*1 107A.3d 52 Pennsylvania, Appellee, COMMONWEALTH of
v.
Christopher Lynn JOHNSON, Appellant.
Supreme Pennsylvania. Court of
Argued March 2014.
Decided Dec. *9 Office, Kris- Mott, Public Defender’s Esq., Alexander Sean Office, Rice, County Public Defender’s Esq., Luene Adams tin *10 Christopher Lynn for Johnson. Falin, County District Montgomery Esq., Martin
Robert Office, Esq., County Adams Wagner, C. Attorney’s Shawn Office, for Esq., Common- Attorney’s Amy Zapp, District Pennsylvania. wealth of BAER, TODD, C.J., SAYLOR, EAKIN,
CASTILLE, McCAFFERY, STEVENS, JJ. THE ANNOUNCING JUDGMENT
OPINION THE OF COURT Justice STEVENS. sentence of judgment from the appeal
This is a direct Christopher Lynn the conviction of following death murder1 first-degree on one count of (“Appellant”) Johnson County entered in the Adams Court charges2 and related reasons, we affirm the following For the Common Pleas. judgment sentence. 11, 2010, of November night
The record reveals that on Grove, Officer Deputy David Wildlife Conservation Officer Commission, the area patrolling was Pennsylvania Game in Freedom Town- Military National Park Gettysburg near 911 County he informed Adams County Adams when ship, a vehicle “spot- center at 10:32 that he had encountered p.m. at 56. just from the Battlefield. N.T. lighting” across 9/24/12 trial, the 911 who testified at Officer According operator to pre- that he was p.m. seconds before 10:34 reported Grove he trans- just p.m., vehicle. At after 10:35 pared stop § 1. 18 Pa.C.S. 2501. manufacture, use, possess, charges were Persons not
2. Related control, firearms, § not be 18 Pa.C.S. Firearms sell or transfer 6106; license, Possessing § instru- carried without a 18 Pa.C.S. crime, § 907. ments of 18 Pa.C.S. denoting wildlife sighting of deer or other “Spotlighting” is a term high spotlight. night powered of a with aid mitted the license plate truck, number of the stopped pick-up registered which was to Appellant. justAt before p.m., 10:37 Officer Grove stated that the driver and passenger were out of the pickup truck and he awaiting assistance before pro- ceeding further.
The next transmission the 911 center would receive came from responding who, Officer Daniel Barbagello, at seconds before down, 10:39 called p.m., “officer officer down.” N.T. at 59. Officer Barbagello detected no pulse when he examined Grove, Officer times, who had been shot three including a fatal shot to the back of the neck.
For the six hours leading to that up tragic shooting, year-old Appellant and his 19 year-old friend Ryan Laumann had been beer drinking and driving Appellant’s truck pick-up in the area looking deer to shoot. N.T. 479-515. Earlier *11 afternoon, that Laumann had returned home from work at about p.m. 4:00 to find Appellant waiting there with the odor of an alcohol called “99 Bananas” on his breath. N.T. at 476. perceived Laumann Appellant fine, to be “walking talking fine,” he though “seemed to be maybe a little like tipsy buzzed a little bit. He was kind of giggly, just more or less kind of at giggled the smallest things little a little bit.” N.T. at Laumann, 478. hunter, a licensed brought his bow compound with him and rode passenger as Appellant drove capably, Laumann’s opinion, for the approximately five minute drive to the Johnson’s cabin hunting off Orrtanna Road. N.T. at 479- two,
After a beer drinking or the two men shot Laumann’s bow, compound and Appellant’s crossbow and .22 rifle long with a scope to make sure they were still “sighted in.” N.T. at 480. They along walked the tree line and climbed up into stand, their tree a three to four foot wide landing accessible an 18-step, ladder, metal leaning N.T. at 488. Laumann carried his bow compound up the ladder while Appellant made his way up the ladder carrying his crossbow without any problem. N.T. at 489. The two sat on the tree stand until restraints, dark without any safety beer, drank and watched for deer. N.T. at there, 480. Over the course of their time from a 12- drink six or seven cans Appellant
Laumann saw he three. at while two or N.T. Light Bud had pack night beer that was a small 490. Another source of available creek, in the Laumann did not state though stock of kept cans any from that stock. definitively Appellant whether drank certain, sure,” Laumann but not “pretty N.T. 492-93. was truck. all were thrown into the bed empties pick-up that dark, the down from the tree N.T. at 493. At men climbed cabin, Laumann saw again, stand and walked back he having difficulty to indicate nothing Appellant about N.T. at than the moment with balance. 491. Other boarding went back into the cabin before Appellant quickly leaving, together men were the entire pick-up and two time. N.T. at 484. Orchard, began the two to
Appellant they drove Ross where N.T. had no for deer. at 494-95. spotlighting roads, which Laumann de- problem negotiating orchard’s “just enough scribed little dirt lanes wide a vehicle” time[,]” “a little from time to with one hand on bumpy simultaneously spotlight wheel while a out the driver’s holding other, N.T. at 498. side window with the Laumann testified. number without any attempt The two of deer spotted roads, hunt, They and then left the orchard. drove local along lane, down turning bridge, went across a a stone frequently, they across at Red N.T. a creek until arrived Rock Road. at 500. Laumann witnessed drink “a few” more time, this Light during beers from the Bud but noted 12-pack road had Appellant negotiated stretch of where two *12 N.T. at 503. gotten only days stuck ten earlier. when his shone
Appellant stopped pick-up spotlight leaned out and over the roof and upon doe. He the window doe to 25 light directly positioned continued to aim the on a away along in a field side as Laumann yards passenger left his registered just a strike behind the deer’s shoulder with compound bow. N.T. at 505. The two did not retrieve deer, to to die. 507. give instead it time N.T. at opting further Rock about a few along drove Red Road yards spotted hundred when he a deer a field on the deer, driver’s side. N.T. at 507. Saying he wanted the he backed into a up driveway to change directions on Red Rock He regained Road. sight deer and shone a light on it while Laumann pointed the .22 long rifle outside the passen- ger fired, side window and but he missed. Appellant grabbed the rifle from his in the position driver’s seat and leaned across the console poke out the body passenger window while still holding the spotlight with his left hand. He then braced the rifle between his arm right and torso and fired deer, twice at the causing it to stumble and fall. N.T. at 507- 512. examination, On cross Laumann confirmed that Appel- lant, whom he shot,” described as an “average would have used his hand right pull the trigger, swing the oval lever beneath the trigger down to the shell discharge and back toup load the next shell place, into and then pull the trigger take the second shot. N.T. at 566-67. off,
Appellant drove leaving retrieval, the deer for later turned down nearby Schriver Road when he and Laumann noticed headlights from appear behind. N.T. at 516. Lau- mann said he believed it was “DNR”4 and Appellant replied you “Do think?” they saw blue and red lights overhead activated. N.T. at 516. Appellant continued to drive around a bend and pulled over alongside the road near pine trees and roadside brush. cross-examination, N.T. at 517. On Lau- mann insisted Appellant pulled over immediately, at the first safe opportunity, upon seeing overhead N.T. lights. 576.
Before their encounter with Officer Grove begin, would Laumann worried they aloud that were in “a lot of trouble” for deer, shooting the to which Appellant replied I worry, “[d]on’t got you, but I’m not going jail.” back to N.T. at 518. said this a “normal tone like serious, he was being but [Laumann] did not take it as threatening ... like he was to harm going anybody.” N.T. at 518. Presumably, acronym Laumann "Department used the DNR Resources,” though Natural specify when asked to he said "Game Officer.” N.T. at 517. *13 them addressed seated as Officer Grove
They remained at 517. He ordered N.T. patrol from his SUV. loudspeaker keys the out drop and engine to turn off Appellant N.T. at 517-18. window, complied. Appellant side and driver’s lean his arm outside to Appellant then directed Officer Grove window, using side door the driver’s open side the driver’s door, vehicle, close the and handle, step outside exterior Again, Appellant the vehicle. atop his hands stand with N.T. at 518. complied. any passengers asked if there were Grove
When Officer nodded, Lau- vehicle, gave and Officer Grove Appellant placing and his hands exiting instructions for mann same at 519-520. After N.T. alongside Appellant. on the vehicle time, Grove men to remain still at that Officer ordering the He if one minute. asked in his vehicle for about remained so, where, and, if and Appellant in the car weapons there were in the back seat of cab. weapons there were answered N.T. at 522. he to Laumann that whispered this time Appellant
It was at Laumann warned there his side. N.T. at 521. had a .45 on it would be he do about it and nothing could then away. taken N.T. at 521. Officer Grove discovered and hands on his head and walk place to his Appellant ordered was able to car. patrol Appellant backwards towards the approached Appel- N.T. at 579. Officer Grove comply. him, Appellant yell on placed prompting lant and a handcuff I arrested?” N.T. at 523-24. Why being did I do? am “What began resist. gave Appellant no answer Officer Grove testified, rose, as he issued voice Laumann Officer Grove’s get during struggle five commands four or heard was the thing The next Laumann ground. down on the ground to the dropped and Laumann gunshots, sound at the encounter. N.T. 525- sight the truck and lost behind second, Laumann saw he for a peeked 26. When at firing least leaning posture in a backward standing right with the gun more shots in succession rapid three 527, 530, arm extended. N.T. right fully hand and Laumann screamed name then everything went silent.
When Laumann looked he saw up, Appellant rise from a truck, run for his lying position, and stumble and fall while hit, “I’m I’m yelling hit.” N.T. at 533. Appellant reached on ground around near the driver’s side of his vehicle and found keys his where he discarded them minutes before as instructed. N.T. at 535. Laumann up stood and was ordered in the Appellant get pick-up. N.T. at 535. Laumann then at looked over vehicle and could see patrol Officer Grove with his head lying facing the rear tires and his legs to the middle of the pointed road. Laumann boarded the pick-up Appellant drive, and started the it in engine, put and off. N.T. at sped 535.
Leaving hour, the scene at between 60 per miles Appellant made numerous turns and the “real nar- navigated row ... bumpy and real he windy” pathways had earlier used 536, to get to Red Rock Road. N.T. at 539. Appellant As manner, drove in this Laumann him open observed the center console and reach to grab around what Laumann believed to .45, be a clip for his which on already lay lap his as he drove. N.T. at 538. Laumann believed it to be a because clip Appellant thereafter leaned lap forward over his and Laumann heard “click like a noise” as when a snap clip gets pushed into a N.T. at 539. Laumann handgun. kept telling Appellant that he wanted to out of the and get pick-up, about four to five minutes into flight, his at a Appellant stopped stop sign rural and allowed Laumann to his grab belongings get out of the vehicle. N.T. at 537. later,
Hours Laumann knowledge denied of the incident house, when visited his investigators saying that had him off at his dropped girlfriend’s p.m. house 6:30 N.T. at 590. He recanted his false statement the morn- following however, ing, and provided investigators eyewitness with a full crime, report he although withheld an admission to his
having killed a with deer his bow and fired at another deer just with a .22 rifle until two weeks before trial. N.T. at 548- 550, 552, 591, 602. he believed trial whether Appellant’s capital
When asked at the events of Novem- any during drunk at time Appellant was N.T. Appel- answered “no.” at 553. ber Laumann no while and caused Laumann concerns lant seemed “normal” times he said. “There were evening, he drove throughout when took it that he kind of a little bit. That’s I giggled drunk, I but he Like wouldn’t consider him maybe tipsy. was he was the alcohol.” N.T. at 554. feeling that, him, testimony, he tipsy
Later elaborated at 571. halfway buzzed between sober and drunk. N.T. meant not strictly counting He also he was the number stated “rough six or seven beers drank reiterated that while he estimate.” N.T. at Laumann saw the clear of full beer cans out of the Appellant pull bag *15 them, he a beer Appellant pull creek to check on never saw out of the N.T. at 573-74. bag. a.m., morning,
The at 9:30 Edmund following approximately along Bingham Township Miller was Road Franklin driving sunny as a in his work on what he described cool but capacity he pleasant day spotted Appellant along and when limping knowing N.T. at 280-81. side the road. Not 9/25/12 and if he needed stopped Miller nevertheless asked Appellant, ride, but acted and did not to want “aloof’ seem Appellant hurt,” like and you’re one. N.T. at 281. Miller said look “you a ride. then his invitation for N.T. at 281- Appellant accepted they his and directed as Appellant gave 82. destination Miller was why Appel- drove. When Miller asked Appellant limping, in the explained slipped up lant he had on a rock hills. N.T. two miles approximately Appel- 283. Miller drove the toward cabin, lant’s Road and as he turned onto hunting Orrtanna Road, he could cars About ten police Orrtanna see ahead. on truck when he in the police converged stopped officers said, cabin, lane to the Miller and did leading Appellant dirt drop wanted in the “nothing.” just [me “He to lane” turn] off, way, him he would walk the rest of the Miller and said then his own got testified. out of truck of Appellant 288, 284, 286, accord. N.T. at 289. immediately Appellant ground
Officers secured on the with his hands cuffed behind his back N.T. at 298-300. Armed officers backed from away Appellant Pennsylvania State Neal Trooper Navitsky Fugitive Apprehension Unit to read Miranda approached warnings Appellant. to N.T. at After rolling Appellant 315. on his side to confirm his identity and rule out a wound to the abdo- possible gunshot men,5 Navitsky crouched down to level with Trooper eye him explained the extreme importance him, what was about to be read to that if he had he questions ask, interrupt needed to and that he must maintain eye contact so the would know he was trooper being attentive. N.T. at 325. that he understood Appellant acknowledged Trooper Navitsky’s instructions and maintained contact eye throughout Miranda N.T. at warnings. Trooper 317. When asked him if he Navitsky rights just understood the that were explained, Appellant that he did. N.T. at acknowledged 317. Asked rights you these mind do wish to talk with “[w]ith Appellant again us?” answered in the affirmative. N.T. at When asked what here to this brought everyone point, Appellant replied that he had made some bad decisions. Adams Frank County Donnelly Appel- Detective then asked lant if he realized a police he shot officer last Accord- night. ing Trooper Navitsky, Appellant replied he “didn’t shoot a officer. He police just game warden.” N.T. at 318. then attempted clarify his remark he saying *16 the distinction between a simply noting police officer and game a warden. N.T. at 319.
