*1 Bell Bolno is suspended ORDERED that be and she Susan years, period the Bar of this for a two from 217, provisions with all comply and she shall Rule respondent pay It ORDERED that shall Pa.R.D.E. is further pursuant 208(g), Board Rule Disciplinary costs PaJt.D.E.
Supreme Pennsylvania. Court of
Argued May 2000. Nov.
Decided 2002. Reargument Denied March *9 Lancaster, William W. Boyd, Eaby, Thelia Jean for F. Harris. Stedman, Lancaster,
Craig W. for the Com. of PA. FLAHERTY, C.J., ZAPPALA, CAPPY, Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.
OPINION Justice CASTILLE.
This is appeal a direct from the sentence of death imposed appellant by on the Court of Common Pleas Lancaster 4, 1997, County.1 trial, On following jury October first-degree convicted of a penalty murder.2 After hear- ing, jury aggravating found one circumstance no and, therefore, mitigating circumstances returned a sentenc- 9711(h)(1). § Pa.C.S. 2502(a). 2. 18 Pa.C.S. § *10 motions filed and
ing verdict of death.3 Post-verdict formally imposed penalty. trial court the death denied and the claims, many six of which have appeal, On raises follow, subparts. For the reasons that we affirm the multiple judgment of sentence. specifically challenged not
Although appellant has evidence, sufficiency begin, as we do in all death of the we self-imposed obli penalty appeals, by performing direct our underlying first-degree gation to review the evidence 269, Spotz, v. 563 Pa. murder conviction. See Commonwealth (2000). 1280, 1283 reviewing sufficiency 759 A.2d evidence, evidence, and all must determine whether the we therefrom, inferences derived when viewed reasonable winner, light most favorable to the Commonwealth verdict jury’s finding of all of the elements of the offense supports the Id.; Rhodes, beyond a doubt. v. reasonable (1986). 537, 1217, 510 Pa. 510 A.2d 1218 for first- Evidence is sufficient to sustain conviction the Commonwealth establishes that the degree murder where kill; a human specific with a intent to defendant acted killed; responsible being unlawfully was the defendant killing was committed with killing; for the 2502(d); § 18 premeditation or deliberation. See Pa.C.S. Mitchell, 624, 546, v. 528 Pa. 599 A.2d Spotz; Commonwealth (1991). specific may proven by A to kill be circum intent evidence; from may stantial and it be inferred the defendant’s deadly part body. a vital of victim’s weapon upon use of a Bond, 539 Pa. 652 A.2d Spotz; Commonwealth (1995). August at trial that:
The evidence adduced showed On 1995, Daryl argument appel- in an Martin intervened between Snook, at appellant’s girlfriend, lant and former Maxine Lancaster, Pennsylvania. Appellant Bar in beat Mar- Pipeline aggravating jury victim 3. The circumstance found was that the felony by appellant prosecution to a committed and was was a witness testimony against appellant purpose preventing killed for the his involving any grand jury proceeding criminal such offense. See or 9711(d)(5). § Pa.C.S. and, severely result, tin charged aggravated as a with Appellant’s aggravated assault. trial for assault was sched-' time, uled for November 1996. Prior to that appellant ob- police reports tained the addresses from several him, against witnesses including Martin. instructed then-girlfriend, Kistler, his Kimberly to confirm that Martin lived at the that appellant address had obtained. Kistler did so. 2-3, 1996,
On the weekend November appellant, who Rutherford, lived East Jersey, New visited Kistler her Elizabethtown, home in Pennsylvania. At appellant’s request, Kistler called Martin on November 3rd and lured him into *11 proved what to be a fatal encounter. Kistler identified herself to Martin Ohio, as a woman “Patty” named from and claimed that she had prior met Martin on a occasion when he was drunk. arranged She to meet Martin for drinks at the Tobias Frogg S. restaurant in Lancaster between 7:30 and 8:00 that evening.
Appellant and Kistler arrived at Frogg the Tobias S. well designated and, before the hour surveying area, after waited their car for Martin. After Martin arrived and restaurant, entered appellant slashed the left front tire of car, Martin’s and lay then he and Kistler in wait for Martin in a nearby parking lot. At approximately 8:45 p.m., Martin left restaurant, entered his car and attempted away. to drive Upon discovering that tire, his had a pulled vehicle flat Martin into parking lot of an abandoned Dunkin’ Donuts. He then walked back to the restaurant and called his brother for assistance from pay phone. the restaurant’s When Martin lot, however, returned to the Dunkin’ Donuts appellant am- knife, bushed him with a slashing Martin’s throat with such as to force leave a wound eight over in length inches and three deep, killing inches him.
Kistler was key the Commonwealth’s witness at trial. She that, testified after Martin had entered the Dunkin’ Donuts lot, appellant lot, drove his track vehicle, behind the exited and instructed to neighborhood Kistler drive around for a few minutes returning pick before him up. After circling minutes, Kistler re- neighborhood approximately for five car. running towards the appellant lot and saw
turned vehicle, shaking, growling he was appellant entered the When wearing plaid breathing heavily. longer He was no and vehicle wearing had when he exited the jacket he been that, driving on they Kistler further testified earlier. his black bypass, appellant threw Route 741 near the Route out of the car window. Fila sneakers at appellant arrived back her Kistler stated that she and began to construct an p.m., whereupon appellant house 9:15 brother, Russell, Kistler to call his Appellant alibi. instructed Russo Russell to call one John phone on Russell’s cell tell phone to call Kistler back. appellant’s parents’ use then police that had left also told Kistler to tell the he p.m. and 6:30 and had arrived Elizabethtown between 6:00 p.m. 9:30 Kistler Jersey between 9:00 and home New that, appellant left to return New further testified after phone on Jersey, called Russell Harris his cell she indeed Then, Rus- him call Russo. Kistler called instructed John parents’ phone home number and appellants’ back at sell back, him to call her which he did. instructed bloodstained, trial, size pair At Kistler identified by police along found Route 741 near black Fila sneakers later bypass as the shoes that had been the Route 30 night of murder. also identified wearing on the She *12 jacket appellant as the plaid jacket found near the crime scene night jacket on of the murder. The wearing had been consistent with the blood proved stained with blood that be type and DNA of Martin. Bar, Janowski, Pipeline
Paul the former owner Pipe- Sherry Henry, acquaintance appellant’s an from the Max- Bar, plaid jacket appellant’s. as line both identified the police bloodstained knife found near ine Snook identified the scene, object with an proved which to be consistent the crime Martin, being of wounds inflicted on inflicting type prior appellant carrying that had seen similar to a knife she Fila bloodstained further identified the the murder. Snook appellant had worn as similar to the sneakers sneakers preliminary hearing his in his Dodge, assault case. Mark long-time appellant’s, appellant’s friend also identified sneakers. Ator of County
Detective John the Lancaster Depart- Police ment questioned appellant testified he about the murder of Daryl Appellant Martin. gone told Ator that he had to visit 2-3, Kistler on 1996, Lancaster the weekend of November but that he had left on Sunday evening p.m. Lancaster at 6:00 Rutherford, claimed that he had arrived East Jersey, and, New p.m. at 9:30 subsequently, message left a on answering Then, John Russo’s machine. he called Kistler to tell her that he had safely. Appellant made it home told Ator that he went to look for Russo at the Mardi Gras bar in Lyndhurst, Jersey. New He claimed that he at arrived Mardi at p.m. Gras 10:00 and asked the owner if Russo was around.
