: response, following exchange Well, sentence, they polled THE as to the COURT: were two, findings number one. And number those are recorded. jury down. The is still here. If They actually are written wish, I and all you bring they can them out make sure I no agree slips problem with the verdict as written. have that. Do to do that? doing you wish me No, [defense counsel]: MR. SCOTT Your Honor. 26-27).
(N.T., 9, 2002, above, July pages quoted As the trial court by polling offered resolve claim of error jurors open findings. court as to their this Despite offer, Therefore, Appellant expressly refused. is seeking alleged barred from redress for an claim of error that patently rectify he refused to the trial court. before
Regardless, penalty the Commonwealth’s death con- statute requirement tains no aggravating mitigating circum- must orally jury stances be announced from the box and that jurors individually polled must be regarding findings. their Here, § generally See Pa.C.S. trial court dis- missed the findings read their collective into the *24 record from slips. Accordingly, the verdict the trial court did in failing not err to take the redundant of step orally polling jurors from box as findings. to their
E. Prior Convictions Appellant argues that the trial court in allowing erred to the Commonwealth cross-examine his mother during the penalty criminal phase regarding prior Appel convictions. lant insists that improperly the trial court permitted to prior introduce his convictions as evidence of his bad character and to commit criminal propensity acts. 404(a) matter, of Evidence Pennsylvania Rule general
As a of an ac- using on evidence prohibition a broad pronounces conformity “action in there- to character establish cused’s bad Nonetheless, to pursuant proceeding. criminal during a with” of 404(a)(1), to offer evidence may choose an accused Pa.R.E. trait of good In to this prove character. order good his or her of his or to introduce evidence character, may opt the accused commu- a particular associates or within among reputation her 405(a). However, if accused offers such Pa.R.E. nity. to cross- evidence, permitted is the Commonwealth reputation instances regarding “specific witness the character examine Id. question....” trait in of the character probative conduct hearing, the Here, during penalty examination on direct and Ap- counsel occurred between defense following dialogue (Jones): mother, Jones Aliene pellant’s don’t think Q: jury, why you you don’t tell the Why them, don’t penalty. the death Tell ought get [Appellant] me. tell person. that really type that he was
A: I don’t think I just something it day, on that was happened Whatever really that control, he’s not just because beyond was guess harming people. I’m person go around and type of [sic], it like happened it that happened that had sorry can I do? that. What added).18 48-49)
(N.T., 8, 2002, July pages (emphasis cross-examination, questioned prosecutor on response, acts of miscon knowledge particular regarding her Jones accuracy reputation of her to test by Appellant duct occurred following exchange specifically, More evidence. and Jones: prosecutor between the Q: your son your jury a statement You made type person? that the really [sic] is not No, not. A: he’s constituting testimony Jones as Appellant refers to the Insofar as testimony community, this good within the of his character evidence of whether this was purpose and the issue not admitted for was testimony presently before this Court. proper reputation is not
433 Q: conviction for rob- prior of son’s your You’re aware bery?
A: No.
Q: as- convictions for prior You’re aware of three sault? Well, I
A: know of one. 50-51).
(N.T.,
8, 2002,
July
pages
of
Initially,
scope
note that
cross-examina
“[t]he
we
trial court and will
tion is a
within the discretion of the
matter
of that
not be reversed absent an abuse
discretion.” Com
(1997),
Gibson,
71,
1152,
A.2d
1167
monwealth v.
547 Pa.
688
denied,
364,
948,
284
cert.
522
118 S.Ct.
139 L.Ed.2d
U.S.
(1997)
consistently repeated
principle
. This Court has
not
“although
good
may
evidence of
character
be rebutted
misconduct,
by
acts of
a character witness
specific
evidence
knowledge
his or
may
regarding
be cross-examined
her
particular
by
acts of misconduct
the defendant
test
standard
which he
accuracy
testimony
by
of his or her
Busanet,
v.
572
reputation.”
or she measures
Commonwealth
(2002),
denied,
869,
535,
1060,
540
Pa.
817 A.2d
cert.
U.S.
192,
(2003);
v.
Regardless, defense counsel the trial court questioning, prohibited the Commonwealth from as to questioning any Appellant’s prior further Jones time, convictions. At this same the trial court further instruct jury disregard questions ed the the Commonwealth’s re garding convictions. Pursuant to Pa.R.E. Appellant’s prior if may probative “evidence be excluded its value is outweighed by prejudice, the of unfair confusion of the danger issues, jury....” judice, or to the In the sub misleading case estop the trial court Commonwealth from elected the its line of “out of an pursuing questioning abundance 16, 2002, caution.” Trial Opinion, September page Court on Although questions the Commonwealth’s cross-examination objection were the trial court sustained proper, the and a instruction so as questioning line issued curative such, Appellant unduly prejudiced. to ensure that was not As in granting the trial court did not err relief Appellant where necessary none was under the circumstances.