Trooper Navitsky redirected the conversation back to the previous and described the night, Appellant sequence entire leading up shooting, specifically: events to the he and Lau- given Trooper Navitsky Appellant 5. Initial information to was that possible gunshot sustained a wound to the abdomen. N.T. at 324. His however, Appellant injury, examination of revealed no abdominal but disclosed, instead, just Appellant’s a small amount of blood below belt ink, right hip, pen your pocket on his "as if a were to burst in and leak probably just it was that amount of blood that was below his belt line.” N.T. at 324. but saw red they drove off night; a deer at mann had poached for a and over pulled from behind appear lights and blue and place to exit their vehicle ordered they were stop; vehicle of the .45 truck; thinking” to “got on his he their hands prohibited he was on his waistband because handgun caliber it, contemplated removing and from possessing as an ex-felon Grove’s to hide it from Officer it under his truck kicking it and walk backwards towards detection; with orders to complied he Grove; placed when Grove he Officer “panicked” Officer .45 hand, and drew his away it right pulled on his handcuff how he When asked N.T. at 319-322. with the left hand. that, while his using he gun, explained to managed grab his to the he used sightline gun, to block Officer Grove’s body holster, on the draw the release manipulate left hand to N.T. at begin firing. hand to right transfer it to his gun, and exchanged gunfire, Appellant He and Officer Grove 322. vehicle and drove he retreated to his and afterward reported, condition. N.T. at Grove’s checking without on Officer away 322-323. Teaberry a road off of he drove to up said truck, Road, began parked Springs
Mountain Cold steep slope He ascended a foot. N.T. at 324. traveling by his .45 and threw high peak, until he reached a the woods threw his holster peak of the down one side handgun to treat attempted N.T. at 324. He down the other side. belt to act as his leather hip by cinching wound to his gunshot said, the wound. to provide compression he tourniquet, 324. N.T. at interview, Navitsky Trooper minute this initial ten
During to the “very responsive much” answers found did him. N.T. at 327-28. questions being put “no,” but, de- provided or instead “yes” answer simply not understanding ques- an demonstrating tailed answers Notably, at 328. asked, stated. N.T. trooper tions testified, of ex- no indication Appellant gave Trooper Navitsky interview. N.T. during or discomfort periencing pain and, appeared it throughout contact eye He maintained in an spoke unguarded experience, in his Trooper Navitsky *17 giving manner consistent with the of truthful answers. N.T. at 328.
Trooper Navitsky paused the interview when EMTs arrived to treat and transport Appellant hospital. to a N.T. at 326- meantime, gained 327. He access to a voice recorder in the fully and he and another trooper uniformed waited about ten minutes while EMTs prepared Appellant. They eventually boarded the ambulance with three EMTs and Appellant inside, resume the interview. N.T. at 329. Trooper Once Navitsky began recording and held the recorder in front of Appellant where he could see it. N.T. 330-331.
Portions of the were at trial. N.T. recording played at 337. outset, “ouch, ouch, At the Appellant can be heard saying ouch[,]” which Trooper Navitsky attributed to Appellant’s being placed on his back on the litter him causing to lie on directly his cuffed wrists. N.T. at 338. The troopers cuffs, removed the repositioned Appellant’s arms to the front of his body, and cuffed each hand to the nearest siderail of the comfort, stretcher about giving Appellant eight six or inches of with each mobility arm. N.T. at 338.
At that point, Navitsky noticed the EMT Trooper preparing to administer He morphine Appellant. can be heard on the tape asking if he could have five minutes to record administered, statement before the morphine was and the EMT answered “that’s fine.” N.T. at 339.
Trooper Navitsky witnessed no men- change Appellant’s tal status the course of his N.T. at 340. during interrogation. very “He was coherent. He was calm. He was attentive. He was and he being respectful polite answering my answers[,]” on questions accordingly expounding his The Trooper Navitsky testified. N.T. at 340. recorded state- ment with the “Before we I began question: spoke, did read “Yeah, Miranda you something?” rights.” answer was Appellant confirmed he knew what Miranda were and rights denied having any illegal drugs system. N.T. at 341. drunk, many When asked how beers he had an- swered “two to three.” N.T. at 342. handgun the .45 having possessed acknowledged *18 prison. release from after his starting shortly years, three
for observed targets the about silhouette questions He answered of three grouping for the closest and took credit at his cabin out to yards accuracy from holes, attributing his bullet gun the turning of stance instead taken a “normal” having practice other on his he had done apparently which sideways, shooting for credit also took Appellant N.T. at 344-45. shots. sure his Road, pretty was saying he on Red Rock the deer was a mechanical mark, thought deer hit its shot seen on Iron he said he had the kind at first like decoy after the first shot. it had not moved Road because Springs his left .45 on about the holstered asked N.T. at 345. When awas Blackhawk that the holster explained hip, Appellant go straight to gun left to allow brand, hip on the angled designed require to across and reaching right into the hand gun so the won’t before one of a button draws push release fall. N.T. at 346. Trooper involved recorded interview next of the portion
The tape recorder request turn Navitsky noting Appellant’s Trooper off the record. topic a so he could address off wished to Appellant at trial later Navitsky explained in the Ryan participation Laumann’s trooper advise 348. at night of a deer before. N.T. poaching that Ap- confirmed on cross-examination Trooper Navitsky statement were and his recorded initial statement pellant’s statement, the troop- in either identical. Nowhere essentially attempted he testified, admit that explicitly did Appellant er 358. at or kill Officer Grove. N.T. directly shoot staff trauma Hospital York Hughes, Doctor Kern Michael morning on the at about 11:00 a.m. testified that surgeon his trauma unit 12, 2010, brought was Appellant November 369. injury. N.T. at a serious gun-related possibility and, personal a taking normal after signs His vital were reviewing both exam physical history, conducting and pelvis, abdomen scan of x-ray, and CT chest hip in Appellant’s the bullet wound Hughes determined Doctor N.T. at 371. hip. regions superficial confined to the as Dr. called it in terms Hughes layman’s This “flesh wound” intervention, no treated antibi- required surgical and was with notes, otics and a N.T. at Dr. fur- dressing. Hughes’ thermore, during described as alert and oriented examination. N.T. at 372.
As he does trauma patients with all due to concern of blood loss, continued, Dr. Hughes sought he to rule out hypothermia during his examination and physical laboratory testing Appellant. did not with even present hypothermia, with his to the exposure night, cool and so he excluded it as a cross-examination, concern. N.T. at 374. On Dr. Hughes acknowledged that the ride in a heated ambulance hour-long while a 100 receiving milliliter warm bolus would have IV affected Appellant’s hydration body temperature to some *19 degree, on the issue of bearing hypothermia dehydration. and N.T. at Appellant complain 382-83. did to Dr. pain Hughes. subjective N.T. at 374. Pain is a Dr. very thing, Hughes explained, and so was medicated in accor- Appellant dance to his complaint.
The Commonwealth with one count of charged Appellant first degree murder and related offenses and him notice gave in aggravating pursue circumstances it intended to the event he was convicted on the main The trial court charge. thereafter denied motion Appellant’s pretrial omnibus quash all but one circumstances and to aggravating suppress his police, being statements to the latter motion denied follow- The court ing hearing. grant Appellant’s did motion for a venire, change jury County. and a was selected in Lancaster Trial in commenced the Court of Common Pleas of Adams 24, 2012, on County September with the Honorable Michael A. 3, 2012, George presiding. On October the returned a jury in guilty charge degree verdict on the of murder the first and related The charges. proceeded penalty phase case where the sought aggrava- Commonwealth the death on four penalty official, ting factors: that the victim was a law enforcement 42 9711(d)(1); § Pa.C.S. that the victim was a wit- prosecution ness killed for the purpose presenting testimony, 9711(d)(5); § killing that the while in the happened perpetra- 9711(d)(6); had a that the defendant § felony, of a
tion the use or involving felony convictions history of significant 9711(d)(9). Appellant’s § the person, violence to threat of with friends relationship loving focused on his proffer Jasmine, and daughter, old year in his nine family, particular con- from alcohol experienced he impairment the substantial jury phase, the penalty At the conclusion of sumption. the victim was circumstances —that aggravating found two while killing that the occurred officer and law enforcement mitigating one felony only of a perpetration —whereas found, catch-all Pa.C.S. circumstance was 9711(e)(8). unanimously aggravating Concluding § circumstances, mitigating outweighed circumstances for the murder Officer to death jury sentenced Grove. motion for denied subsequently
The trial court 15, This fol- appeal direct on October reconsideration three issues lowed, guilt-phase raises in which review. issues for our penalty phase six Sufficiency First of the Evidence of I.
Degree Murder Conviction. issues, enumerated addressing Appellant’s Before cases, whether consider, capital as we must all we degree the convictions of first support sufficient to evidence is Zettlemoyer, v. Pa. 454 A.2d murder. Commonwealth (1982). sufficiency evidentiary presents Because 942 n. 3 *20 is novo and our law, of review de a our standard question Sanchez, 614 v. Commonwealth scope plenary. of review is (2011). 1, 24, Pa. 36 A.3d 37 evidence, we sufficiency reviewing
“In trial, at and all the evidence admitted must determine whether evidence, when viewed drawn from that reasonable inferences verdict as most favorable to the Commonwealth light in the fact finder to conclude winner, to enable the was sufficient all the elements of the established that the Commonwealth v. doubt.” Commonwealth a reasonable beyond offense (2003). Fears, 52, The 281, A.2d 58-59 Common- 575 Pa. 836
517 may wealth sustain this burden means of circum- by wholly Montalvo, 263, stantial evidence. Commonwealth v. 598 Pa. (2008). 926, 956 A.2d 932 murder,
To obtain a degree conviction of first Commonwealth must killed,
prove that a human being unlawfully that perpetrated defendant and that the killing, defendant acted with malice and a intent to specific kill. Common 621, (2008). 916, wealth v. 598 Kennedy, Pa. 959 A.2d Section 2502 of the Crimes Code defines murder of the first degree as an killing,” § “intentional 2502(a), Pa.C.S. which, turn, in is defined as a “Milling by poison, means of wait, or in by lying willful, or other any kind deliberate 2502(d). premeditated § Id. killing.” It is well- settled that specific intent to kill can be through established circumstantial evidence such as the use of a deadly weapon on a vital part of the victim’s body. Commonwealth v. (2007). 659, 997, 1009 Rega, 593 Pa. 933 A.2d Diamond, v. Commonwealth 623 Pa. 83 A.3d (2013).
The evidence as set forth above and admitted in Appellant’s jury trial support sufficed to his conviction of first degree murder. Both Ryan Laumann’s statements identified as the man who shot Officer Grove after making considered decision that he would not back to go In prison. respect, Laumann provided eyewitness testi- mony thoroughly the circumstances in detailing Appel- which times, lant shot multiple including Officer Grove a fatal shot to the neck. also physical demonstrated no or mental impair-
ment from alcohol to and up including time the shoot- ing, Laumann’s acted communi- opinion, Appellant narrow, cated a normal manner. He was able' to navigate windy aiming roads while and to shoot spotlight accurately at deer while from inside his holding light pulled truck. He over at the spot first available safe when Officer had Grove lights. activated his overhead He stated that he clearly *21 arrest impending about their Laumann’s concern understood back to going prison. he was not calmly said but poaching, physi- and execute Officer Grove’s to understand He was able in a counterintuitive to exit the vehicle orders cally demanding with his hands the officer backwards toward and walk way in dexterity and He exhibited coordination his head. atop simulta- from the officer while right cuffed hand freeing his with his left to his holster the release button neously pressing hand to right it to his hand, switching and gun, his drawing crashing He avoided Grove. firing Officer commence scene, he and from high-speed flight his during pick-up truck pick-up let out of the to be request Laumann’s honored Laumann allowing and sign at a rural stop stop to a by coming pick-up. exit the belongings and gather his that not following morning a statement the gave Appellant keen displayed also content but incriminating contained only evening, prior detail about the sequence and recollection did not affect inference that drink the reasonable permitting forming to the element any way pertinent his faculties led to Officer bad decisions admittedly intent. His specific death, Navitsky, to Trooper confessed Grove’s en- during a mindset reflecting account he an provided implications appreciate that was able to both counter options over his and deliberate gun possession poaching example One consequences. their respective understand to hide his .45 from trying he considered latter is when he stood truck as pickup it under the by tossing Grove Officer he to show it, presumably in his statement he said alongside clearly He possibilities. of non-confrontational thought had futile, however, instead to choosing rejected option this arrest. in violence to avoid Grove engage Officer night use on the alcohol the issue of On extent, his state of any, if it affected and to what question toxicol- the Commonwealth’s shooting, at the time of the mind Donovan, M.D., to a reasonable opined expert, J. Ward ogy fully capable “was certainty of medical degree judgment.” of rational capability intent and had forming factoring Appel- even when Specifically, at 1067. N.T. 9/28/12 lant’s “buzzed” state at the time he first met with Laumann *22 adopting for the sake argument the position defense that Appellant consumed about twelve beers over the next six and one-half hours bring him within an expected BAC range of .15 to .22 percent, Dr. Ward interpreted Appellant’s physical deeds and statements at the critical time period, along with his clear memory of the entire evening as demon- strating higher cognitive functioning consistent with an intact mental state capable forming specific intent. N.T. 9/28/12 at 1069-1086. the Finally, autopsy report ballistics evi- provided dence further evidence establishing that among seven shots fired at Officer Grove from close range, officer, three struck the a fatal one including to a vital part body officer’s neck. Accordingly, we conclude there —the was sufficient evidence establishing that Appellant shot Officer Grove to death with malice and the specific intent to kill. Penalty-Phase
II. Admission of Rebuttal Evidence Appellant argues that the lower court erred in admitting year-old seven conviction for Endangering the Welfare of a Child—his then fourteen month-old daughter, Jasmine —as 9711(e)(8) rebuttal to his Section “catch all” mitigation proffer that he currently shares a close and loving relationship with eight year-old Jasmine, now especially where such evidence was admitted without further limiting instruction. The rebut- tal evidence not only inflamed passions of the jury by it that informing he had driven over 100 miles per hour with car, his toddler daughter contends, but also failed the test of as it relevancy, involved an act far too remote in time from the specific defense Appellant cur- proffer rently offers significant emotional support daughter his would continue to do so while incarcerated. N.T. at 1845. As such, the court’s denial of Appellant’s motion in limine seek- ing exclusion of the prior offense constituted reversible error under 403, Rules of Evidence 404 and as well as under the Eighth Amendments, and Fourteenth Appellant asserts.