Several witnesses appellant’s contradicted fabricated claim of alibi. John Russo testified that message there was no on his answering from appellant 3, 1996, machine on November but that he did a message receive from appellant’s brother Russell on that Nowinski, date. Martin the owner of the bar, Mardi Gras testified he did not appellant remember coming into the bar speaking with him on November that, Russell Harris 3, 1996, testified on November Kimberly Kistler him called on his phone cell at 9:15 or 9:30 p.m. and asked him to call John Russo. Harris testified he made call and left a message for telling Russo him to call later, Kistler. Two minutes Harris called Kistler back to tell her that Russo was not home. Harris further testified that he was living appellant with parents’ their on house November 3 and that he did not appellant see at all on that day. Harris, appellant’s mother, Lurline testified that on November she had been downstairs her until home p.m. 11:00 and also did not see day. at all that At approximately however, -11:30that evening, when Mrs. Harris bed, was in “Hi, she heard appellant say, ma” from outside her bedroom door. *13 Calhoun, that two pathologist,
Deborah a forensic testified plaid jacket found at of the hairs retrieved from the scene hair, murder with two other hairs appellant’s were consistent Kistler, a hair came from and fifth hair was with consistent hairs Daryl from Martin. Calhoun further testified that two night in driven on by appellant found the truck Finally, come from testi- murder could have Martin. Calhoun plaid on jacket found knife and the was fied blood blood. consistent with Martin’s also indi- produced telephone The Commonwealth records a cating phone phone card was used make pre-paid that a Bethel, phone Pennsylva- call to home from a pay Kistler’s nia at 38 miles p.m. 10:03 on November Bethel is from and a from Ruther- Elizabethtown two-hour drive East ford. card was to call John Russo from The same used appellant’s workplace, a call to home from make Kistler’s home, and to a call from home appellant’s make Kistler’s during appellant a was in Kistler period when Elizabethtown. had appellant bought pre-paid phone testified that two cards Thus, any effectively alibi night on the of the murder. eliminated. facts foregoing amply support first-degree Appellant Daryl
murder out to locate kill verdict. set Martin, him against was the victim and a material who witness a pending aggravated prosecution go assault about to trial; immobilizing car and in wait for laying after Martin’s him, throat; appellant’s elaborately slit Martin’s alia, inter arranged by, alibi was Kistler’s testi contradicted records, mony, testimony family telephone and the his own jurors appel justified finding friends. The killer, intent, specific lant was that he and that acted with premeditated. appellant’s now turn to murder was We claims of error. claims that court its first the lower abused discre- peremp-
tion in that the finding Commonwealth’s exercise of tory only to strike the African challenge prospective American Kentucky, violate Batson v. juror did not U.S.
505 (1986), 1712, 69 and its progeny. S.Ct. 90 L.Ed.2d that, noting German/Polyne- is of begins by although he ancestry, adopted by an he was and raised sian/Hawaiian family. question African that in juror American He claims the solely was struck of race and that Common- because her the her, for which proffered striking wealth’s race-neutral reasons credited, explicitly pretextual. the trial The court Com- a prove prima monwealth that failed to responds that, event, in any case Batson and trial court under the facie properly that for prosecutor’s found the articulated reasons crediting the did not in strike were race-neutral and err the prosecutor’s explanation. race-neutral restrict, progeny and its the Four through
Batson
clause,
equal protection
teenth
Amendment’s
the exercise
challenges
peremptory
based on race
trials
an
state
attempt
purposeful
racial
eliminate
discrimination
the
jury
process.
equal protection
arising
selection
claim
fact,
from peremptory challenges
explicitly recognized
is the
Court,
Supreme
challenges
“peremptory
U.S.
that
a
selection
that
jury
practice
permits
constitute
‘those to
” Batson,
discriminate who are of a mind
476
to discriminate.’
96,
at
three-part
U.S.
To a case of discrimination prima establish facie test, the initial Batson the defendant had to show under a racial cognizable group, was a he member challenge challenges a prosecutor peremptory or exercised race; and of the defendant’s remove from the venire members combined an infer that other circumstances to raise relevant juror(s) racial removed the for rea prosecutor ence Batson, 1712; Basemore, sons. 476 U.S. 106 S.Ct. Batson, however, A.2d at In a case after 728-29. decided Supreme required modified Batson’s for Court elements *15 case, that, racial holding identity while between prima facie might help to estab juror(s) the excluded the defendant violation, it a necessary requirement. lish a was not Batson Ohio, 400, 415-16, 1364, 499 111 113 Powers v. U.S. S.Ct. (1991).4 so, reasoned, L.Ed.2d This the Powers 411 is Court is a trial only because harm Batson seeks avoid not the of own race where members the defendant’s have been exclud race, harm to jury from on account of their but also the ed the community at prospective jurors large the results participation jury when citizens are denied service based Id.; Thomas, upon their race. see also Commonwealth v. 552 621, 468, (1998).5 Pa. 717 A.2d 475 test, prong involving of the Batson
The second forward with a prosecution’s obligation come race-neutral a explanation challenges prima of the once case is facie or proven, explanation persuasive, not demand an is “does Elem, 765, 767-68, plausible.” Purkett v. 514 U.S. 115 even (1995). Rather, 1769, L.Ed.2d 834 at that S.Ct. 131 the issue “ stage validity prosecutor’s explanation. facial of the ‘is the discriminatory prosecutor’s Unless intent is inherent claim, appellant’s 4. since himself is not Powers is essential Tilley, juror. v. of the same "race” as the excluded See Commonwealth 649, 312, (2001). 566 Pa. 780 A.2d 652 beyond 5. That those of a criminal defendant Batson involves concerns conclusively by fact been himself established that Batson has is peremptory extended exercised a criminal defendant strikes McCollum, 42, 2348, jury Georgia v. 120 selection. 505 U.S. Rico, 112 S.Ct. 526, 990, (1992); L.Ed.2d 551 Pa. 711 A.2d 33 Commonwealth (1998) (plurality). 992
507 ” explanation, will the reason offered be deemed race neutral.’ Id., Hernandez, 360, quoting 500 at 111 U.S. S.Ct. 1859. tendered,
If a
explanation
race-neutral
trial
is
i.e.,
proceed
test,
court must
prong
then
to the third
opponent
ultimate determination of
of
whether the
the strike
has carried his
of proving purposeful
burden
discrimination.
Purkett,
at
stage
U.S.
question will be explanation whether counsel’s race-neutral peremptory for a challenge should be believed. There will issue, seldom be much bearing evidence on that and the best evidence often will be the attorney demeanor who challenge. exercises the As with the state of mind of a juror, evaluation of prosecutor’s state mind based on demeanor and credibility “peculiarly lies within a trial judge’s province.”
Hernandez,
(citations omitted).
U.S.