F. Prosecutorial Misconduct claim, As a final asserts that the trial court Appellant erred in his to Dismiss denying prosecutor, during Motion after the penalty phase closing argument, allegedly improper made and prejudicial jury. particular, remarks to the prosecutor improperly contends that the his char- referenced in prior closing argument, thereby preju- acter and record Moreover, dicing jury. the minds of the claims that jury prejudiced by prosecutor’s was further comments alleged on his lack of remorse for the crimes committed. outset,
At by we note that “[c]omments do not prosecutor constitute reversible error unless the un prejudice avoidable effect of such comments would be to jury, forming in their minds bias and toward hostility fixed they defendant so could not weigh objectively evidence Further, render a true verdict. when considering a]ppel- [an
435 misconduct, lant’s claims of prosecutorial it must be noted prosecutor’s do [that] comments not constitute evidence.” Stokes, (2003) Commonwealth v. 576 Pa. (internal omitted). citations and quotations
During penalty phase case, of a capital where presumption innocence no longer applies, the Common wealth is afforded reasonable latitude its arguing position to jury may employ oratorical in arguing for the .flair penalty. Basemore, death Commonwealth v.
A.2d
U.S.
(1992).
When considering the character and background and defendant, record of the demeanor, consider his his compo- sure, actions, his his conduct and his behavior in this courtroom trial, this during how he his acted behavior on morning this murder. There’s been absolutely no remorse, contrition, no no sorrow.
(N.T., 8, 2002, 114-15). July pages In light of Appellant’s presentation of the catchall mitigator, such comments by the appropri- These comments were
prosecutor permissible. were by in to mitigation presented evidence ately response made and, therefore, unduly jury so prejudice did not weigh objectively could not and render they the evidence a verdict. true that,
Nevertheless, claims within the statement, improperly com prosecutor above-quoted However, it is on his lack of well estab remorse. mented that: lished defendant, including apparent of a demeanor
[T]he remorse, a by jury is factor to be considered proper a a that the sentencing phase Recognizing case. capital of trial than the sentencing phase purpose has different against and that phase, privilege determination guilt has no presumption of innocence self-incrimination phase, to the this Court has held application direct latter is comment to show remorse upon defendant’s failure at not least where the comment does amount permitted on the factor focusing an extended tirade undue attention remorse. (2002) Rice, 795 A.2d
Commonwealth v.
court),
announcing the
judgment
(opinion
(2003)
(quoting
Also, jurors,
you
I want to remind
the defendant
on
to remain silent
absolute
founded
the Constitution
right
and,
what-
again,
any
must not draw
adverse inference
you
not testify.
fact
defendant did
soever from the
146-47).
(N.T.,
July 8,
Given that the comments
pages
in
to
introduction
prosecutor
response Appellant’s
were
by the
not
a
on the
mitigator
imply duty
part
catchall
and did
denying
court
not
in
testify,
to
the trial
did
err
Clark,
v.
See Commonwealth
Appellant’s Motion Dismiss.
A.2d
526 U.S.
(1999)
no violation of
(holding
CONCLUSION none claims by We conclude that of the of error raised sufficient to warrant relief. The evidence was by the support aggravating circumstances found Moreover, thorough imposing penalty.19 death after record, review of we have determined that sentences product passion, any not the or prejudice, of death were Accordingly, affirm the improper. factor was we sen the Court of imposed Appellant by tences death upon Pa. County. Pursuant Philadelphia Common Pleas 9711(h)(4). § See 42 Pa.C.S. *29 438 9711(i),
§C.S. we direct the Prothonotary of the Supreme Pennsylvania transmit, Court of to within ninety days, the complete of record this to case the Governor of Pennsylvania.
Justice SAYLOR files a concurring opinion. SAYLOR,
Justice concurring. I concur the majority’s disposition of Appellant’s claims only express my write position respecting the claim of alleged discriminatory practices on part the prosecution in jury selection. regard, this majority initially concludes that Appel lant has not a prima established case under Batson v. facie 1712,
Kentucky,
U.S.
L.Ed.2d
because he
to comply
failed
with this Court’s full and complete
record requirement,
from
deriving
Commonwealth v. Spence,
(1993).
534 Pa.
of whether the excluding discriminated in Indeed, member of the composition defendant’s race. of a is situation solely challenge because he has not undertaken *30 in them this appeal.2
861A.2d 919 Pennsylvania, Appellee, COMMONWEALTH of
v.
Zachary WILSON, Appellant. Supreme Pennsylvania. Court of July 2001.
Submitted 19, 2004. Decided Nov. factors, by many including peremptory decided the defendant’s use of cause, challenges, challenges jurors’ for hardship. claims Thus, inquiry a Batson focuses on whether or not racial discrimina- striking person tion exists in jury, a black from the not on the may jury panel. fact that other blacks remain A defendant can prima make a facie case of discrimination without reference jury’s makeup. racial Likewise, jurors acceptable of the evidence race of to the Common- by wealth place prima who were stricken the defense finds no case, facie as defense strikes are irrelevant to the determination of prosecutor engaged whether has in discrimination. Batson no- suggests support challenge where that a defendant must to the hands, prosecutor’s by showing by actions he that has clean or admitting jurors he too jury.... that struck black from the
Holloway,
(citations
at
quotations
355 F.3d
728-29
and internal
omit-
ted).
reject
I
appeal
would therefore not
a Batson claim on direct
develop
based on the
failure to
information extraneous to
necessary
to establish an inference of discrimination.
however,
explained,
reasoning
As
Holloway
persua
Uderra
is less
sive in
stemming
with an
connection
ineffectiveness claim
from the
Uderra,
lodge
challenge
failure to
a Batson
at trial. See
Pa.
at 511-
situation, requiring
at
a full
either
record,
actual,
discrimination,
complete
proof
purposeful
or
is con
Act,
sistent with the
under
burden
the Post Conviction
Relief
Pa.C.S.
9541-9546,
513-15,
§§
the ineffectiveness standard.
at
See id.
and/or