The Commonwealth responds that the trial court properly admitted the rebuttal evidence because Appellant’s Section
9711(e)(8) parent- the current beyond went far presentation and a testimony describing, it included relationship child when close years ago, from relationship their depicting, slide show such, was proffer the mitigation As in time to the 2005 offense. that Appel- to its suggestion with subject challenge respect the course loving throughout father responsible, lant was a argues Commonwealth. parenthood, a motion in for the denial of of review The standard Rosen, v. of discretion. Commonwealth is an abuse limine (2012). of discretion “An abuse 42 A.3d 615 Pa. and, appeal, on judgment error in just more than an is abused its discretion be found to have trial court will not judgment exercised record discloses that unless the *23 unreasonable, partiality, prejudice, or the result of manifestly Smith, Pa. 673 v. ill-will.” bias or Commonwealth (1996). A.2d called several wit- Appellant penalty phase,
During character. evidence as to his provide mitigating nesses to Appellant watched next-door Barbara Garde neighbor Former him and a father. She described a child to an adult grow from father in my very loving, loving, responsible a “very, good cross-examination, she was asked opinion.” N.T. On for an incident his 2005 conviction whether she knew of chase with the high speed police in a engaged which he was seat, in the back to which Garde daughter while his my doesn’t “no, change aware of that. It I wasn’t responded she To the of whether question N.T. 1548. opinion, though.” loving, responsible very good, consider Appellant would still “Well, one inci- father, for that maybe except replied Garde just single a father than one being a lot more to dent. There’s N.T. at 1548. incident. Johnson, sister, described the Brandy younger
Appellant’s Jasmine, saying between loving relationship was born. day since the she always daddy’s girl been “[s]he’s Dur- for her.” N.T. at 1555. anything do would Christopher Jasmine’s played depicting a video was ing testimony, her narrated scenes Brandy Johnson birthday party third while cake, explaining Appellant got prepared how the whole beforehand, day and doted on Jasmine at the in a party N.T. at variety ways. Brandy 1558-59. also described how raise her Appellant helped “taught son and him how to be a boy” during this same timeframe. “He do anything would babies[,]” them Brandy two little testified. N.T. 1560-61. She also testified as to how took better care of her than their father did when were they children growing up together. N.T. 1572. mother, Kimberly Topper, gave extensive testi- about
mony Appellant’s history as a father from the starting day Jasmine was born: “I could see the in his lights eyes was like the I lights. beauty [sic] could see the that he saw in her like the day he was born that I saw in him.” N.T. at 1480-81. Topper described how Appellant primary assumed responsibil- ity for Jasmine’s emotional and financial support when Jas- mine was around one year old because of the mother’s drug using lifestyle: mom, “He I say,
[TOPPER]: would can’t keep my eyes He open anymore. says, I’m Jasmine is going get afraid hurt. you just Can come here and let me an get hours’s hours, sleep, [sic] two like that and I’d her something go get and bring her back to work with me.... Sometimes I’d have to wait until I got off work at three or four so he could aget hours before he couple sleep go had to back to work and sometimes just she’d show before he had to up go out, know, work. you She would be she was running around *24 with friends and—” added).
N.T. (emphasis at 1482 Topper also narrated a slide show which included photos depicting, other among things, and Appellant together years. Jasmine her first N.T. at 1499-1500. correct,
The trial court’s was ruling as the record Appellant’s proffer confirms was not confined to his current relationship with his but back daughter extended well to a time to his proximate Testimony 2005 offense. referred to his other parenting through years, while witnesses described daughter his been having “daddy’s girl day since she
522 por- character evidence Additional N.T. 1555. was born.” religious, loving to be as a man known traying Appellant to the up behavior and whose neighbors, to helpful kind non-assaultive, made rele- had been also murder time of the time period in this revealing a moment evidence vant rebuttal his child with threat to a posed serious Appellant where her and welfare. safety disregard a conduct marked therefore, contention, admis to Contrary Appellant’s of a Child the Welfare Endangering 2005 Appellant’s sion of (e)(8) prof his to subsection response was relevant conviction to show offered mitigation evidence fer, upon as it bore Jasmine's caring throughout father loving as a of danger that the argument Pa.R.E. 403 To Appellant’s life.6 conviction prior of his from evidence arising prejudice unfair of to the issue respect with its value outweighed probative caring, parent, and selfless history loving, as a Appellant’s prejudice that response any is the trial court’s well-taken jury’s potential result of a not an unfair admission was was, instead, from a fair result but response emotional find thus N.T. at 1368.7 We of act itself. Appellant’s nature merit this claim. no such, Appellant’s argument admission that we deem meritless
6. As non-statutory, the introduction of prior conviction amounted to unduly his miti- aggravating that “obliterated” circumstance additional fall under Properly evidence not gation proffer. admitted rebuttal does 345, 128, Lesko, 609 Pa. 15 A.3d v. category. See Commonwealth such (2011). limiting adjunct instruction argument an that Appellant raises prior inflammatory of his effect admission required cure the jury. Appellant this claim allegedly waived had on the conviction and at during of the through both the admission evidence his silence instructions, light court’s particularly in jury the conclusion limiting "at give a instruction that it pre-hearing assurance would evidence his offer into request” should the Commonwealth Johnson, 668 A.2d v. 542 Pa. prior See Commonwealth conviction. (1995) omis- (deeming appellant’s claim of erroneous waived pursue the appellant when failed of a curative instruction sion instruction). Moreover, applies, as 1925 waiver Pa.R.A.P. matters com- concise statement this claim in his failed to include Lord, 415, 719 v. Pa. appeal. See plained on Commonwealth (1998) concise state- (holding not raised in Rule 1925 issues A.2d 306 waived). ment are
523
Penalty
Applicable
III.
Phase Instruction on the
Voluntary
of
Standard
Review for
Intoxication
Mitigating
as a
Factor
next
sentencing
erroneously
asserts the
court
charged
jury
that the same standard
in the
applicable
guilt
phase determination of whether intoxication diminished Appel
lant’s capacity
specific
to form the
intent to kill also
applied
penalty phase
voluntary
determination
whether his
intoxication
mitigating
served as a
circumstance under either
9711(e)(3)8
42
§
and the
mitigator
Pa.C.S.
“catch-all”
9711(e)(8)9.
§
Pa.C.S.
In so
standard
equating
penalty
with a guilt
jury
reject
standard the
had
already applied
his
defense,
contends,
intoxication
voluntary
the lower
“categorically
court
barred the
from
penalty-phase jury
con
sidering” his
heavy consumption
day
alcohol on the
murder
a mitigating
as
factor and thus denied him his rights
under the
death
Pennsylvania
penalty
Eighth
statute and the
Dretke,
and Fourteenth Amendments. See Tennard v.
(2004)
274, 124
U.S.
S.Ct.
Appellant acknowledges that success on this claim with (e)(3) to the respect mitigator on our depends taking up call to overrule a line of precedent holding guilt that the penalty phase standards in this context are functionally equiv- alent. He attempts distinguish factually the cases from his own, however, and further the precedent having assails inexplicably erroneously grafted guilt standard phase for determining specific penalty phase intent on considerations that are delineated statuto- impaired capacity specifically ry forth a different language setting standard. 9711(e)(3) provides mitigating
§8. for a circumstance when ca- "[t]he pacity appreciate criminality of the defendant to of his conduct or to substantially requirements conform his conduct to the lawof impaired.” 9711(e)(8) provides mitigating upon §9. for a circumstance the exis- ”[a]ny mitigation concerning tence other evidence of the character and record of the defendant and the circumstances of his offense.” *26 “binding it is that
Indeed, has confirmed jurisprudence our murder degree of first convicted that a defendant precedent” would seem intoxication defense voluntary of a rejection in 9711(e)(3) § substantial proving from precluded” “logically in penalty the evidence the impairment by preponderance a Gibson, 512, 332, v. Pa. 19 A.3d 610 phase. Commonwealth 164, Spotz, v. (2011).10 616 Pa. Commonwealth See 529 n. 18 (2012) first murder convic 63, 117 degree (recognizing 47 A.3d (e)(3) mitigator); of the application logically precludes tion Marinetti, standard for guilt phase 1277 (applying 810 A.2d at In so our doing, in penalty phase).11 intoxication voluntary Gibson, impairment recognized that substantial In this Court i.e., (e)(3), capacity disjunctively in subsection capacity either as stated one’s criminality conduct or to conform appreciate the of one’s to law, a means could stand alone as requirements the of the conduct to by dispute Appellee mitigator: no that the "There is which to secure conduct, already ex- criminality for reasons appreciated the of his degree which the PCRA evidence plained. only question is the to The substantially Appellee jury that have demonstrated to the would law.” Id. at 528-29. capacity to conform to the impaired in his conceptual the two Though recognizing difference between subsection a (e)(3) acknowledged application of the same evi- expressions, we still such, assessing specifically appel- dentiary standard to both. As law, applied, we over the capacity to conform to the lee/defendant's guilt-phase voluntary opposing argument, the intoxication appellee’s logical binding precedent that in accordance with defense standard (citing at given the facts of the case. Id. 529 preclusion applied 606, 384, (2010) Flor, 998 A.2d 627 n. v. 606 Pa. Commonwealth (e)(3) that, mitigator volun- (recognizing based on to demonstrate intoxication, or have been "overwhelmed tary the defendant must point losing as to be overpowered by his faculties so alcohol to kill”)) (quoting incapable forming specific intent to Commonwealth a 622, Marinetti, (2002)). To the extent 810 A.2d v. 570 Pa. (e)(3) logically precluded mitigating thus factor is that the subsection kill, specific we intent to jury’s that a defendant formed the the concluded, verdict voluntary a jury may intoxication of lesser "the consider (e)(8).” degree Id. at n. 18. under subsection consider, infra, Appellant’s light precedent that we It is in of this (e)(3) part mitigator— underlying question of whether the second substantially impaired capacity to conform one’s conduct regarding a stringent than the imposes a less standard requirements of the law— guilt specific intent articulated above. phase standard on exceptions to our jurisprudence to allow that 11. Our would seem logical preclusion may attend instances where the observation on greater quantum quality of a or penalty phase defendant introduces guilt-innocence voluntary than he did intoxication evidence may a example, penalty-phase defendant elect abandon phase. For effectively applied Court interchangeably guilt between phase and penalty phase the standard that a defendant must show he was so overwhelmed by intoxication as to be incapable of forming specific intent to kill at the time of the murder.
The Commonwealth responds first that Appellant waived this claim by making vague and undeveloped objec tion to the jury charge. By both objecting ambiguously at side-bar that the charge implicated “one of our mitigators” refusing court’s invitation explicate, answering instead, it, “that’s you, thank Judge[,]” Appellant fatally omit ted to specify (e)(3) whether it was the mitigator subsection (e)(8) was, or subsection in his opinion, unduly affected by *27 The charge. argues Commonwealth also that Appellant effectively acceded to the when he charge replied “there may be” to the court’s comment that “there’s a right case on point” in support of the charge, thereby providing alternate grounds for waiver. event,
In any contends, the Commonwealth (e)(3) claim is meritless as to the mitigator given binding precedent of this Court that the standards are the same. As for Appellant’s argument assailing charge with respect to (e)(8) the subsection mitigator, the Commonwealth points the dearth of voluntary intoxication evidence he offered for this mitigator: “Defendant’s drinking on the day and of night the murder was a small and hardly persuasive aspect of the defense mitigation exclusive, case. Its if primary, not rele- vance was to the ‘extreme mental or emotional disturbance’ (substantial and impairment’ mitigators.” Brief for Appellee at 24. defense, guilt-phase failed identity/alibi” "mistaken to which intoxi- irrelevant, (e)(3) cation evidence would have press mitiga- been an through tion case evidence of his intoxicated state at the time of the So, too, may general murder. guilt-phase strategy a foregoing
voluntary potential intoxication spawn defense because of its adverse Gibson, judgments, character (collecting see recognizing at 527 cases aggravating defense), voluntary effect of intoxication be abandoned in a penalty-phase necessary. decision that a new course of action is In the judice, Appellant case sub guilt-phase made no enhancement of his proffer penalty-phase. intoxication in the the trial court issued the penalty hearing, At the phase instruction: following pertinent Now, in this case the gentlemen, THE COURT: ladies identifies Sentencing Defendant has set forth and Code I known factors. As described mitigating what are by only proven factors must be you, mitigating earlier for of the evidence. preponderance include the The factors identified the defense mitigating following: that was mitigating alleged Christopher
The factor Johnson the influence of extreme mental or emotional distur- under that A factor separate mitigating bance. second and criminali- capacity Christopher appreciate Johnson require- his conduct conform his conduct to the ty of or to and the substantially ments of law was third impaired, factor which is identified is—consists evidence mitigating the character and record of Chris- mitigation concerning and the circumstances of his offense. topher Johnson ... Defendant has regard, gentlemen, In that ladies and factors would like to consider in they you identified determining whether that circumstance exists. mitigating factors That Mr. Johnson following: Those consist under the influence of alcohol when the accident oc- In ladies regard particular factor, curred. to that applicabil- its gentlemen, determining same standard of *28 trial, I this during guilt phase which described is ity, defining In or not that is applicable. other words whether a consideration. added).
N.T. at 1844^45(emphasis 10/4/12 subsequent side-bar discussions about the During charge, objection raised the to the above instruc- following voluntary tion on intoxication: just we were again,
DEFENSE COUNSEL: We were— on the objecting impact instructions victim evidence we had about before. I thik that was on that talked don’t you the record. And I for because said question you had I it. had it I wasn’t sure understood We quickly alleged as one of our he was under the influence mitigators you say of alcohol and did the same standard as the applied intoxication for first to third legal degree?
THE I did. COURT: Well, object
DEFENSE we would to that. COUNSEL: THE I believe there’s a case on right point COURT: on that.
DEFENSE COUNSEL: There be. may THE Any COURT: comment?
PROSECUTOR: Nope. you,
DEFENSE COUNSEL: That’s it. Thank Judge. THE COURT: All right.
N.T. at 1860-61. objection
This left the trial to speculate court as to which factor defense counsel mitigating objection. referred his counsel, Presuming competency of as we must under Sixth law, Amendment decisional may presume we counsel knew nearly a decade our jurisprudence had held and (e)(3) reaffirmed in the subsection context that guilt penalty phase voluntary standards for intoxication were func- (e)(8) tionally equivalent, whereas the subsection al- inquiry lows a lower standard permitting mitigation all evidence to be Gibson, considered, supra. See It reasonably could therefore objected be inferred that counsel to the application guilt voluntary intoxication standard to the phase jury’s delibera- (e)(8) tions on the offer. It is mitigation just as reasonable under the same presumption competence, of Sixth Amendment however, objection that counsel directed his to the subsection (e)(3) proffer as a constitutional current challenge state seen, of our relevant can jurisprudence. As be one cannot be sure as to which mitigator actually counsel referred.