S.Ct. 1859
Accordingly, the trial
finding
court’s
as to discriminatory
may
intent
only
be overturned
if it
erroneous. See
clearly
was
Hernandez,
363-70,
In the Commonwealth a used peremptory challenge to prospective juror exclude number 9 (hereinafter “E.C.”), by identified her initials proved who to be only the African-American in jury pool the for this trial. Appellant immediately raised a Batson objection, noting that Hernandez, Although 6. by the decision in plurality, six-justice was a majority agreed of the Court finding that a trial court's on the of issue discriminatory intent clearly must be affirmed unless it is erroneous. J., C.J., (Plurality Souter, ,TJ.; While, Opinion Kennedy, joined by Relinquish of and J., O’Connor, Scalia, Concurring J.). Opinion joined by Dinwiddie, See also Commonwealth v. 529 Pa. 601 A.2d (1992) (Zappala, n. 1 concurring). J. family adoptive also appellant’s black and that juror was the prosecutor “to trial court then directed the was black. The justification and for the exer- on the record the reason place that noting appellant After first challenge.” cise (1) view, that, black,7 in his prosecutor stated not himself the (2) questions; difficulty following had some the juror the question- responsive to defense counsel’s juror was more the (3) expressed had prosecutor’s; juror the ing than to the in an imposing penalty appropriate death concerns about the and, by question- further although was rehabilitated case she cause, challenge a for might that survive ing point to the she she would be able overcome prosecutor did not believe the penalty capital juror; and be a fair with the death her concerns (4) objected question posed to a fact that defense counsel the court ruled on juror, in front of the and the prosecutor hurt appellant juror, in front of the objection favorably that (5) juror’s with credibility juror; prosecutor’s eyes prosecu- when the body language, including averting her ability to a sentence of her about her return questioned tor juror death, concern that prosecutor’s corroborated the Upon hearing able to return a verdict death. would not be court the Batson motion explanation, the trial denied this N.T. 1434-37. juror. excused present argument respect to the Commonwealth’s With case, we note prima failed to establish appellant facie comment, argument calling upon it a racial 7. seizes discriminatory Appel- prosecutor’s intent. Brief for corroborates lant, however, ignores argument, the context in which Appellant’s objection, raising appellant made. his Batson the remark was racially-based pi'osecutor’s action had to be deemed claimed that the yet [appel- juror only juror interviewed and was the black because family prosecutor’s accurate notation N.T. 1435. The is black. lant’s] immediately upon this appellant not black followed himself was Although identity argument. racial between the defendant defense according necessary challenged juror to a Batson claim is not Powers, identity may racial be or non-existence such existence it, invoking obviously appellant himself believed relevant to adoptive family in instance. The fact that of his the first race justify juror than cannot prospective was of a different race own, *17 course, it no relevant to the but was less the strike on its the strike than was the race question of the intention behind family. appellant’s adoptive Supreme plurality opinion the U.S. Court’s in Hernandez v. “[ojnce that, suggested New York prosecutor a has a offered explanation peremptory challenges race-neutral for the the trial court has ruled on question the ultimate of intentional discrimination, preliminary issue of whether the defendant had a prima showing made moot.” 500 becomes U.S. at facie 359, 111 1859. parties S.Ct. Neither of the discusses this Hernandez; aspect instead, actively dispute both sides a prima proven. Although whether case was a finding of facie regarding mootness first prong of Batson where the prosecution provides the reasons for yet its strikes is not required by Supreme Court, plurali- U.S. the Hernandez ty’s expression naturally gives pause us in determining the appropriate manner of approaching Batson present- issue ed here. Since this Court is satisfied that the trial court did not err in its ultimate Batson determination, will we assume without deciding that a prima case of purposeful discrim- facie here, ination was turn, indeed made out as trial court did, question to the appellant whether carried his ultimate proving burden of that the juror Commonwealth struck E.C. on account of her race.
Appellant does not seriously contest the facial neu
trality of the reasons for
proffered by
the strike
prosecu
tor,
claiming
instead
merely
those reasons
pretextua
l.8 In
opinion,
its
the trial court
prosecutor’s
noted that the
principal
for
peremptory
basis
juror’s
strike was the
equivocation on the
penalty.
death
It is well-established that
equivocation respecting imposition of
penalty
the death
consti
legitimate
tutes a
race-neutral reason for
striking
juror in a
capital
Bronshtein,
case. See Commonwealth
460,
547 Pa.
907,
(1997),
denied,
A.2d
936,
cert.
522 U.S.
118 S.Ct.
(1997);
race-neutral,” noting that: “The Court heard the and of explanations and the Commonwealth juror E.C. good had a faith basis that believes the Commonwealth imposing the may have trouble juror [had] that E.C. believe trial court also op. Trial at 11. The penalty.” Court death striking for additional reasons prosecutor’s credited the (“the finds all of Id. Court juror non-pretextual. as valid and credible reasons to constitute proffered the Commonwealth’s chal- peremptory for the exercise [the] additional reasons lenge.”). credibility trial court’s deter- with the
Appellant takes issue mination, reasons for the strike arguing prosecutor’s that the identically allegedly jurors, because other pretextual race, were deemed juror except for their situated to E.C. identify not But does acceptable by prosecutor. similarly who was acceptable to the Commonwealth any juror by factors articulated juror as to all of the situated to E.C. Instead, to his decision to strike. prosecutor as relevant Thus, individually. factors on the identified appellant focuses by prosecutor were advanced he claims that the reasons allegedly jurors in addition to E.C. pretextual because: five difficulty understanding questions certain appeared to have 23); 30, 52, 60, 29, four (jurors and by prosecutor posed equivocate penalty on the death jurors appeared other 80, 29); juror court 35, 108, one other heard the (jurors ques- misleading after a allegedly prosecutor “admonish” the jurors 60); body language of two other (juror tion and the 29). juror (jurors 108 and to that of EC allegedly was similar concerning the fifth factor argument no (Appellant makes i.e., juror appeared E.C. by prosecutor, identified prosecutor.) than to the responsive to defense counsel be more jurors with select characteristics Appellant’s comparison here, upon strike which was based does not establish Porter, reasons, pretextual. See State a combination of (1990) 144, (rejecting 152-53 defen- 391 S.E.2d N.C. “finding single among factor the several approach dant’s challenged prospec- by prosecutor as to each articulated juror matching passed it to a who exhibited juror tive factor;” same approach “fails to address the factors as a totality which when together provide considered an image of a juror State”). considered in the case undesirable any event, viewing even the factors individually, the trial court’s finding that the racially strike here was not motivated clearly was not erroneous. For example, respect with equivocation E.C.’s on ability her to return a sentence of death, it is clear that identically E.C. was not situated to 35, 108, jurors as appellant argues. Before the *19 individual juror E.C., voir dire of the trial court addressed general questions to panel. her responded affirmatively E.C. to question whether, the court’s if a proper imposition case for penalty out, death juror were made would still “have moral, any religious, or ethical beliefs which prevent would you from considering imposition of penalty.” the death N.T. 1254-55. As the trial court noted in its opinion, of none jurors eventually seated in this case-which included the jurors four displaying cites as the “same doubts and concerns” juror regard-indicated E.C. they had such a belief that would them from imposing the prevent penalty. addition, death In during the individual voir dire of jurors, those expressed moral, none of them religious or ethical belief which prevent would them from returning a verdict of death. Trial op. Court at 9 n. 3. if Even it is assumed that jurors by other cited appellant equivocated during individual questioning with respect to the penal- death ty, claims,9 as appellant they did against not do so a back- ground of affirmatively indicating they moral, had a religious or ethical preclude belief that would them from returning a verdict death. Although the trial court noted importance of this material distinction in opinion, its appellant does not address it. fact, point
9. jurors appellant some of the cites did not at all equivocate in the example, juror fashion of E.C. For 35 stated without qualification impose that he could penalty the death appropriate in an though case even personally he believed it to be ineffective. N.T. 200. Similarly, juror moral, ethical, 108 stated that religious, she had no or personal objections and, other penalty to the death when asked whether case, said, she could return a appropriate verdict of death in an simply, Yes. N.T. Moreover, although questioning juror E.C. individual challenge may have her from a been sufficient rehabilitate respecting penalty, cause her upon for based beliefs the death express individual voir dire she continued reservations Thus, penalty. judge explained about the after the trial death Pennsylvania involving operation penalty, law the death “impose penalty,” and asked if she could the death E.C. E.C. that, “Yeah, they if it responded, really—if proved it like record, yes.” of this trial possibly, light N.T. 1419-21. In prosecutor’s repre- in crediting court not err plainly did concluding strike of was not sentation and E.C. racially motivated. claims that the trial court erred
Appellant next admitting photocopies of two that he into evidence letters from sent to prison. mailed Ms. Kistler letters were Kistler at address she had resided with her mother. where delivered, however, By the letters Kistler was time the to her incarcerated. Kistler’s mother turned the letters over son, Mathias, Robin who opened photocopied them contents and then returned them to his to forward mother copies of subsequently Kistler. Robin Mathias delivered his *20 Attorney’s District who Appellant, the letters to the Office. copies pre-trial, not of the suppress did the letters move his alleges now the admission of the violated copies privacy rights under the Fourth Amendment of the United I, Pennsylvania § and 8 of States Constitution Article the This claim is Constitution.10 meritless. of
Strictly speaking, copies admission of the the the not Fourth implicating letters trial was an event the I, 8,§ provisions Article those concern Amendment or since Thus, appellant’s governmental “searches” and “seizures.” objection only can concern the manner in which constitutional Although appellant Article invokes both the Fourth Amendment and I, 8, argue rights § he not has broader or different under does he Pennsylvania the the Constitution than under federal Constitution here, particular Accordingly, purposes instance. for of the decision analysis two we will that the involved is identical under the assume provisions.
513
acquired
copies
the
of
In this
Commonwealth
the letters.
regard,
controlling
it
non-government
fact is that was a
brother,
agent,
intercepted
copied
Kistler’s
who
the let-
ters
copies
and then turned the
over to the Commonwealth.
proscriptions
of the Fourth
Amendment
I,
8,§
not apply
Article
do
searches
seizures conducted
by private individuals.
v. New
Coolidge
Hampshire, 403 U.S.
443,
2022,
(1971);
91
29
S.Ct.
L.Ed.2d 564
Burdeau v. McDo
well,
465,
574,
(1921);
256
41
U.S.
S.Ct.
At
reasoning
the core
refusal
underlying this
application
exclusionary
extend
private
rule to
concept
action”,
searches
understanding
is the
of “state
operates only
the Fourth Amendment
the context
relationship
Al-
between the citizen and
state.
though this Court has
ruled
never
the same result
I,
necessarily
under
obtains
Article
Section 8 of the Penn-
Constitution,
sylvania
held,
Superior
Court has so
Com-
380,
Dingfelt,
Pa.Super.
monwealth v.
514 Hawkins, 352, 549 Pa. 701 A.2d
Mathias. Commonwealth (“Individual (1997) acts with do not become imbued 505 they governmental merely action because are the character of by in furtherance upon government later and used relied (“The objectives”); A.2d at 832 governmental Corley, 491 an of the by police prosecutors mere and results use 'ratify’ not actions actions does serve to those individual’s state”). conduct of the copies that the of the argues nevertheless because, if the be inadmissible even
letters should deemed letters, it did prosecution lawfully possession was “in Brief give authority not to search their contents.” them 36., appel in Appellant, preliminary for fundamental flaw The course, not prosecution lant’s did read argument, Instead, Mathias or actual themselves. search the letters letters, copies of which had of his own provided he made no search of the let accord. The Commonwealth conducted ters themselves. States, 65
Walter v. United U.S. S.Ct. (1980) (plurality opinion), the case cites L.Ed.2d unlawfully support of his claim letters, his privately-seized support does not “searched” the Walter, party of a whom employees private claim. an mistakenly shipment packages of twelve sealed interstate of 8- opened packages discovered boxes delivered suggestive film. On the outside of the boxes were millimeter drawings explicit descriptions of the contents. One em- ployee attempted, one or two of the without opened boxes success, by holding up light. the film it to view FBI who packages agents, screened them were delivered warrant, obtaining with a first a and deter- projector without obscenity they pornographic, mined which led federal charges. ultimately Supreme it is clear that the U.S. Court
Although disapproved screening of the FBI of the films discovered Walter, private majority opinion the absence of party significance uncertain. The Court’s made its constitutional Jacobsen, however, clear the later 6-3 decision makes
515
proposition
governs
Fourth Amendment
cases such as
this. The Court in Jacobsen stated that the
standard
emerged from
invasions of ...
Walter is that “the additional
privacy by
government agent
the
a
[following private search]
by
degree
they
must be
the
tested
which
exceeded the
scope
private
the
search.”
Applying Supreme the test derived from Court approved drug agent’s against Jacobsen actions a here, Fourth challenge. inquiry Amendment Relevant to our plastic bags the Court held “the removal of the from the agent’s inspection tube and the visual of their contents enabled agent nothing previously to learn that had not been during private Accordingly, learned search.” the Court held, inspection “infringed the removal and no legitimate expectation of and privacy was not a within ‘search’ meaning of the Fourth Amendment.” 466 U.S. at (footnote omitted).12 S.Ct. reading copies Commonwealth’s mere of the of the by
letters delivered to
them Mathias
this case was not an
unlawful warrantless search under Walter and Jacobsen.
In-
11. The
plurality
Jacobsen Court stated that the two-Justice
and four-
justice
agreed
analysis
dissent in Walter
appropriate
on the
of a
one, i.e.,
governmental search
private
which follows on the heels of a
legality
governmental
scope
that the
of the
search must be tested
search,
private
disagreed only
respect
of the antecedent
with
to the
proper
scope
private
characterization of the
of the
search.
The first fatal flaw is noted, record, the trial court there is no evidence none, appellant proffered to show that was acting Kistler as an agent of the Commonwealth as opposed acting on her own fact, volition when she wrote her appellant. letters flatly any Kistler denied she wrote of the letters “at the request of any police any representative officer or of the Attorney’s District N.T. 3209. The fact that [0]ffice.” mere gave Kistler and ultimately statement the Commonwealth cooperated prosecution appellant’s with the at trial does not establish that acting agent she was as an of the Common argument that, wealth. The second fatal flaw in even if arguendo Court were to assume acting Kistler was agent earlier as an when she wrote to appellant, Giglio would not command that the letters response wrote in suppressed must be or excluded from Instead, Giglio most, evidence. and Brady require, would *24 by disclosure agency, the Commonwealth of the fact of so as to permit impeachment of the witness. appellant’s Since claim the letters themselves wrongly admitted under Giglio supported is by no relevant authority, sup nor is it ported by holding reasoning the or of Giglio, the claim fails.