Indeed, the trial court explicate invited defense counsel to position, his if counsel did so the court could have perhaps objection discerned the laid before specific it and considered on the record whether a modification to the instruction was stands, however, As the record necessary. Appellant declined objection, court’s invitation to leav- clarify ambiguous *29 528 objection indeterminable. for counsel’s the basis
ing precise and specula- on presumptions base our review may As we not ambiguous he offered an meant when what counsel tion about doctrine is court, of the waiver the invocation objection to Pa. 887 Pressley, v. See Commonwealth appropriate. (2005). to the objection (requiring specific a A.2d instruction). jury involving an issue to charge preserve bare assertions Appellant’s were to address Even if we the 1) identifying appropri- jurisprudence worth of a decade’s is in the penalty phase intoxication voluntary ate standard seminal inapposite of an interpretation a flawed upon based (e)(3) 2) as a whole case; mitigator language in a that applicable standard than stringent a less presents 3) defense; at least one of intoxication voluntary guilt-phase (e)(3) i.e., the incapacity component parts, mitigator of the law contem- to the requirements conform one’s conduct from intent that the mental state distinct aspect an of plates cannot, contemplated by guilt be linguistics, as a matter of 4) standard; pre- completely the above instruction phase the effects of considering from jury cluded the (e)(8) deliberations, And we would in its alleged heavy drinking pronouncement as a broad presents assertion as briefed each made, which, extent it is is nonetheless to the though eloquent in the record and support references of of specific devoid of is the analysis. example paucity One lacking developed Appellant’s capacity alcohol’s effect on on argumentation law, requirements his conduct to the conform 9711(e)(3) circumstance. mitigating § second expression Indeed, makes to subsection only reference (e)(3) heavy of his offered evidence “Appellant is proffer mitigating the incident as day of alcohol the consumption 9711(e)(3) (ability appreciate § ... 42 factors under Pa.C.S. for Ap- Brief substantially impaired).” criminal conduct of two parts to the first referring only at 20-21. In pellant (e)(3) made that he Appellant implies mitigator, the subsection that he substan- challenge possessed relevant to a proffer no to the law. to conform his conduct tially impaired capacity brief, however, statutory make the does Later in his *30 construction statement in the abstract that our jurisprudence intoxication equating voluntary applicable standards in each trial phase works the absurd result of a precluding jury from ever finding mitigation through of a im- proof substantially paired capacity to conform one’s Again, conduct to the law. however, nowhere does Appellant indicate where the record (e)(3) he advanced argument on this of the subsection part mitigator jury. to the
Another example
is
claim that
voluntary intoxication standard
applying
the subsection
(e)(3) mitigation case must
stringent
be less
than the standard
applying
guilt-phase
to a
intoxication
voluntary
defense. Oth
er than stating this
as if it were
proposition
self-proving on its
face, Appellant provides
why
no further discussion as to
it is
less difficult to bear the burden of proving by a preponderance
of the evidence that heavy
a
drinking substantially impairs
defendant’s
ability
appreciate the
of his conduct
criminality
or conform his conduct to the
of
requirements
the law than it
is to present enough evidence that drink overwhelmed a
inject
defendant’s faculties so
toas
reasonable doubt as to
defendant’s ability
specific
to form
intent.
jurisprudence
Our
(e)(3)
has interpreted subsection
to come under the guilt phase
decade, and,
intoxication
voluntary
nearly
standard for
un
decisis,
der the
of
doctrine
stare
it was thus incumbent upon
Appellant in
of
seeking
precedent
overhaul
such
to assume
the burden of
developing
comprehensive discussion demon
strating that substantive
between
statutory
differences
(e)(3) mitigator and the guilt phase
capacity by
diminished
intoxication
exist
different
inquiry
warranting
treatment
each.12
advocacy appears
No such
before us.
" 'Any departure
special
from the doctrine of stare decisis demands
203, 212,
2305,
justification.’
Rumsey,
v.
467 U.S.
S.Ct.
Arizona
(1984).
L.Ed.2d 164
We have said also that the burden borne
party advocating
precedent
great-
the abandonment of an established
is
point
statutory
er where the Court is asked to overrule a
construc-
special
tion. Considerations of stare
have
decisis
force
the area of
here,
statutory interpretation,
unlike in the context of constitutional
interpretation,
legislative power
implicated,
Congress
is
re-
mains free to alter what we have done.” Patterson v. McLean Credit
Union,
164, 172-73,
(1989),
491 U.S.
109 S.Ct.
Elsewhere render- result of the indefensible works the two standards (e)(3) nullity, but and a “absurd” statutory mitigator ing the dealt have that our decisions to consider assertion fails this proffer penalty phase in which the defendant’s cases only with As ad- the same. essentially were phase proffer and guilt in cases seem that it would supra, in footnote dressed an intoxi- presents either defendant a penalty-phase where an forego elected to having first for the cation case time— phase his guilt enhances trial —or defense intoxication mur- first-degree jury’s appreciably, defense intoxication finding the it from preclude not logically verdict would der newly (e)(3) the basis satisfied on *31 mitigator subsection Therefore, because simply evidence. presented penalty-phase defense would intoxication rejection guilt-phase of a jury’s a (e)(3) of evi- body on the same mitigation foreclose logically (e)(3) nullity. a mitigator render the does not dence available, logic, matter of 9711(e)(3) as a is still mitigation § or to the quantum who adds defendant penalty phase the at trial. offered previously intoxication evidence quality is a argument from final omission One an eviden he even laid of whether discussion fully developed (e)(3) mitigator him to the subsection entitling tiary foundation Gibson, a capital we reviewed supra, In at all. instruction to the relating appellee’s appeal Relief Act Post Conviction by officer and a killing Philadelphia police conviction a bar. In attempt of robbery a failed during stander court’s order vacat the PCRA reversing unanimous decision on, hearing for a new remanding penalty sentence and ing (e)(3) alia, regarding appellee’s testimony inter PCRA evidentiary record called that the this observed proffer, Court law, whether, appellee matter of as a into question (e)(3) Noting mitigator. an instruction on even entitled to Appellee appreciated question that there was no initially presenta given guilt-phase his criminality conduct— kill—we inquired intent to specific on tion of evidence offered West, Humphries, Inc. v. by CBOCS superseded statute as stated in (2008). 128 S.Ct. 170 L.Ed.2d U.S. into the to which degree the evidence would have demonstrat- ed a substantial impairment in his capacity to conform to the however, law. this point, On the evidence was we lacking, reasoned, as defendant’s own experts found insufficient evi- dence that defendant was intoxicated on the critical moment. Gibson at 529.
As to the sufficiency of Appellant’s proffer this respect, we only relevant, find one passage his brief where he offers in his “Statement of the Case” that on “Appellant put expert evidence toxicological regarding impairment, N.T. p. 937[,]” which, noted, it should be directs the reader to an irrelevant portion testimony some 50 pages removed from the beginning of the toxicologist’s testimony. noWith account of, about, or developed discussion the toxicologist’s findings and the significance thereof in argument section of his brief, we find a second upon basis which Appellant failed to preserve this issue for our review. event,
In any our own review of testimony offered Appellant’s toxicologist shows it to have been equivocal best on the effects alcohol had on Appellant’s powers of judgment and intent formation as the expert was confronted with exam- ples of Appellant’s specific actions and statements with respect to, to the time leading up and after including, he shot Officer Grove. There was BAC, some indication that at a .22 which represented the absolute highest number in hypothetical *32 range BAC of .15 to .22 percent at the time of the shooting evidence, rendered from the one could suffer impairment judgment effect, and undergo a disinhibitory but no further elaboration was made on that point. The also toxicologist opined that Appellant’s ability to the perform distracted tasks involved in aiming a to look spotlight for deer while driving, accurately shots, shooting a deer with two driving away evade detection of his illegal conduct with the intention of later to returning retrieve the deer higher reflected levels of function, cognitive which militated toward lower inferring degrees impairment to his cognitive abilities. This equivo- cation manifested itself at the conclusion of the toxicologist’s testimony, where the most he could state to a reasonable that, hypotheti- even at the certainty was of medical
degree “an individual BAC, happen” “it could cal’s end .22 top intent to specific to form the needed could lose his faculties case. to this kill,” opinion applies that such N.T. at immediately posed by follow-up question N.T. at 1047. To the from the can infer to whether one the Commonwealth in poaching by Appellant overcome circumstances challenging specific the encounter —a police minutes before just a deer— deer, N.T. at “yes.” answers toxicologist kill the the intent to lay failed to equivocal opinion qualified 1047-48. Such (e)(3) mitigation instruction. for an evidentiary an foundation Penalty in Comparative Remark Worth IV. Opening Phase Statement error with the court’s reversible charges next prosecutor’s penal- in to the response mistrial grant refusal jury the to consider wheth- inviting remarks ty opening phase the concerning to hear evidence it was about mitigation er the Specifically, life of the victim. Appellant outweighs life of as follows: remark went the controversial sentencing conclusion of this will be asked at You in and the mitigation presented to look at the facts hearing to the testi- listening When aggravation. in presented facts Defendant, question the one the life of mony concerning hearing when all the to think about you I would like any is does of that sentencing hearing testimony life of Officer Grove? outweigh evidence objected and moved for Defense counsel N.T. at 1407. trial which the during discussion ensued mistrial. Side-bar to the jury removed necessary it to have court found motion, counsel’s denying After defense room. deliberation return and then issued jury’s called for the the court curative instruction: following matter, gentle- ladies and Your oath this
THE COURT: consideration of men, impartial to a fair and you commits allows your oath determine the facts. Once the evidence to facts, required apply are then you those you to determine an and then reach give you which I to those facts the law *33 appropriate sentences based the facts as upon you you alone determine and the law to given you by court. Ladies and I will gentlemen, you again remind once that the have aggravating circumstances which been identified are the aggravating circumstances which the is Commonwealth alleging. They must be proven by proof beyond reason- able doubt. The defense has mitigating identified circum- stances. again, mitigating Once those are circumstances which proven by must be of the evidence. preponderance jurors Your obligation proceeds when this matter to and I will sentencing, give you more detailed instructions at conclusion, is to weigh aggravating those circumstances against mitigating circumstances.
You may only take into account in that balancing process the aggravating you circumstances which were proven proof beyond a reasonable doubt and the evi- mitigating dence, if any, which was proven you by preponderance of the evidence. It is not a consideration proper weigh the value of one life against you may another life and not do so. That would be a your violation of oath.
N.T. at 1410-11. 10/2/12
Appellant acknowledges the under the law that presumption juries instructions, follow court-issued but that “words argues recalled[,]” once can never be spoke particularly jury where a engage is asked to in the but “legally improper all-too-human tendency to one life compare against another.” Brief for at 29. No one question may encompass the entire contends, death penalty process, Appellant citing extra-juris- caselaw,13 dictional many and an invitation to distill the consid- jury erations a must make into the single question “whose life has injecting more value” runs the risk of bias and caprice into the sentencing decision.
The deprived statement him of a fair trial despite instruction, continues, issuance of a curative because the statement neither comment represented fair on the evi- flair, was, instead, dence nor appropriate oratorical but “a State, (Mo. 1995). Storey v. 901 S.W.2d *34 mitigation before jury, the to focus attempt non-impassioned consid- highly prejudicial and on an begun, improper had even of Officer the life outweigh evidence any eration: ‘Does ” the “captain That it was at 30. Brief Grove?’ to only adds the statement team” who made prosecution of the the that possibility creates the reasonable misconduct instead passions inflamed jury’s product the verdict was reason, concludes. the bounds within its statement places The Commonwealth to jury the convincing oratory directed permissible imposing in evidence favor mitigation defense’s the disfavor end, asserts the Commonwealth To that of death. a sentence a relief place sharp to intended primarily the remark was the to whether to make as would have jury the decision cir- undisputed aggravating the outweighed mitigation proffer 9711(d)(1) of an officer killing for the at Section cumstance as if these words duties. Even of his during performance the briefly were too innocuous improper, they uttered were the objectively weighing from jury the prevent stated Finally, any possible evidence, continues. Commonwealth it court when by the trial was cured taint from the statement in- a curative objection and delivered defense sustained the struction. aof assessing the denial standard of
Our review is follows: mistrial to assess the effect in the position
The court is best trial such, and as jury, on statement allegedly prejudicial an will not overturned of a mistrial be or denial grant be may granted A mistrial of discretion. absent an abuse is of the motion is based which upon the incident only where deprive effect is its such a nature unavoidable weigh- from by preventing jury of a fair trial defendant Likewise, mistrial is not a a true verdict. rendering ing adequate instructions are cautionary where necessary any possible prejudice. overcome 997, 659, 692, 1016 Pa. 933 A.2d v. 593 Rega, Commonwealth omitted). (citation (2007)
535 that, “It during penalty phase, is well-settled longer applies, where the of innocence no presumption may properly is afforded reasonable latitude and prosecutor comment on the evidence with oratorical flair.” Common (2003) Freeman, 532, 385, wealth v. 573 Pa. 827 A.2d 408 cases). (collecting by prosecutor do not consti “[C]omments tute reversible error unless their unavoidable effect was to in their minds a fixed bias and prejudice jury, forming toward the defendant such that could not hostility they weigh objectively the evidence and render a true determina penalty Johnson, 384, 97, tion.” Commonwealth v. 542 Pa. 668 A.2d (1995), denied, cert. 519 U.S. S.Ct. *35 (1996). L.Ed.2d 46
The above shows that the asked the excerpt prosecutor jury any to ask itself whether evidence Appellant’s mitigation outweighed the life of The trial court’s inter- Officer Grove. of this pretation request jurors assign was that it asked to a to the weight respective lives of and Officer Grove This, then and decide whose life was worth more. the trial found, court impermissible required was an immediate insistence, curative The instruction. Commonwealth’s on the hand, other is that the to prosecutor attempting focus jurors on eventual obligation weigh mitigation their the 9711(d)(1) evidence the circum- against aggravating Section having during stance of killed an officer of his performance duties. The that the transcript prosecutor shows did immedi- offer ately position response objection, this to the wherein he stated aggravator, is law enforcement officer is the “[h]e of a law enforcement officer in the line killing duty. That’s what it means. That’s what was said.” N.T. 1408. therefore,
The issue as
is
presented,
prosecuto-
whether the
rial comment was both
and so
that it
improper
prejudicial
rendered trial
unfair.
fundamentally
Initially, while we do not
reject
juror
out-of-hand the
that a
have under-
possibility
may
(d)(1)
stood the
remark as a reference to the
prosecutor’s
infra,
see
of the statement re-
aggravator,
plain reading
that we subordinate this
to the
quires
possibility
court’s
i.e.,
interpretation,
that the
invited the
prosecutor improperly
against
life” of
Grove
“the
Officer
jury
weigh
of his life.
presentation
mitigation
along
evidence
impact
to consider victim
Prosecutorial calls
come
increasingly
have
mitigation evidence
side a defendant’s
deci
Supreme Court
the United States
following
into practice
2597, 115
Tennessee,
808, 111
S.Ct.
v.