In another claim relating to the letters he wrote to Kistler, appellant Ms. asserts that trial by the court erred denying objection his to the admission of the letter he wrote April on on ground that its admission violated the attorney-client privilege. Appellant argues that his April 5 responsive letter was to a letter from Kistler soliciting advice lawyer because her had recently resigned. As a result of letter, claims, Kistler’s appellant he legal solicited advice from counsel, his own relayed the substance of which in he his letter April 5. Appellant argues that his letter to Kistler is by attorney/client shielded privilege it because contained strategy “trial and confidential communications between a counsel, basically client his agent at the behest of an no cites Appellant, Brief for prosecution.” attorney-client privilege argument. in of his authority support in 5916 of forth Section attorney-client privilege set The coun- Code, proceeding “In a criminal as follows: the Judicial testify to confiden- competent permitted or shall not be sel client, by him his nor shall made to tial communications same, in case unless either compelled to disclose client be by trial the client.” upon the privilege is waived to Ms. appellant’s introduction of letter § 5916. The Pa.C.S. not a The letter is privilege. implicate Kistler does not it is attorney, but appellant and his between communication non-lawyers. Further- two a communication between instead counsel at trial did not involve more, of the letter introduction being appellant did it involve nor testifying against appellant, lawyer and his communications between compelled to disclose relayed addition, assuming appellant even himself. letter, in that advice by attorney him his provided advice it to commit appellant nature once elected lost its confidential party. a third and share it with in his own words paper convoluted subordinate lengthy In a and somewhat particularly was also claims that he argument, put it the letters because admission of all of harmed right had to waive his he would have position him in a where explain testify order against self-incrimination right against his self-incrimination The burden on letters. claims, prose because the weighty, appellant particularly fail to jury. letters to the We meaning of the argued cutor evidence, proper prosecu admission of proper see how the evidence, unconstitutional that admitted upon torial comment admission right against self-incrimination. ly burdens position may put a defendant any damning evidence If testify response. or not to whether having decide *25 sound, admission preclude it would theory were appellant’s guilt.13 any evidence of argument prosecutor’s comment on that the Appellant's related testify at trial is on his failure to appellant's letters was a remark appellant’s Nothing prosecutor’s remarks adverted to in the meritless. meaning upon prosecutor's comment testify, failure to
519 argument, alleges appellant In another convoluted allowing erred in to that the trial court Commonwealth go unexplained.” evidence to uncorrected or deceptive “allow that, trial, at Ms. Kistler’s the Commonwealth Appellant notes sister, witness, Kathy as a and that called Kistler’s Gehr helped to testimony guilt. Pointing establish Kistler’s Gehr’s trial, testimony subsequent alleges Gehr’s at the appellant to “discrepancies” there between account at Gehr’s trial appellant’s Kistler’s trial and Kistler’s account with respect to victim prior Kistler’s efforts to locate the two weeks meeting arranged to ultimately she which led Appellant argues subsequent testimony murder. that Gehr’s would in at Kistler’s trial have useful to him his cross- been Appellant argues examination of Kistler at his trial. also positions the Commonwealth took inconsistent toas Kistler’s in appellant, role According the crime: the Commonwealth trial, minimized during Kistler’s role the crime his but emphasized trial, her role her own in part upon based perceived evidence from discrepancies Gehr. These in the position respecting appellant Commonwealth’s Kistler lead allege presentation that the Commonwealth’s of evidence at “deceptive.” his trial was Appellant then accuses the Com failing monwealth of to take steps after the fact to correct the deception. also alleges that failed to Gehr’s “exculpatory” disclose favorable evidence to reasons, him. For these claims that the Common States, Giglio 150, wealth v. violated United 405 92 U.S. S.Ct. 768, (1972) (state may 31 present L.Ed.2d 104 not known false uncorrected), or go evidence allow false Napue evidence to v. Illinois, 1173, (1959) 79 U.S. S.Ct. L.Ed.2d (similar), Brady Maryland, 373 U.S. 83 S.Ct. (state (1963) 10 L.Ed.2d obligated to disclose evidence defense). favorable claim, rejected appellant’s
The trial court noting (1) it that, Savage’s testimony credited Detective at the time of appellant’s trial, did police specific not know the whereabouts appellant's words as related the letters evidence admitted into is not equivalent testify. of a comment on his failure to *26 (2) police was family;
of the Gehr
because Gehr’s
statement
trial,
had its
appellant
turned
to the defense before
over
and,
to him
contents available
to cross-examine Ms. Kistler
(3)
thus,
no violation
testimo
Giglio;
there was
Gehr’s
trial,
exculpatory
ny, as
at Kistler’s
did not constitute
revealed
prejudice appellant
absence did not
under
evidence and its
419, 115
Kyles Whitley,
test set forth in
514 U.S.
S.Ct.
(1995). Finally,
following
court
[Tjhere Kathy fact nothing sinister in the that Gehr in the fact that the Com- testified at Ms. Kistler’s trial or testify monwealth located her and had her at Ms. Kistler’s Moreover, of Ms. in portrayals trial. Kistler the Com- in trial in closing [appellant’s] monwealth’s the Com- in trial not necessari- opening monwealth’s Ms. Kistler’s are ly The Court finds that the inconsistent. Commonwealth “deliberately jury. did not the Court and the deceive” Trial at 23. op. Court perceive ruling. trial The
We no error court’s obviously duty ability had neither the nor the Commonwealth subsequent testimony. Nor was the to disclose Ms. Gehr’s a Ms. duty impeach under to call Gehr to Commonwealth Kistler, witness, Furthermore, at trial. appellant’s its own police appellant disclosed statement Commonwealth Gehr’s fact, and, point appellant’s employed that state- counsel credibility. equally Kistler’s Ms. impeach ment Gehr prosecution; appellant available as to if to the defense him, testimony helpful be it was thought might that'Gehr’s him, Commonwealth, and not to contact upon incumbent her call her as witness. positions notion that the took
The Commonwealth so as to a conclu divergent the two trials that were warrant or appellant’s presented trial false prosecutor sion found, is, deceptive as the trial court meritless. evidence appellant’s never claimed at trial Kistler Commonwealth contrary, during in this To the was uninvolved murder. summation, for Kistler jury the Commonwealth noted you helped Daryl appellant’s “told she kill” Martin. At how trial, person argued was the Commonwealth trial, actually who committed At the murder. Kistler’s did not had argue physically that she killed Martin; instead, argued, guilty it that Kistler was murder *27 in degree appel- the Martin up third because she set so that entirely lant him. with could kill This is consistent the position appellant’s that the took at trial. Commonwealth Moreover, argued to the extent that that the believable, Kistler’s of that implication appellant but her own attempt killing to minimize in at own trial her role the her rejected, should be not amount to Common- does the presenting wealth false discrepancies, evidence. These to the all, they extent be as may discrepancies at characterized i.e., a function Kistler’s in of different status the trials: two trial, an a accuser of cohort in and principal one as the defendant in the next. The that now identi- matters credibility fies as at affecting Kistler’s his trial were issues he properly argue could elicit at trial But jury. to the these remotely circumstances do not prove deceptive misconduct or conduct on of part the the Commonwealth.