U.S.
Payne
sion
constitutionality
(1991),
recognized
which
L.Ed.2d
reconsidered
Payne,
In
Court
victim
statements.14
impact
victim impact
admission of
holdings prohibiting
prior
817-27, 111
Id. at
S.Ct.
in criminal trials.
evidence
496, 107
482 U.S.
S.Ct.
Maryland,
both Booth v.
Overruling
(1987)
Amendment
(discerning Eighth
537 the admission of evidence and victim-impact prosecutorial subject, on that the Amendment erects no argument Eighth se bar.” Id. at 827, 111 2597. per S.Ct. Payne recognized
The
limit
only
constitution-sourced
re
garding
constitutionally
the otherwise
valid use of victim-
evidence was in the Fourteenth
Due
impact
Amendment’s
Process
the event that
“[i]n
Clause:
evidence is introduced
unduly prejudicial
that
is so
that
it renders the trial funda
unfair,
mentally
the Due Process Clause of the Fourteenth
relief.” Id. at
825,
Amendment
111
provides mechanism
Payne
S.Ct. 2597. While
no
delineation
provided
explicit
between fair
unduly prejudicial
in this re
commentary
it did observe that there was “no
victim-
gard,
reason” to treat
impact
“differently
evidence
than other relevant evidenced”
and cited Darden v.
477
168,
2464,
Wanwright,
106
U.S.
S.Ct.
(1986)
Darden
prosecutor’s
addressed whether a
extreme and un-
questionably improper comments made
during
guilt phase
of a
trial
capital murder
were so unfair as to render
defendant’s conviction a
of due process.
denial
“It
is not
enough
prosecutors’
remarks were undesirable or
universally
even
condemned. The relevant
is
question wheth-
er the prosecutors’ comments “so infected the trial with
unfairness as to make the
conviction a denial of due
resulting
Darden,
(quoting Donnelly
v.
181,
process.”
at
Applying process,” [standard review] due Id, the Court first considered the nature and extent of the improper argument argument and determined “did not evidence, or misstate it manipulate implicate nor did other specific rights right of the accused such as the to counsel or Id. 181-82, right to remain silent.” S.Ct. analysis Other factors due influencing process Court’s *37 included: much of the argument responsive open- to the (a meant to excuse the point defense not by the
ing summation ascertain the better help but to argument of the impropriety context); the issuance of init by placing the effect of comment must be based on decision jury’s that the instructions curative were not evi- of counsel arguments and that evidence alone defendant was the dence; against of the evidence weight the argu- rebuttal “very effective[ ]” counsel’s heavy; and defense argument closing prosecutors’ of the “turning ment much to likely more in a that was light by placing [it] them against passions in inflamed than result disapproval strong engender reasons, conclud- the Court Id. For these petitioner.” against are —but nei- perfect “was not trial ed the defendant’s —few 183, 106 Id. at S.Ct. fundamentally unfair.” was it ther omitted). (citation district court decision to federal therefore, that the is evident it Payne, in As referenced process to a due applies approach Darden and DeChristoforo victim-impact relating to comment challenge prosecutorial extension, pros- the logical As a characteristics evidence. and the defendant’s jury to consider asking practice ecutorial character- personal light impact evidence mitigation under appropriate likewise victim’s life is evidence of the istic is nothing “there and its declaration that Payne the aegis [i.e., that harm to bear in mind jury the allowing unfair about at the life] same by the loss victim’s that harm caused evidence introduced the mitigating time as it considers added). As for the (emphasis at 826 Payne defendant.” exercise, the in this deliberative engaging result practical of victim light evidence mitigation very weighing act of by the Court’s is evidence endorsed impact/characteristics “at the both same may fairly consider jury that a opinion aggrava- given deciding ultimately weight time” when factors, respectively. ting mitigating however, question arises judice, In sub the case jury to consider call for prosecutor’s explicit whether life” “the outweighed evidence mitigation whether as analysis, under the above Grove comes of Officer merely jury goes beyond asking statement made mitigation evidence victim impact/characteristics consider *38 prosecu- evidence The concern that the together. emerges cause the to argument jury tor’s as articulated would instead in weighing against believe it was tasked with one life another an neither the facts of the arbitrary procedure reflecting —one they case nor in the law swore to in delibera- expressed apply it should death if it finds whereby impose simply tions — In Appellant’s life is worth less than Officer this Grove’s. therefore, fell outside the respect, prosecutorial comment Payne realm of and was paradigm plainly inappropriate. view, however,
In our
totality
circumstances
the comment
it from
surrounding
prevented
prejudicing
at
extent
jury. Looking
opening
and nature of the
comment,
brief,
we see it was a
truncated remark
indeed
not
in
emotionally inflammatory
couched
an otherwise
recall
plea
ing graphic details of the crime or
in
describing Appellant
terms, and the
derogatory
sustaining
court’s
of the defense
objection
the comment
stopped
including
short of
an overt
on
discussion
the relative worth of each life.15 Also
going
the nature of the remark
potential
prejudice
and its
is the
Ozmint,
(4th Cir.2005),
Compare Humphries
v.
reasonable, decidedly possibility lesser albeit to focus request it as a have understood juror that a could weighed mitigating proffer how the attention on particular 9711(d)(1) factor aggravating the enumerated against in the line of officer the life of a uniformed took above, this possibility subordinate as noted we duty. Though, have per- would jury likelihood that greater to the far and we argument, worth comparative the remark as a ceived secondary aspect this otherwise overstate are cautious not to served as remark, find this possibility we nevertheless under the facts. feature tempering an additional *39 however, instrumental, arresting any poten in Most was the trial court’s to the comment tial attendant prejudice detailed, issuing in response and unequivocal swift jury that it reminding instruction curative comprehensive the comparative its sentence on basing from prohibited lives, and that respective of the victim’s and defendant’s worth instead, on the evidence must, decision sentencing it make its on law.16 applicable with instructions alone and in accordance trial with day penalty replete a two and one-half Finally, controversial remark fol unrelated to the wholly evidence several lowed, with a verdict that denied jury and the returned the subsec granted circumstances and aggravating requested (e)(8) circumstances, dispelling further mitigating tion verdict on jury rendering passions notion of an inflamed record, these circumstances rather than reason. Given therefore, prose claim that unavailing Appellant’s we And trial fundamen penalty remark rendered his opening cutor’s unfair. tally Testimony Relating Appellant’s Precluding
V.
Witness
Purported
of Remorse
Statements
it
court erred when
next asserts that
the lower
Appellant
family relating
from friends and
testimony
proffer
ruled
not
for admission
qualify
of remorse did
his recent statements
instances,
jury
presumes that the
will follow
the law
In most
659,
Rega,
v.
593 Pa.
the court. Commonwealth
instructions of
(2007).
A.2d
803(1)
803(3) (then
as Pa.R.E.
(present
impression)
sense
or
mental, emotional,
condition)
existing
or physical
exceptions
the Rule against Hearsay.
the trial court
Specifically,
permit-
ted the
testify
witnesses to
as to their observations Appel-
lant during their
with him
meetings
but not to the particular
statements he
statements,
made. N.T. at 1490.
Barring
contends,
violated his
not
rights
only under the
themselves,
rules of evidence
but also under the 8th
14th
Amendments’
evidence,
mandate that reliable mitigation
re-
rules,
gardless of state
be
evidentiary
admitted as articulated
284, 300-01,
Chambers v. Mississippi, 410 U.S.
93 S.Ct.
(1973).
[Defense Your just Counsel]: chambers we had a discussion evidence that regarding we wanted to present. We have represented to the that Court we have multiple witness, witnesses including the current Efim Topper; her husband, cousin, Roger Topper; the Defendant’s Linda sister, Johnson; Yates: and Brandy among others who testify would that he has proclaimed to them on multiple occasions his regret remorse and his for what happened. 803(1), We’re to admit asking Court that under Rule which would be present 803(3), sense or impression under which would be then emotional condition. existing We think are admissible—those statements would be admissible un- der those exceptions hearsay rule.
542 Honor, to that objecting we’re because Your
[Prosecutor]: reasons, don’t think of it’s and we hearsay for a number but circumstances. to state mind in this under these it of goes objection All The will be sustained. right. THE COURT: objec- have describe permitted The defense is witnesses However, they may not of the Defendant. tive observations them, by made him to is testify as statements not meet and it not admissible and does hearsay, is exceptions by outlined defense. at
N.T. 1489-90. 6/18/12 evidence, admissibility including on the Rulings trial, capital of a are proffered penalty phase evidence at the judge, rulings trial and such will the discretion of the within abuse of no basis relief absent an discretion. appellate form 530, (2002). Reid, 1, 550 v. 571 Pa. 811 A.2d Commonwealth 2, 811, 645 A.2d Ragan, v. 538 Pa. also Commonwealth See (1994) (noting hearsay, state the determination whether 818 is within the sound discre of mind statements are admissible an only upon of the trial court and will be reversed abuse tion discretion). of that may present capital penalty hearing
A defendant at 9711(a)(2); § 42 mitigation. evidence in Pa.C.S. relevant (2005). 640, 750, v. Pa. A.2d 765 May, 584 887 Commonwealth any if it mitigation probative Evidence is relevant to is forth in 42 Pa. the enumerated circumstances set mitigating 9711(e). Id. governing § broad standard what C.S. “Given evidence, mitigation as we have no doubt that a qualifies testimonial of remorse at the expression penalty defendant’s May, could be deemed relevant to character.” phase statement, Hearsay by is other than one made “a hearing, while at the trial offered in testifying declarant or prove evidence to the truth of the matter asserted.” Pa.R.E. McCrae, 801(c); 832 A.2d Commonwealth v. Pa. (2003). that, Rule is not admissi provides “[h]earsay Evidence], provided these rules Rules of except [the ble *41 Court, Pennsylvania or prescribed by Supreme other rules Id. at 1034. statute.” we are not informed what by Although statements, exactly, the witnesses would have attrib- proffered uted to we think it infer Appellant, reasonable to from the counsel’s motion to the court and Appellant’s own testimonial expression of remorse at trial the statements penalty remorse, represented expressions direct in the nature of such, sorry “I’m for what As happened.” Appellant’s alleged statements were relevant to mitigation, but were also offered their they truth —indeed were relevant if used for only that purpose clearly thus would have constituted hear- —and say.
On whether the statements were nonetheless admissi ble, the above from the excerpt penalty hearing shows defense counsel summarily offered that admission was under required state of exceptions mind to the rule against hearsay as articu 803(1) (3).17 court, however, lated in Pa.R.E. rejected The as proffer failing to meet exceptions, defense counsel discussed the matter no further. Counsel now con tends that the court erred state precluding Appellant’s ments of remorse through family friends and because the statements were both relevant to the critical mitiga- issue of 803, Exceptions Against Hearsay-Regardless 17. Rule to the Rule Witness, provides Whether the pertinent Declarant Is Available as a part: following by against The hearsay, regardless are not excluded the rule of whether the declarant is available as a witness: (1) Impression. describing explaining Present Sense A statement or condition, immediately an event or made while or after the declarant 803(1). perceived it. Comment: This rule is identical to F.R.E. exception apply, For this declarant need not be excited or other- emotionally perceived. wise affected the event or condition The timing. require- trustworthiness of the statement arises from its The contemporaneousness, contemporaneousness, ment of or near re- premeditated prevarication memory. duces the chance of or loss of (3) Mental, Emotional, Then-Existing Physical or Condition. A (such then-existing statement of the declarant’s state of mind motive, emotional, plan) sensory, physical intent or or or condition (such health), feeling, pain, bodily including as mental or but not memory prove statement of or belief to the fact or remembered validity believed unless it relates to the or terms of the declarant’s will. 803(1) (3). Pa.R.E. *42 they trustworthy, given of trial and phase in the penalty
tion
(2)
interest,
(1)
made
spontaneously
against
were
statements
(3)
testimo-
by
penalty-phase
his own
to
corroborated
family,
(4)
disagree,
We
subject to cross-examination.
ny, and
sufficiently as to the trustwor-
to
the court
edify
counsel failed
testimony.
component
proffered
thiness
categorical acceptance
has denied
Apposite jurisprudence
defendant’s statement
as to an out-of-court
hearsay testimony
of trust-
remorse,
an additional measure
requiring instead
from the
springs
temporal
that which
beyond
worthiness
emotion on
and the remorseful
of the statement
coordination
the
defendant
supra,
capital
In May,
which it remarks.
two
testimony
the
of his victim’s
mitigation
to admit as
sought
have testified that defendant
who would
daughters,
adult
their face-to-face
during
and
remorse
apologized
expressed
daughters,
in
letter. The
three-page
with them and
meeting
willing
were
penalty,
were
to the death
opposed
who
of re-
expressions
testify regarding Appellant’s
available to
morse,
hearsay proffer
ruled the
inadmissi-
but the trial court
assurances that cross-examination
ble without the additional
ruling, reasoning:
the
bring.
upheld
the
would
We
defendant
very
is
similar to
judice
[Commonwealth
The case sub
(1993)
the
May, A.2d 765-66. Unlike the defendants in May Young, Appellant eventu- ally testified regarding his remorse and would thus have been *43 available for cross-examination as to his earlier statements made allegedly proffered fact, to the witnesses. This howev- er, fails to take the case sub judice outside the ambit of May for, Young, the time defense counsel offered the hearsay in testimony question, counsel made no indication to the court that Appellant would later let alone testify, that he would testify cases, as to his remorse. In penalty death our standard of review is to review the court’s evidentiary ruling at the time it was made for an abuse of discretion or error of Reid, supra. With the record law. neither an revealing indication by counsel that Appellant might testify, request for a did, conditional in the ruling event he nor a resubmission of the motion when would, fact, it became certain that in he we testify, detect no abuse of discretion or error of law in an evidentiary ruling consistently made with the controlling prec- edent of May that such statements of remorse, unaccompanied trustworthiness, additional measures of fail gain admis- sion under our evidentiary rules to state of pertaining mind exceptions to the rule against hearsay.
An alternate basis on which to the support court’s refusal to admit the hearsay as a state-of-mind exception derives from a capital defendant’s motive to affect in remorse out-of-court conversations with potential character witnesses who then may relay ostensibly his sympathetic statements to the penalty jury. “When the declarant’s out-of-court state are made ain mind, ments demonstrate his state of natural manner, relevant, and are material and are they admissible Begley, Commonwealth v. pursuant exception.” 566 Pa. 546 (2001) v. 605, Commonwealth
239, (quoting A.2d 623-24 780 (1978)) 520, 234, 222, (emphasis Pa. 386 A.2d Riggins, v. added). Lowenberg, also 481 Pa. See Commonwealth (1978) (“In necessity addition to the 392 A.2d of this type the admission exception, state [the mind] justified which these evidence is because circumstances that accurately were indicate reflected they utterances made that there was state of mind at time and an the declarant’s deceive.”) of a motive to absence when A has motive to deceive de capital defendant statement, credible, remorse, may as the if deemed claring This dan mitigating punishment. his self-interest advance that surreptitious self-serving may accompany ger that thus removes it from class capital defendant’s statement reliability showing whose flows from a context of statements preclude made. This is not to naturally the statement may sincerely express that re capital defendants possibility conversations; it, instead, extra-judicial to others in morse acknowledges bearing upon that simply great pressures make statements potentially mitigating defendant capital are both conclusion that such statements not warrant 803(1) (3) “naturally made” for of Pa.R.E. purposes testify the defendant on corresponding requirement *44 his a then jury may the issue of remorse before assess —who with the of cross-examina sincerity person his benefit hearsay of prerequisite possible tion —as a to admission state ments of his remorse. Appel
Even if the trial court had ascertained that fact, would, in as to his circumstance testify lant remorse —a alleged by appearing neither nor of record —such Appellant that hearsay testimony that exclusion of witnesses’ to same error, the constituted we would nevertheless deem error effect in one of may harmless. Harmless error be established three (1) or the error did not the defendant the ways: prejudice minimis; (2) de only erroneously the admitted prejudice evidence; properly evidence was cumulative of other admitted (3) insignificant by the effect of the error is so prejudicial or beyond to the evidence that it is clear other comparison that the error could not have contributed to reasonable doubt jury’s regarding penalty. decision the death Common- (2004) (internal Smith, wealth v. 580 Pa. 861 A.2d omitted). quotation citation and marks Here, Appellant personally expressed his remorse when he apologized family to the from the witness stand. This Grove clearest, was the most expression direct remorse available gave jury as it to assess the opportunity sincerity Moreover, Appellant’s jury testimony statement. heard from two faith ministers that as Appellant presented witnesses Specifically, pastor his character. Prison Ronald Cordell testified that was a exem- Appellant consistently devout and plary prison student at his bible lessons who desired instruc- tion and conversation on forming relationship with God and repentance. N.T. at 1527-28. Pastor Robert Herr also testi- fied that a level and of reli- displayed complexity gious consistent with searching genuine legiti- reflection and a mate an attempt gain understanding teaching of biblical that made sense to him. N.T. at 1534-35. Herr testified as to conversions,” so-called personal experience “prison with wherein inmates feign spiritual insight newfound about their prior criminal lives for the sole favorable purpose obtaining results in but Herr differentiated pending legal proceedings, Appellant’s approach participation to and the faith exercises he administered from the that charla- typically practiced by tans. N.T. at 1535. Appellant’s
How these three accounts of remorse- allegedly ful, reflective, repentant provided materially state of mind subject different or inferior compared evidence on proffer, Appellant explain excluded does not and we do not perceive. any attending We therefore deem harmless error testimony the exclusion of cumulative as to Appellant’s alleged remorse. Quash Denial
VI. Motion to Aggravating Killed Factor Perpetration Felony in the of a
While *45 next contends that the lower court erred in Appellant his motion to he denying quash aggravating factor that 548 42 felony” under Pa.C.S. “in of perpetration
killed while
9711(d)(6)
was for
felony conviction
underlying
§
when his
that the
“The
felonies
only
a Firearm.
Persons not to Possess
circumstances,” Appellant
aggravating
intended as
legislature
robbery,
deviate
rape,
serious felonies of
“are the six
argues,
force, arson, burglary,
threat of
by
intercourse
force or
sexual
definition
in the Crime Code’s
enumerated
kidnapping[ ]”
2502(d).18
§
Brief
at 18 Pa.C.S.
felony”
of a
“perpetration
of
rejected the identical
This Court has
for
Walker,
80,
540 Pa.
656 A.2d
in
v.
claim both Commonwealth
(1995)
felony convic-
may
underlying
consider
(holding jury
90
Sentencing
felony
purposes
criminal
as
trespass
tion of
9711(d)(6)
v. Robin-
and Commonwealth
aggravator)
§
Code’s
(2005)
son,
358,
“felony” for
(holding
Indeed, our decision Robin- acknowledges, as Appellant a jury forth in Walker that jurisprudence reaffirmed set son circum- felony” aggravating of a may perpetration find an “in stance, expressly are purpose that “felonies” for such § et seq. at 18 Pa.C.S. 101 We defined the Crimes Code attempt distinguish reject went on to the defendant’s through incorporation legislative from argument Walker’s which, maintained, how our Legislature’s he revealed history, statute to accommodate penalty severance of the former death in the United States requirements espoused constitutional Georgia, v. 408 U.S. Court decision Furman Supreme (1972), into and reformation 33 L.Ed.2d S.Ct. (murder statute) and Crime Code’s Section present-day 2502(d) felony” act of "perpetration "[t]he of a 18. Section defines being accomplice in the commission engaging in or an the defendant in of, commit, committing, attempting flight attempt or after or or an by force or threat robbery, rape, or deviate sexual intercourse commit arson, force, burglary kidnapping." or
549 (death statute) Sentencing Code’s Section 9711 penalty inad- vertently importing omitted into Section 9711 the definitional Robinson, section of a necessary component. Section as 877 at 446. Assembly Our General amended 42 Pa.C.S. § 9711 “on no less than five occasions” since our decision in Walker, noted, we and in no amendment did it alter the pertinent So, held, law as interpreted by this Court. Id. we applicable presumption statutory well-settled con- struction that interpretation our was in accordance with legis- 1922(4); lative (citing § intent. Id. 1 Pa.C.S. Fonner v. Shandon, Inc., (1999)). 903, 555 Pa. 724 A.2d dissent,
A vigorous authored by Saylor, Justice noted that the appellant provided had an extensive legislative history of Sections 9711 and together with a well-developed argu- 9711(d)(6) in ment support limiting the Section aggravator to the six enumerated felonies of Section 2502. A probing and severance, comprehensive analysis of the original subsequent scheme, amendments to the capital sentencing and the resul- followed, tant incarnations and iterations of each Section with 2502(d) ultimately dissent that opining Section avoids ambiguity “gains full when read in meaning only conjunc- Robinson, tion with the death penalty statute.” at 457. Con- in joining the statutes such a as to way qualify- limit felonies ing as an in aggravator sentencing, Saylor Justice opined, aligns perfectly with the United Supreme States Court’s man- defined, date that carefully narrowing criteria apply justices threshold to death eligibility. joined Id. Two Justice in Saylor dissent. Robinson, therefore,
In rejected this Court zealous advoca- cy and robust dissent very on the same issue and argument that is now raised herein. concedes when as much Robinson, he states “[i]n the defendant’s were arguments substantially the same as in the ones this brief....” Brief for Appellant at 42.19 We agree, and therefore deem Robinson Indeed, though Appellant points aspect an additional of Section support legislative history argument, 2502 in point of his this is no transformative, way challenge as the nature of his still mirrors the legislative histoiy-based challenge Majority in Robinson dis- reiterations given Appellant’s particularly
binding precedent, made in that case. unavailing arguments of the defendant’s an accordance Furthermore, inferred in Robinson just as we interpretations prior intent and our legislative between law to alter the failure Assembly’s from the General law in our review infer accordance continue to so we subsequently, has left Assembly where the General judice, sub of the case fully-developed following nine years the law unaltered we Accordingly, received Robinson. the issue treatment claim as meritless. this dismiss *47 Impact Evidence Admission Victim VII. reversible committed the court next contends Appellant impact the use of victim jury the on when it instructed error to use jury the evidence, allowed language as the court’s Appellant non-statutory aggravator. a super as impact victim the Common- seeking preclude motion filed a pre-hearing court The lower evidence. offering impact from victim wealth impact victim motion, jury the considered the denied and Fourteenth Eighth of Appellant’s in violation evidence argues. rights, Appellant Amendment that is the proposition claim Central erro- Payne, supra, Court decision Supreme United States held that decisions of Court prior overturned neously that on evidence solely must based be capital punishment of the offense about the nature jury to inform the tends Gathers, Booth, supra, the defendant. See character of however, elsewhere, is argue that his case patched. Appellant does a non- it involved factually distinguishable from Robinson because and a violent felonies felony, involved two whereas Robinson violent speculates the violent nature of Appellant that one. thus non-violent convince the "may have been sufficient to in Robinson the two felonies death, punishment a crime warranted that Robinson’s overall [C]ourt felony aggravating circum- perpetration and therefore that by narrowing required serving function in his case stance Appellant at jurisprudence]. Brief for Supreme States Court [United theory, we confined our this Nothing in Robinson substantiates “felony” as statutory of a question regarding the source opinion to the felony” aggravating circum- "perpetration of a in the that term is used Crimes comes from the applicable definition and determined stance felony in this Commonwealth “What constitutes Code at section 101: etseq." § 101 Code at 18 Pa.C.S. in the Crimes is defined swpra. Quoting liberally Payne, from the dissent in argues that victim statements serve no other impact purpose jurors. than to to the or emotions of the appeal sympathies 856-57, Payne, U.S. S.Ct. 2597 (dissenting opinion JJ.). Blackmun, of Stevens and The testimony of Officer family Grove’s offered no to either insight the nature of the offense or the character of and was therefore irrele- vant, relevant, he maintains. Even if he offers in the alterna- tive, the victim impact statements were more “overwhelmingly prejudicial probative than and should not have been admitted.” Brief for Appellant at 45. however,
Appellant candidly acknowledges,
that our
Court has
the statutory
held
at 42
authority
Pa.C.S.A.
9711(c)(2)
§
jury
instruct a
that
it may consider victim
impact evidence violates neither state or federal due process
nor prohibitions against cruel and unusual punishment. See
Means,
Commonwealth v.
(2001).
565 Pa.
The Commonwealth dismisses this claim as meritless be- cause this Court has not approved only the use of victim statements impact but also the same substantially instruction Means, judice. the case sub that the court supra. See used jury penalty phase of review for Our standard reviewing us in a guides that which is the same as instructions jury to a reviewing challenge In a jury charge. guilt phase considered, merely dis instruction, is not charge the entire Pa. Eichinger, v. portions crete thereof. Commonwealth (2007). its trial court is free to use The 915 A.2d clearly are concepts at issue long as expressions own It is the jury. policy to the Id. accurately presented and discretion trial courts latitude and give this our Court Id. instructions. phrasing following regard instructions gave
The trial court testimony: ing victim-impact
However, circumstance you aggravating if find at least one circumstance, then you may mitigating and at least one evidence when decid- family impact the victim and consider circumstance or circum- or not the ing aggravating whether circumstance or circum- mitigating stances outweigh stances. victim state- family impact
Each of you may give it Your consid- you ments whatever think deserves. weight however, evidence, must be limited to a eration of this of the Defendant and culpability rational into the inquiry which was response not an to the evidence may be emotional presented.
N.T. at 1848-49. 10/4/12 challenge the trial court that agree
We with instruction, aptly accepted which covered against above statements, has impact consideration of victim jury’s law on exclusively relies on have positions no merit. extensively by been considered both United States relegated dissenting Pennsylvania Supreme Courts identify growing trend status. Nor does opinion jurisprudence from such to war- departing of decisional law *49 reject this We therefore precedent. rant reconsideration of claim.
553
Request
VIII. Denied
for a Residual Doubt Instruction
next
reversible error with the trial
Appellant
charges
court’s refusal to instruct the
jury during
penalty phase
that residual doubt could be considered as a
factor.
mitigating
that no
Appellant acknowledges
request
such
for the instruc
record,
instead,
denied,
tion
but was
in
appears
made and
chambers, as confirmed
in
trial court
its Pa.R.A.P.
1925(a) opinion. Appellant also
decisions of
acknowledges
both the Supreme Court of the United
and this
States
Court
a
denying
constitutional
in a
an
right
capital defendant “to
instruction
telling jury
question
revisit the
of his
as a
guilt
164,
basis for mitigation.”
Lynaugh,
Franklin v.
487 U.S.
173, 108
2320, 101
(1988).
S.Ct.
L.Ed.2d 155
Accord Common
Fletcher,
266,
(2000).
261,
wealth v.
561 Pa.
750 A.2d
277
A shift towards the introduction of residual
doubt and
instruction, however,
occurred,
subsequent jury
has
says. Citing a 2001 federal district court decision from Louisi-
ana20
such evidence
an
holding
instruction are entitle-
§
ments under the statutory construction of 18 U.S.C.
3592
list,
because it allows for a non-exclusive
Appellant draws the
9711(e)(8)
analogy
similarly
open-ended Section
“catch-all” mitigator
argument
likewise entitles a defendant to
Moreover,
and instruction on residual doubt.
cites
Meadows,
to Commonwealth v.
567 Pa.
312
A.2d
(2001) as an instance in which
recognized
this Court
residual doubt
in
argument
strategy
as a reasonable trial
arguing against
penalty.
the death
id. at 321 (holding
See
counsel’s
on
emphasis
lingering
jurors may
or residual doubt
have had about defendant’s guilt
penalty
was reasonable
hear-
ing strategy
grounds
case where
existed for counsel’s belief
poor
that defendant was
witness and other witnesses were
later,
lacking).
year
One
this
in a
appeal
Court
PCRA
held
defendant’s counsel could not be deemed ineffective for pre-
senting a residual doubt
v.
argument. See Commonwealth
(2002).