Appellant’s remaining penalty claims concern the phase First, of trial. appellant argues that court the trial admitting erred in impact testimony. alleges victim He that 1995-22(SS1), Act § No. which amended 9711 to Pa.C.S. permit impact victim testimony, is unconstitutional under both the Pennsylvania Federal and the Constitutions. The chal lenged legislation provides that, hearing at the sentencing a trial, jury concerning impact “evidence the victim and the the death of the victim has family had on the of victim is the 9711(a)(2). § admissible.” 42 Pa.C.S. also statute re quires the court instruct in a jury capital trial on the role victim impact a plays capital evidence deliberations on penalty:
The court instruct jury shall if it least finds at one aggravating circumstance and at least mitigating one cir- cumstance, consider, shall weighing it aggravating circumstances, and mitigating any presented evidence about impact about murder on the the victim and jury The court shall also instruct on family. victim’s any may just proper other matter be under circumstances. 9711(c)(2).
§Id.
statute,
conformity
present-
with the
the Commonwealth
from
Mar-
very
testimony
penalty phase
ed
brief
Mr.
mother,
describing
impact
tin’s
father
brother
object
appellant did not
to this
upon
Although
murder
them.
admission,
testimony prior to trial or at the time of its
he
pre-trial
challenging
motion
subsequently moved
amend his
validity
penalty
challenge
statute to include
the death
capital
invoking
to Act
this Court’s
case relaxed waiver
granted
trial
motion to amend.
rule. The
court
Initially,
recently
upheld
we note
this Court has
multiple
Act 22
face
constitutionality
challenges
in the
Pennsylvania
brought under both the
and federal Constitu
*28
Means,
309,
v.
565 Pa.
Appellant’s claim fails for the additional reason that, in light of charge jury jury’s the court’s to the and the own findings respecting proffered aggravating and miti circumstances, gating there is no appel reason believe that lant prejudiced by was the victim impact evidence. Consis tently 9711(c)(2), § jury with on here instructed three separate they occasions that consider the victim impact only evidence if it found at aggravating least one mitigating one engaged circumstance and was then in the process weighing countervailing those circumstances. The jury ultimately found the of one aggravating existence circum stance, any but did not find proffered mitigating charge court, circumstances. Under the issued since jury did not find factual predicate that would have triggered a evidence, victim impact consideration it must be deemed not to have it. considered It is a settled principle, course, jury presumed that the is to have followed the trial court’s instructions on the law. E.g. Commonwealth Richter, (1998).15 551 Pa. 711 A.2d According ly, appellant’s impact victim evidence claim is meritless.
Subsumed within appellant’s claim Act 22 unconstitutional is a distinct very argument different *29 the trial court grounds erred on sustaining of irrelevance objection Commonwealth’s attempt to his to introduce testimony from family his appellant’s members about how Appellant jury asserts that any [t]he fact that did not find mitigating hearing impact testimony circumstances after the victim is a possible impact indicator that the jury's victim evidence colored the mitigating consideration of factors. Brief of at 85. But this nothing speculation. speculation is more than Such is no basis for concluding jury disregarded that the its instructions. 83-84. Appellant, Brief for impact an on them.
crime had
“pre-
a
would have been
that such evidence
Appellant argues
trial
argues
also
mercy appeal.”
to a
He
cursor
contrary
right under
ruling
to his
exclusionary
was
court’s
Carolina,
S.Ct.
U.S.
Skipper
South
(1986)
any relevant
jury
to have the
consider
L.Ed.2d 1
argues that
mitigation evidence.
thus,
and,
excluded.
properly
was irrelevant
evidence
In that
upon
misplaced.
Skipper
reliance
Appellant’s
for the
case,
that it was error
Supreme Court held
the U.S.
testimony that the
had made
defendant
preclude
trial court to
his arrest
prison life in the time between
good adjustment
a
cases,
that,
capital
“in
explained
and trial. The Court
considering as a
precluded from
[may] not be
sentencer
character or
factor, any aspect of
defendant’s
mitigating
any of the circumstances
the offense
record and
than death.”
a basis for a sentence less
proffers as
defendant
omitted).
(citations
In
at
Appellant’s “execution Pennsylvania’s was not under testimony also relevant pact” not fall type of evidence does sentencing statute. This capital circumstances any specific mitigating seven within 9711(e). Nor does it fall within the § in 42 outlined Pa.C.S. 9711(e)(8), § circumstance outlined mitigating “catchall” mitigation con encompasses, “[a]ny other evidence which and the character and record of the defendant cerning circum mitigating catchall of the offense.” The circumstances obviously requirements Skipper. mirrors the stance impact is irrelevant party that defense third evidence holding
525
scheme,
Pennsylvania’s capital
under
sentencing
join
we
a
of
number
states which have considered this issue and have
party
likewise concluded that third
impact evidence is irrele
vant to the defendant’s character or record or the circum
See,
Sanders,
stances of
e.g.,
the crime.
11
People
Cal.4th
475,
751,
Cal.Rptr.2d
420,
46
(1996),
905 P.2d
458-59
cert.
denied,
838,
115,
519
(1996);
U.S.