Fisher,
572 Pa.
554 for Appel- factor.” Brief mitigating an appropriate is
doubt p. lant at is this claim retorts, initially, that
The Commonwealth for the request place failure to Appellant’s for waived 611 Spell, v. on the record. See Commonwealth instruction (2011) 1274, waiver where 584, (imposing 28 A.3d Pa. in lower of issue ensure that discussions failed to defendant record). event, In any in the preserved court were jurispru- controlling that alternatively argues Commonwealth assertion, is no “there held, contrary Appellant’s dence has be per- murderer that a convicted requirement constitutional mitigating as a concerning guilt residual doubt argue mitted to su- Means, (discussing Lynaugh, at 158-59 supra factor.” marked of this Court pronouncement A more recent pra). entitlements residual doubt recognizing trend toward not a to such evidence but, instead, right a against a reaffirmation See Common- and instruction. argumentation, presentation, (2004) 883, Edmiston, 284, 851 A.2d v. 578 Pa. wealth circumstance (“Residual statutory mitigating a doubt is not irrelevance, it is not clear and, noted, statutory its given this sort present have been permitted should appellant all.”). Finally, the Commonwealth evidence/argument residual presentation did not limit notes that the court it. evidence, present not to it was election doubt jury for a instruc request denial of a A trial court’s abuse of if there was an appeal only on tion is disturbed Galvin, 603 v. an error of law. Commonwealth or discretion (2009). no such discern 798-799 We Pa. 985 A.2d here, with as it was consistent the court’s denial infirmity with a jury no recognizing right the topic law on prevailing doubt, Ap non-statutory mitigator. a on residual instruction a trend decisional heralds argument purportedly pellant’s deci but several rights, of such recognition toward the law counsel claims that assailed rejecting ineffective sions does not a theory mitigation residual doubt-based advancing were, instead, merely prod make. The decisions revolution and its ineffectiveness rubric under the uct of our review trial no unreasonable test wherein we discerned three-prong facts of the case. The strategy given particular decisions concomitantly recognize jury did not a defendant’s to a right instruction residual doubt as a identifying mitigating factor. this claim is meritless. Accordingly, Suppress
IX. Denial of Motion to Inculpatory Statements next argues that the lower court erred in his motion to denying suppress his statements recorded in an *51 ambulance while under the hypothermic, dehydrated, influence in of heard the ask morphine,21 pain, having police medical staff to withhold medication until pain Appellant was inter viewed. This confluence of adverse effects overbore ability his give voluntary a statement and critically impaired his self-determination, asserts, capacity for Appellant making thus the admission of his a statement violation of his Fifth and Fourteenth Amendment guarantees. lijé
For the
hours between the time of the
until
shooting
his
arrest
the following morning, Appellant says, he experienced
cold, thirst,
severe
from the bullet
pain
lodged
hip,
his
little
friends,
sleep, and the “stark
of
legal
absence
relatives or
counsel before the police
interrogate
arrived to
him.” Brief of
circumstances,
continues,
Appellant at 51. These dire
he
composed
prelude
mentally
interrogation
coercive
an
of
punctuated by
request
paramedic
officer’s
to with-
hold
until a
of
administering morphine
Appellant
recording
Appellant’s incriminating statement could be obtained. Com-
pounding
Appellant
this effect was the fact
heard he was to be
obtained,
morphine
denied
until the statement was
Appellant
continues.
“To the patient experiencing
pain,
severe
this
coercion,
denial of
psychological
medication constituted
at the
least,
very
and is
precisely
type of situation that mandates
statement,
Though Appellant initially
morphine-induced
refers to a
argument
respect
morphine
crux of his
with
to the administration of
withholding
completed
is that it was the
of the medication until he
his
physical anguish
prolonging
statement —and the mental and
such
of his
pain
product
caused —that rendered
an
his statement
invalid
of coer-
cion.
settings
in medical
taken
consider statements
the court to
”
at 50-51.
Appellant
Brief of
‘extremely suspect.’
medication dur-
pain
of
deprivation
his
analogizes
v.
Commonwealth
to that of the defendant
interrogation
ing
(1977).
awith
Hospitalized
Pa.
The Commonwealth that the responds testimonial evidence adduced at the suppression hearing dispelled any concern Appellant’s recorded confession was the product of coercion. Pennsylvania state troopers arriving at the scene immediately called for emergency assistance upon seeing wounded Appel- lant and interviewed a lucid and responsive Appellant accordance with the dictates of Miranda during the 14-minute ambulance, wait for an the Commonwealth argues. Appellant time, freely during continues, confessed this the argument the interview stopped shortly thereafter when the ambulance arrived to allow paramedics prepare transport to York Hospital.
Knowing tape comments, recorder was then recording all Appellant answered the paramedic’s questions clearly, indicat- ing he had been shot in the right hip during the night, *53 Commonwealth notes. Interrogation resumed after the only EMT’s ten minute medical assessment of Appellant, during which time he Appellant’s obtained medical history, deter- stable, gunshot appeared the of the wound to be
mined status and bleeding, bandage hip, was to the longer applied as it no response Appellant’s heat on the IV tube in to placed packs cold. report that he was assertion, main-
Contrary Appellant’s Commonwealth tains, delayed in the form of was not pain morphine relief IV a confession. The record provision of pending Appellant’s instead, establishes, Navitsky asked the Trooper para- if have five minutes to interview Appellant medic he could agreed, the EMT as that given, before was and morphine for, it the EMT to represented prepare the time would take for, approval administration of mor- physician’s and receive a 33^17,198. indicat- phine anyway. Trooper Navitsky N.T. on of the only put ed he wanted to the recorder substance he had before the ambulance conversation and arrived. N.T. at 198. Recordation of statement was intrave- morphine ensued and thereafter administered nously within the five-minute time frame. itself,
As the recorded statement Commonwealth pertaining answered all to his argues, Appellant questions knowledge rights culpability Miranda and his in the shoot- and He knew ing freely, clearly, candidly. day week, and having drugs, denied taken illicit then offered deadly spotlight hunting, detailed account confrontation scene, from and flight with Officer and subsequent Grove woods, said, which, him time to night gave alone in the he think and remorse for the killing. feel
Then Trooper Navitsky pause recorder asking informing Ryan alleged him of Laumann’s involvement offers, crime, another the Commonwealth further revealed neither nor over- physically psychologically was was, instead, rationale, capable independent, whelmed but his lot in a diffi- goal-oriented thought improve calculated cult Also is that circumstance. noted the Commonwealth conscious, “stable, treating paramedics testified Appellant alert, oriented, acting conversing appropriately.” Appel- Brief of at 45. observed no Appellee They change lant’s demeanor or mental status after he received five milli- *54 observe of they any of nor did evidence grams morphine,22 or blood loss on the of dehydration, part severe hypothermia, 50, 57, 58-62, the recounts. N.T. at Appellant, Commonwealth 114-116, 120, 146-48. consistent, argued,
These were it is with those impressions of trauma Dr. Kern Michael who determined surgeon Hughes, signs was stable and his vital and mental status were normal. No for what he dis- surgery necessary fairly gunshot cerned as a minor wound to the superficial, area, right hip any nor did he detect or sign hypothermia the dehydration, Additionally Commonwealth notes. notewor- in this the thy regard, says, Commonwealth is that Dr. Hughes discharged Appellant only several hours after arrival. statement,
Finally bearing on the voluntariness of his the adds, Commonwealth is evidence that Appellant continued to with law enforcement after cooperate hospital discharge, his them, in showing person, “the he had taken the path previous night general disposed area which he had of his Brief of N.T. weapons.” Appellant, p. citing 224-229. The trial court explained denying Appellant’s its order suppress motion to his statement as follows: The cornerstone of Defendant’s is his claim he challenge was suffering from various medical infirmities at the time of statement; however, his various claims of illness are not by the record. supported professionals consistently Medical scene, indicated that the examination at the during at the there were subsequently hospital, physical symp- no evidencing toms that Defendant suffered from dehydration, addition, hypothermia, significant or blood loss. In Com- monwealth credible presented expert testimony corroborat- ing paucity any evidence that the medical infirmities morphine, 22. As to the effects of this dose of the Commonwealth also Donovan, hearing suppression testimony alludes to of Dr. Ward who, Toxicology System, Chief of at the Health Pinnacle based on findings coupled pharmacological clinical of the case with his own findings, milligrams "determined administration of five morphine in this case to between 10:10 a.m. a.m. 10:25 cognitive impact would have minimal or no whatsoever on his function- ing.” Appellee Brief of at 46. expert’s opinion Defendant’s of ever existed. complained it is true Defendant unconvincing. is While contrary his pri- first emergency responders, complained pain of the hand- tightness related to the complaint initial mary wound to his Once hip. rather than the bullet cuffs released, expressed subsequently Defendant handcuffs were profession- medical questioning by pain only response Indeed, of the circumstances establishes totality als. *55 Defendant, interfere any, if did not by that the suffered pain understand, and ability process, his to any way with Defendant’s respond police questioning. intelligently incapable as to render him impaired condition was not so the incident that rights describing his or voluntarily waiving custody. resulted in his
* >!: * a coopera- manifestations of argues despite Defendant tive, statement, psychological his and voluntary physical he incapable to the extent impaired condition was intelligently waiving rights. his Unfor- understanding Defendant, at the suppression the evidence tunately claim. All medical and law hearing support does not contact with Defendant personnel coming enforcement into interview testified the time related to the during period Moreover, his of time and cognizant place. Defendant was to recall and relate recent ability statement evidenced related in- accurately events. Defendant past and distant proposed rational answers to the provided formation and discussion, Defendant point during At one questions. interview have the recorded requested portion another implicating he discussed a matter suspended while such a consider- ability process in criminal conduct. His of his These complexity thinking. ation demonstrated the cognitive Defendant had sufficient awareness facts confirm waive warnings intelligently to understand his Miranda his rights. Law, filed of Fact and Conclusions of Findings
Trial Court 11-12. 11/16/11
In reviewing suppression court’s denial of a motion, suppression may
we consider only evidence of Commonwealth and so much of the evidence for the defense as remains uneontradicted when read in the context of the as a record whole. Where the suppression court’s factual are findings record, supported by by we are bound these findings if may only reverse the court’s conclusions are legal erroneous. Jones, (2010) 188, 649,
Commonwealth v.
605 Pa.
988 A.2d
Bomar,
(citing
Commonwealth v.
573 Pa.
826 A.2d
(2003)). Nonetheless,
plenary
we exercise
review over the
(citations omitted).
court’s
suppression
conclusions of law. Id.
is of course no single litmus-paper test for
“There
determining a constitutionally impermissible interrogation.
Rather,
the ultimate test of voluntariness is whether
confession is the
of an
product
essentially free and uncon
is,
strained choice
its maker. ‘If it
if he has willed to
confess,
not,
it
bemay
against
used
him. If it is
if his will has
been overborne and his capacity for self-determination critical
*56
”
ly impaired, the use of his confession
process.’
offends due
Hallowell,
221,
327,
Commonwealth v.
444 Pa.
282 A.2d
(1971)
Connecticut,
568, 602,
(quoting Culombe v.
367 U.S.
(1961)).
S.Ct.
In Perry, supra, this Court addressed the voluntariness of who, confession by made a defendant like Appellant, was at the time of his interrogation undergoing medical treatment and gunshot observation for a wound. In concluding Perry’s made, statement involuntarily was we dispositive found the following facts: arrest,
Thirteen hours after his the detective informed of his appellant rights appellant constitutional and indicated give that he would a statement. The contin- interrogation minutes, ued for about hour twenty one until 11:15 a.m. incriminating signed an gave this time During appellant statement. was in bed and appellant lying interview was
During the During detective. interrogating the in the room with alone and was pain the detective of he complained the interview through catheter inserted from a discomfort experiencing for any in order to monitor into the bladder penis the bladder, urinary the injury to bleeding indicating abnormal interview, when during the kidney. point or At one tract he asked the detective pain, appellant complained arrived, appellant the nurse call the nurse. When type of in and wanted some pain informed her that he was Medication, however, Through- was refused. medication. an interview, being through was fed appellant out in the appellant The catheter remained intravenous tube. continued feeding two and the intravenous days for over point during about four At one constantly days. if he the detective was asked interrogation, appellant appellant and the interrogation to continue the wanted that he “didn’t care.” answered Id at 546^47. authority Perry controlling given offers case, key differences readily apparent but it is
facts of his as to scenarios of each case so exist between the factual the inten- was admitted to Perry them. Whereas distinguish chest, his gave for a wound to gunshot sive care unit him isolated for one kept an who interrogator statement cubicle, pain twenty complained hour and minutes a small for a nurse to calling to the during interrogation point was, fact, medication, intentionally pain administer statement, completed medication until he pain denied five lasting statement subject to a recorded agreed who company paramedics and taken in the minutes mor- that amount of time before Navitsky only had Trooper *57 such, no As had Appellant be administered. phine would denied; fact, in medication had been reason to believe his pain when of “that’s fine” response recorder tape captured See given. would be necessary morphine wait time before Law, Findings supra Trial Court’s Fact and Conclusions of of Moreover, at 15. have also noticed Appellant Trooper would had to Navitsky yielded silently paramedics approximately ten they initially minutes as cared for and Appellant prepared him for had asked transport, permission Appellant’s to record statement, and had he needed time explained only short to record a statement Appellant already given had before the ambulance had arrived. These circumstances do not connote a coercive psychologically environment.
Relevant,
well,
to our
is
inquiry
Appellant’s demon-
strated
presence
Trooper Navitsky
mind to ask
to turn
off the recorder at one
him
point to allow
to relate informa-
tion incriminating Ryan Laumann in another crime. Made
in an
to
presumably
attempt
cooperate with authorities in
treatment,
exchange for lenient
further evi-
Appellant’s offer
denced not a coerced
pain
mind overborne with
and intimi-
but, instead,
dation
mind
freely calculating
exploring ways
to secure a more favorable result for himself.
liken the
We
in
import
Appellant’s interrogation response
regard
this
story
the falsified
offered
the defendant in
Common-
(1999)
Johnson,
wealth v.
556 Pa.
or pain fore, physical that substantial invalidating suspicion the influence one’s will to resist effect on diminishing and its testimony arise under the medical others fails to simply hearing. Appellant’s suppression adduced at voluntary of a statement was Finally, Appellant’s provision the hours pertaining substantiated evidence further in an continuation discharge, apparent his where following he accompanied with authorities willingness cooperate steps crime and retraced his back to the scene of the them before, after he committed his fateful act. during, taken reasons, therefore, discern neither an we foregoing For all the in the suppression nor an error of law abuse of discretion that recorded confession Appellant’s court’s determination free and uncon- essentially of an voluntarily product made his role in the Navitsky choice to tell about Trooper strained of Officer Grove. killing Admissibility Proffer
X. of Guilt-Phase History Consumption
of Alcohol issue, argues he In final enumerated Appellant’s witnesses testimony from refusing permit the court erred habit, precisely, his alcohol or more regarding consumption alcoholism, prior it existed to the evidence of his ostensible guilt phase evidence to his criminal incident as corroborative Ap defense. voluntary Specifically, intoxication affirmative mother, Kim testimony to introduce from his pellant sought beer cans empty that: she had found a case of berly Topper, six of alcohol in his bedroom one week and four to bottles murder; from his bed before the had come down murder, before the morning, room one also about a week one or two only he had drunk smelling saying of alcohol and Filer, beers; concern expressed and his Leslie had girlfriend, use, explained to which he Topper about alcohol Appellant’s Also was testi family history proposed had a of alcoholism. recent bank Ms. Filer herself as to mony from a local restaurant in the statements from reflecting purchases Though to the murder. period leading up two week statements did not indicate what was Ms. Filer purchased, testify would the transactions were for alcohol. N.T. at 899- 904, 943.