117 S.Ct.
refusing jury to direct the mitigating find as a circumstance that he was under the influence of extreme mental or emotion al disturbance the time of 42 the offense. See Pa.C.S. 9711(e)(2). § During penalty phase, appellant called Dr. Berger, Vincent a psychologist, forensic who testified that appellant may have been under the of an influence extreme mental or emotional disturbance at the time the murder. that, Appellant asserts Berger’s because Dr. opinion testimony was not rebutted affirmative Commonwealth evidence on subject, this he entitled to a directed verdict on the of this mitigating existence circumstance. The Common wealth responds question presence particu of a lar mitigating circumstance falls within province of the jury, which is free to either accept reject evidence, or includ ing opinion expert evidence from witnesses. matter,
As general a once an expert qualified testify, weight given be his testimony is a for matter juiy. 135, Commonwealth v. Henry, 929, 524 Pa. 569 A.2d 934 question 16. A could be raised type whether of evidence is in actuality aggravating opposed mitigating evidence as evidence. A penalty imposed upon death may an dramatically individual indeed person's family, affect consequence but it is still another voluntary individual's opposed act of murder being to the act of strange murdered. It would be a proposition to allow such “execution impact” evidence mitigation to be introduced as for the act of murder. denied,
(1990) (citations omitted), 499 U.S. S.Ct. cert. (1991). v. Breaki In Commonwealth 113 L.Ed.2d (1990), that the ron, this Court held A.2d 1035 524 Pa. mitigating circum proffered question the existence *31 no jury found In that in which the jury. case stance is for the that circumstances, appeal claimed on appellant mitigating that circumstances mitigating found as jury should have disturbance, his or emotional mental was under extreme he This mitigation.” and “other evidence (twenty-five), age claim, axiomatic that noting that: “It is rejected the Court on the nature properly instructed jury has been once a in the circumstances as defined mitigating aggravating statutory balancing for one statute, scheme as on the well usurp the other, reviewing courts to it is not for against the judgment for that their jury function and to substitute directing judice, because In the case sub Id. at 1043. jury.” circumstance mitigating of this on the existence verdict function, did not the trial court jury’s usurped would have fact, testify to a Furthermore, did not Berger, Dr. err.17 commit certainty appellant that of medical degree reasonable of an the influence extreme while under ted the murder Rather, merely doctor disturbance. or mental emotional of an influence may have acted under the appellant that stated equivo this disturbance. Given or emotional extreme mental inappropriate for the cation, particularly it would have been appellant that that it must conclude jury to instruct the court or emo of an extreme mental the influence had acted under Martin. murdered disturbance when he tional trial court erred Next, argues appellant negate a miti attempt “to to permitting the Commonwealth crime)” (remorse its cross- during for the circumstance gating pursue not appellant did Berger, Dr. where examination of By allowing the Commonwealth circumstance. mitigating remorse, implication an he not feel appellant did imply to mitigating circum- where the not a circumstance We note that this is circum- jury by stipulation. In such a presented was to stance stance, mitigating factor." required by to find that jury law "the is (2001). Rizzuto, Pa. A.2d argues, the trial only negate by testifying, appellant could testify. Appel- right court his not to Brief for also burdened lant, responds that its examination of 94. The Commonwealth not respect appellant’s Dr. with lack remorse was Berger negate unpursued mitigating circumstance. designed to an notes, Instead, its brief cross-examination the Commonwealth Berger designed impeach on his point Dr. from credibility appellant and his conclusion that suffered problems and a dis- severe emotional detachment/attachment merely had by showing appellant order an antisocial personality disorder. further notes that The Commonwealth agreed Berger prosecutor Dr. with the that a lack of remorse diagnosis with a of antisocial personality consistent disorder and, thus, concerning it was him appropriate question whether in fact exhibited that conduct in order diagnosis. test the doctor’s overall *32 that, cross-examination, on
The record reveals prosecu- the tor Berger Dr. appellant capable asked whether was of re- Berger prose- morse. Dr. in the answered affirmative. The cutor then asked a lack of of whether remorse is the one factors personal that are with an consistent antisocial disorder diagnosis, is, Dr. Berger and that testified that it but he stated did not that appellant believe had the disorder. Subsequently, prosecutor to attempted impeach Berger Dr. with the (DSM Diagnostic IV), and Statistics Manual which lists the of by characteristics mental different disorders and is used professionals in the field. The court allowed cross-examina- subject tion provided on this that not prosecutor go did through of all the characteristics mental different cross-examination, disorders. Later Dr. Berger reas- that, serted in his opinion, appellant capable was of remorse. prosecutor The Berger asked Dr. he that agree whether would there was no expressed remorse for the victim in the letters (which that appellant had to Ms. written Kistler evidence). Dr. Berger that stated he could not remember reading expressions any of remorse in the letters but added that, appellant killing victim, since did not admit to “there anything couldn’t expressed be he remorse for it.” Dr. where Berger appellant capable also stated that he believed was of to him Dr. expressed but had not remorse because remorse Berger him it. At point, had never asked about that Dr. prosecutor inquired Berger agreed whether that some to contain appellant the letters written seemed evidence requests Ms. scheming and for Kistler recant her state- objected grounds ment.18 Defense counsel on the that prosecutor’s interpretation. The question upon was based objection requested counsel a mis- was sustained defense prosecutor’s improper trial based on grounds on the that something that in this question “injecting is not case.” was request mistrial denied.
It that court over is settled the trial “has broad discretion cross-examination, rulings this area will scope of its discretion.” Com- not an abuse be reversed absent Rizzuto, 1081(2001). monwealth v. Pa. A.2d claim of with to the rejecting appellant’s respect error Berger, of Dr. the trial Commonwealth’s cross-examination court that the not to purpose noted this examination was remorse, prove impeach lacked but opinion: expert doctor’s
It clear to this Court after of the record that the is review prosecutor diagnosis, on one antisocial focused disorder, personality attempt and was using the DSM-IV [appellant] did in fact charac- show exhibit numerous in an im- consistent with disorder effort to teristics peach Berger’s credibility Dr. his ultimate conclusion. DSM-IV, “lack of remorse” of seven Under one characteristics, at three of which are to con- least needed *33 personality that an individual suffers from antisocial clude prosecutor’s questions to Dr. con- Berger disorder. The an cerning an effort to offer alternative remorse were and to that diagnosis [appellant] show did indeed exhibit many personali- of the seven characteristics of an antisocial designed questioning 18. that to *34 530 an Commonwealth v.
specifically requests such instruction.” (2000). 269, 1280, Pa. A.2d 1291 See also Spotz, 563 759 1221, Smith, Pa. A.2d 1232 544 675 (1996).19 that em- prosecutor concedes the never arguing for a dangerousness” words “future ployed the sentence, prosecutor implied but that the death asserts the that own suggesting jurors to “their point by allegedly the from safety [ajppellant was at risk if was ever released Appellant, Brief for 106. prison.” by responds noting first that The Commonwealth requested premised a Simmons instruction appellant never implied upon prosecutor’s notion that the summation is The dangerousness. The Commonwealth correct. future Simmons-type a appellant requested that record reveals phase closing arguments and charge only penalty before the right. properly a trial denied as matter of court an request there no entitlement to such instruction since right. Appellant argu a did not make the distinct matter raises—i.e., that ment that now he then became entitled he charge upon prosecutor’s allegedly a premised Simmons actually argue dangerousness. Accord proceeding future A.2d at n. ingly, Spotz, claim fails. 1291 & the Simmons because, context, fails when viewed The claim also prosecutor imply dangerous it is that the did not future clear ness, should be much less verdict death returned a danger. example, prosecutor’s argument For prevent that justice system, attack on criminal that this murder was an part, imply now a did not jurors of which the themselves Instead, danger jurors. appellant a addressing presence purpose prosecutor was circumstance, ultimately specifically charged aggravating consistently minority expressed Court 19. A of Justices on this has See, they require every view would a Simmons instruction case. Robinson, (1998) e.g., 554 Pa. A.2d 344 Commonwealth v. J., C.J., concurring); (Flaherty, dissenting; Zappala, Commonwealth v. J., Clark, (1998) (Zappala, concurring; Nigro, A.2d 31 551 Pa. J., concurring). by jury, prosecution victim was a found witness to felony for pur- committed and was killed *35 pose preventing testimony against appellant. argu- of his appellant’s ment that murder of a constituted victim/witness attack justice system an on the criminal was fair and relevant argument purpose for this not suggest danger- did future ousness.
Finally, having found no in appellant merit the claims raises, this Court must conduct a statutory review of the penalty record, of A death. careful review of the conducted pursuant 9711(h)(3), to 42 § Pa.C.S. us convinces imposed product passion, sentence was not the of prejudice or Furthermore, any arbitrary other factor. find that we evidence was aggravating sufficient establish the circum ie., by jury, stance found Daryl murdered prevent Martin testifying against Martin from him in a 9711(d)(5). pending trial for aggravated § assault. Id. Ac cordingly, we affirm the verdict and of the sentence death imposed upon appellant by the Court Common Pleas of County.20 Lancaster
Former Chief Justice FLAHERTY did not in participate the decision of this case.
Justice a concurring opinion NIGRO files in which Justice joins. CAPPY
Chief ZAPPALA concurring Justice files a dissenting opinion. concurring.
Justice NIGRO I join majority’s opinion in its entirety excep- with the tion of the statements in contained footnote 16. As the majority correctly concludes, trial court’s exclusion “third party impact” in evidence the instant did case not run Carolina, Skipper afoul of South 476 106 U.S. S.Ct. Prothonotary 20. The of this Court is directed to transmit to the Gover- trial, complete nor’s office a full sentencing record of hearing, imposition by Supreme pursuant sentence and review Court to 42 9711(i). § Pa.C.S. (1986), fall within type of evidence 90 L.Ed.2d nor does in specific mitigating circumstances outlined any eight of the 9711(e)(l)-(8). However, ma- join § I cannot 42 Pa.C.S. because, estimation, in it my jority’s dicta footnote party impact” that “third evidence proposition advances justify aggravating evidence to actually be used could me, though, It is clear to imposing penalty. the death capital sentencing has no in our scheme as place such evidence evidence, fact that an observation affirmed aggravating statutory aggravating is not included within the this evidence penalty death permit imposition circumstances 9711(d)(1)—(18). § 42 Pa.C.S. in this Commonwealth. See recognize thoughts expressed I that the footnote While rejecting Appellant’s part reasoning not used are *36 reasons, claim, join I foregoing for the cannot substantive majority opinion. portion of the concurring opinion. in joins this Justice CAPPY ZAPPALA, concurring dissenting. Chief Justice that, impact victim evidence is majority holds while The hearing, regarding in a capital sentencing admissible evidence family preclud- had on is impact the crime the defendant’s impact If one assumes that victim evidence is relevant ed. of should be jury’s whether the defendant determination extension, offense, logical of such a view is executed for his execution would impact of the the defendant’s evidence and admis- family equally pertinent have on the defendant’s types of sible evidence. Both evidence tend establish human that has arisen resulting harm from the loss of life by criminal the defendant. Will not from the acts committed a loss when the family impacted be and suffer the defendant’s imposed? impact of such final sentence of death is Evidence impact presented than the victim evidence is no less relevant here the Commonwealth. dis-
My difficulty
my unceasing
in this case stems from
holding
of
controlling precedent
with the
this Court
agreement
As I
impact
is relevant and admissible.
that victim
evidence
Means,
my dissenting opinion
in
noted
(2001)
J.,
(Zappala,
dissenting),
565 Pa.
A.2d
Rice,
(2002)
Commonwealth v.
568 Pa.
impact” party impact” testimony “third is inadmissible type because not fall any “[t]his evidence does within specific mitigating seven in 42 circumstances outlined Pa.C.S. 9711(e). § Nor does it fall within mitigating the ‘catchall’ 9711(e)(8), § circumstance encompasses, outlined which ‘[a]ny other of mitigation concerning evidence the character record the defendant and the circumstances of the ” Majority offense.’ opinion agree at 27. I party that “third impact” evidence does not fall within first specific seven statutory mitigating I agree circumstances. also that such evidence does not fall within the catchall mitigating circum- stance, 9711(e)(8), § 42 Pa.C.S. as it go does not to the character, defendant’s his record or the circumstances however, offense. This not inquiry, does resolve the as our holding Means very was based on proposition *37 capital evidence in a sentencing hearing necessarily is not to mitigating limited the enumerated aggravating circum- stances. Means, argued the defendant victim impact because
evidence was not related to an aggravating mitigating or statute, factor set forth in sentencing the it could not be presented to jury during penalty a phase proceeding. This rejected Court proposition ground on the that “Pennsylva- sentencing nia’s scheme does not limit the evidence admissible penalty phase only the to necessary the information to Id. aggravating establish and mitigating circumstances.” 534 Jamal, v. Abu 521 Pa. Quoting Commonwealth (1989), in Means stated:
A.2d the Court limiting scope of the do not read the statute We has legislature to this extent. The sentencing hearing may be sentencing hearing, evidence directed that “[I]n relevant matter that the court deems presented any as to to im- question of the sentence be and admissible on the to relating any shall include matters posed and in sub- mitigating specified or circumstances aggravating (e).” 9711(a)(2). (d) § sections Pa.C.S. Means, (emphasis sup- 773 A.2d at
plied).
Thus, party impact” that “third evi- majority’s finding circum- any mitigating not fall within enumerated dence does simply significance. is of no The issue becomes wheth- stance of the on defendant’s impact er evidence of the crime I imposition to of sentence. must admit family is relevant party my finding relevancy impact” “third evidence impact found in victim solely to the relevance the Court is tied on the life of permitted placed Once a value is be evidence. victim, family permitted be should not the defendant’s worthy testify that the defendant’s human existence likewise eyes jury? of the of value opened our Court has the door Accordingly, because jury regarding impact evidence allow the hear death, door should not now close when the defen- victim’s impact as to attempts dant to offer evidence execution disparity to this in treat- will have on his benefactors. Due ment, for a I would reverse the sentence death and remand hearing during may present which the defendant penalty new party “third impact” evidence. The Commonwealth notes this was inquire diagnosis of into other characteristics that are relevant to a disorder, IV, personality as in DSM antisocial described but that thereby ruling put hampered an to this court’s end effort and impeach Berger. Dr. ability to Commonwealth's ty, Berger [appellant] Dr. did not although said that have question- this The of of purpose disorder. ultimate the line remorseful; ing [appellant] was not to establish was whether rather, of Dr. portion Berger the cross-examination of impeach was part one the Commonwealth’s effort to expert defense witness. The believes that the Com- Court good basis pursue monwealth had faith to the line of questioning concerning it did in remorse the letters that questioning was not a on [appellant’s] comment decision to right his constitutional to exercise remain silent. Trial Court op. at no ruling. We see error in the trial court’s The purpose pursued for which this point was is essential to assessing its propriety. questions concerning whether appellant capable was of remorse were not aimed rebut ting a mitigating suggesting aggravating circumstance or an Rather, purpose impeach circumstance. their was to Dr. Berger’s opinion that appellant suffered from a detach personality disorder as to opposed antisocial ment/attachment Furthermore, argued disorder. the Commonwealth never remorse, jury appellant lacked much that his less lack of should be jury remorse considered an aggravating an rebutting unpur circumstance or as evidence sued mitigating addition, circumstance remorsefulness. responses Dr. Berger’s questions to the Commonwealth’s in prejudicial no way appellant, Berger Dr. since opined on more than one occasion he believed reasons, capable For appel remorse. these lant’s claim lacks merit. last that the contends trial court erred refusing request jurors, his instruct pursuant Sim Carolina, mons v. South U.S. S.Ct. (1994), L.Ed.2d 133 possibility parole there is no from a imprisonment Pennsylvania. sentence of life “A Simmons instruction, detailing Pennsylva what a life sentence means nia, only if required prosecution makes defendant’s dangerousness future an in the issue case and the defendant