The trial court excluded Mrs. Topper’s proposed testimony on relevancy hearsay grounds. testimony Neither her about discovering bottles his bedroom nor her observation of Appellant’s condition one week or so before the murder was incident, connected to the sufficiently date of the court *59 found, each rendering only irrelevant. N.T. 900. Not were Ms. Filer’s of bank statements in prospective interpretations the weeks before the murder also irrelevant to the issue of murder, Appellant’s state of mind at the time of the the court ruled, were also they speculative way because there was no ascertain percentage what of the for purchases went food as opposed alcohol. N.T. at 945. As for account of Topper’s concerns, moreover, Ms. Filer’s the court it excluded on grounds it consisted of an out of court declarant’s statement proof offered for the of the matter asserted and thus constitut- hearsay. ed inadmissible N.T. at 902. the of the trial that
According Appellant, ruling court evidence of general consumption of alcohol was irrelevant because it was insufficient by support itself to a defense of voluntary intoxication and other evidence existed that Appel- fact, lant drank on the of the In day murder was erroneous. contends, in Appellant ruling, so the trial court substituted its evidence, judgment jury for that of the as to the of the weight determination, rather than actually making relevancy thereby usurped jury the of its exclusive role of determining credibility assessing weight of witnesses and to their testimo- nies.
Under Pa.R.E. Appellant argues, proper relevancy analysis required a determination as to whether the evidence about Appellant’s alcoholism made more or less apparent probable already testimony Appellant’s admitted drink- ing and the effects thereof. This excluded corroborative evidence, reasons, Appellant credibility would have lent to his statement, out-of-court through testimony admitted Lalani, admitting/treating Fazila M.D. of York Hos- physician of the murder day on the consumption that his alcohol pital the amount N.T. at 896. Because consisted of twelve beers. a matter on the of the murder was day of alcohol he consumed asserts,23 purport- evidence of his Appellant in factual dispute, likely higher it more that the alcoholism would have made ed one, thus to Dr. Lalani was the accurate reported number he In relevant and this highly probative. making proffer concludes, vein, could have resonated evidence the nature of alco- understanding regarding the common with that jury to conclude easily led]” holism and “could [have or overpowered” “overwhelmed likely brain intoxication defense. Brief for voluntary purposes at 56. this Court has responds The Commonwealth con that alcohol rejected very type appeal this previously of murder is at times removed from the moment sumption of mind element to relevant to an assessment of state supra, Murder. In we reviewed PCRA Degree Spotz, First ineffective for to call failing claim that trial counsel was testified as to the collectively who would have witnesses use, intoxication from cocaine use drug defendant’s chronic *60 murder, after and his early morning some twelve hours state about two to three hours after apparently high a volun testimony dismissed the as irrelevant to murder. We remotely testimony intoxication defense: of this tary “[n]one by at or Appellant drugs that was all intoxicated suggests murder, much less that he alcohol at the time of Ms. Gunnet’s point losing as to be overwhelmed to the was so intoxicated a specific and sensibilities and unable to formulate his faculties kill[,]” Here, quite Id. at 91-92. intent we reasoned. contends, none of the the Commonwealth Spotz, similar notes, Trooper Navitsky jury that example, Appellant For told the having prior Appellant reported drunk two or three beers empty shooting Trooper Weaver testified that one Bud Michael Light poaching and another at the can was found at the deer scene Appellant self-reported shooting. scene of the Dr. Lalani testified Ryan drinking day question, in while Laumann twelve beers on the "tipsy p.m. Appellant was and buzzed” from alcohol 4:00 testified company before the and then drank six or seven more beers his shooting. alcohol, proffered witnesses saw consume or other- wise had information alcohol concerning consumption at or near the time of the murder.
The if evidence overriding principle determining any [ ] should be admitted weighing probative involves a prejudicial value versus effect. have held that the trial We and, so, court must decide first if the evidence is relevant if whether its value probative outweighs prejudicial its effect. Hawk, 71, 373, Commonwealth v. 551 Pa. 709 A.2d (1998). This Commonwealth defines relevant evidence as any tendency to make the existence “having any fact that is of consequence to the determination of the action more probable probable or less than it would be without the evidence.” Pa.R.E. 401. Relevant evidence may neverthe- “if probative less be excluded its value is outweighed by issues, danger of unfair confusion of the or mis- prejudice, or leading jury, delay, considerations of undue waste time, or needless of cumulative evidence.” presentation Pa.R.E. 403. Serge,
Commonwealth v. 586 Pa. 896 A.2d (2006).
To have in his prevailed voluntary intoxication defense, required inject under our law to reasonable doubt in the proof Commonwealth’s that he had murdered Officer with the specific Grove intent to kill. This could be accomplished by establishing he a dimin possessed ished at the time of capacity the crime:
A diminished defense does not capacity exculpate the defen- dant from criminal liability entirely, negates but instead element specific intent. For a defendant who proves defense, capacity diminished murder is first-degree mitigat- ed to third-degree murder. To establish a diminished ca- defense, pacity a defendant must that his prove cognitive abilities of deliberation and premeditation *61 compro- were so mised, intoxication, by mental defect or that he voluntary was unable to formulate the intent to kill. The specific mere fact of intoxication give does not rise to a diminished [Rather, defense. a defendant that he capacity show must] his faculties and losing of point to the was overwhelmed defense. voluntary intoxication to prove sensibilities 90-91. Spotz, at that the case position with the Commonwealth’s agree
We which holding Spotz, under our judice squarely sub comes or intoxication at drug use that evidence of chronic declared is irrelevant to a the murder than the time of times other intoxication defense: voluntary witnesses of numerous testimony cites the PCRA
Appellant his chronic and acute concerning evidence who presented It is in the below. use, paragraph we summarize drug who none of the witnesses emphasize important saw or had actually Appellant hearing testified at the PCRA Ms. at the time of Gunnet’s drug as to his use information is relevant. murder, only time that which is of relevancy with to the Spotz respect held in Id. at 91. As we drug and acute chronic defendant’s pertaining evidence murder, so, too, do we time of the at other than the use times alcohol allegedly chronic here that evidence of hold the murder bore use within a week of heavy use and possibly he was intoxicated of whether question no relevance to Grove, he was much less to whether killed the time he Officer point losing to the intoxicated as to be overwhelmed so specific to formulate a sensibilities and unable faculties and latter point, at 92. To that Spotz, intent to kill. See Laumann, supra, as recounted Ryan eyewitness testimony how dem- examples numerous detailed provided “the during his faculties and sensibilities onstrated control of relevant,” i.e., leading hours to and up only time that is testimony This refuted time of the murder. including not have could capacity, of a diminished notion pertaining it irrelevant evidence reasonably overcome with we discern no mani- Accordingly, time. a different period in the court’s or abuse of discretion fest unreasonableness history evi- consumption alcohol evidentiary ruling excluding dence.
569 Passion, Prejudice, XI. and Arbitrariness Review Though Appellant.raises no specific argument under this final we are topic, required independent conduct an penalty 9711(h)(3), review 42 pursuant § which provides Pa.C.S. affirm Supreme “[t]he Court shall the sentence of death (i) unless it determines that: the sentence of death was the product passion, factor; or other prejudice any arbitrary or (ii) the evidence fails to support the of at least one finding (d).” aggravating circumstance in subsection specified Our careful review of the record leads us to conclude that Appel- lant’s sentence of death product was not of passion, prejudice, any factor, was, instead, or other arbitrary but based on the overwhelming evidence that he establishing shot fatally Officer Grove with the specific intent to kill. The moreover, parties did not dispute, that evidence supported 9711(d)(1) application of the Section aggravating circumstance taking the life of a law enforcement officer while in acting the line duty. we Accordingly, hereby affirm Appellant’s convictions and sentence of death.24
Former Justice McCAFFERY did not in the participate decision of this case.
Chief Justice join CASTILLE and Justice EAKIN opinion.
Justice SAYLOR files a concurring opinion.
Justice BAER files a concurring dissenting opinion joins. which Justice TODD SAYLOR,
Justice concurring. I, VII, join VIII, I Parts and XI of the majority opinion, balance, concur in the result relative to the and write to the following points.
As to Part III and Appellant’s
rely
efforts to
upon voluntary
intoxication in
I
mitigation,
support
majority’s
holding
Prothonotary
Supreme
24. The
Court is directed to transmit
complete
Pennsylvania.
record of this case to the Governor of
See 42
(i).
§
Pa.C.S.
9711
that, I
note
merely
Beyond
of precedent.
on the basis
solely
standard”
“stringent
of a
continuing application
that the
9711(e)(3)
v.
mitigator, Commonwealth
the Section
construing
(2010),
606,
n. 7
is out
Flor,
998 A.2d
Pa.
421 n.
of death-
required
construction
narrowing
with the
sync
observed,
Indeed,
there
previously
as I have
statutes.
penalty
Court, to construe
of this
tendency,
part
marked
on
is a
*63
see,
v.
broadly,
e.g., Commonwealth
circumstances
aggravating
267, 320-22,
282-87,
2014 WL
Daniels,
193,
104 A.3d
628 Pa.
(2014)
J., concurring
dissenting),
and
5505024,
(Saylor,
*46
at
(with
and the
present
decision
narrowly
mitigators
and
example).
an
serving
apt
it relies
which
precedent upon
view,
in strong
remains
analysis, my
manner of
such
Again,
mandates. See
federal constitutional
governing
with
tension
Stallworth,
Pa.
alia,
v.
566
(citing,
id.
inter
Commonwealth
(2001) (“[I]n
110,
the context
a
349, 373,
A.2d
124
781
it
whom is
persons against
defining
category
statute
death,
strict con-
a sentence of
such
impose
to
permissible
inclusive inter-
militate in favor of the least
struction should
877,
862,
Stephens,
Zant v.
462 U.S.
(citing
pretation.”
(1983)))).
2742,
2733,
The above comments dovetail
devices,
since,
own
my
left to
majority opinion,
Part
of the
VI
narrow-
constitutionally-required
I
implement
also would
ag-
relative to the in-perpetration-of-a-felony
construction
ing
v.
with
dissent
in Commonwealth
my
consistent
gravator
(2005)
392-99,
433,
Robinson,
358,
A.2d
453-58
583 Pa.
J.,
dissenting).
and
(Saylor,
concurring
prosecutorial practice
to Part
and the
regard
With
IV
into
inject
non-statutory weighing equation
to
attempting
life,
value of a victim’s
centered on the
jury’s
deliberations
plainly
remarks were
attorney’s
that
the district
I believe
of sen-
judgment
and that the
prejudicial,
inappropriate
prompt
be sustained on
basis
may only
tence
court.
by
measures taken
the trial
curative
explicit
to introduce
attempts
Part
Respecting
V
remorse,
majority
of his asserted
extrajudicial expressions
might
which a defendant
suggest
to
a rule
opinion appears
introduce otherwise inadmissible
statements of
hearsay
own, as
as he
to
long
testify
Majority
undertakes
at trial. See
546-47,
at
Finally,
regard
with
to Part
I differ
the majority’s
with
position that chronic alcohol or
abuse
irrelevant
drug
is
to
whether more acute use of such substances
have oc-
may
curred. See
Majority Opinion,
tended include as (d)(6) are the six serious felonies enumerated in the Crimes felony” definition of of a at 18 Pa.C.S. “perpetration Code’s 2502(d). felony” § of a “perpetration This Section defines being in or an accom- engaging act defendant “[t]he of, commit, flight or plice attempt in the commission or an robbery, rape, after or to commit or committing, attempting *65 force, arson, by deviate sexual intercourse force or threat of 9711(d)(6) aggravating may circumstance be used 1. The Section against where defendant committed "[t]he Commonwealth a defendant killing perpetration felony.” of a 42 Pa.C.S. while in the 9711(d)(6). §
573
2502(d)
burglary
(hereafter,
§
or
18
kidnapping.”
Pa.C.S.
2502(d) felonies”).
“Section
According Appellant,
legis-
lative history demonstrates that
to the
prior
U.S. Supreme
238,
Court’s decision in
Georgia,
Furman v.
92
U.S.
S.Ct.
2726,
(1972)
In response
however,
to Furman and its progeny,
Assembly
General
severed the statute into the present day
Code,
murder
provision
2502,
§
the Crimes
18 Pa.C.S.
the death penalty
Code,
statute in the
Sentencing
Pa.C.S.
Thus,
§ 9711.
the perpetration
felony
of a
criteria became an
aggravating circumstance instead of an element of the crime
Robinson,
of first-degree murder.2 See
The Majority
rejected
observes that we
argument
this
Walker,
80,
(1995),
Commonwealth v.
540 Pa.
conviction
unlawful
in
case.
the
this
Commonwealth
argument
the
Majority
generalized
The
is correct
in Robin-
rejected
was considered and
by Appellant
presented
son,
opinion
Saylor,
Justice
notwithstanding
dissenting
a
dissenting
and
joined,
my separate concurring
I
and
which
the defen-
my agreement
in which I
with
opinion,
explained
Robinson,
(Baer, J.,
In Pa.C.S. circum- was added in 1989 and added new aggravating which killing drug-related for in the of certain perpetration stance According Appellant, drug-related felonies. to these crimes 9711(d)(6) already (“killing when the Section in were felonies 1978; of a enacted in felony”) aggravator was perpetration (d)(6) therefore, if the intended the to legislature aggravator felonies, for the all there would have been no need encompass (d)(13) to add to the statute in 1989. legislature the be a logic Appellant’s argument compelling I find to Robinson, as it into question reason deviate from calls history of our of the rejection legislative argument soundness 9711(d)(6) already If included all felonies in therein. Section 1978, have had to add legislature would no need (d)(13) for separate aggravating drug-related circumstance in felonies l(d)(13) aggravating fol-
3. The Section 971 is defined as circumstance lows: killing accomplice The defendant committed the or an 306(c) (relating liability killing, § as defined in 18 Pa.C.S. another; felony complicity), perpetration conduct of while of a 233, (P.L. 64), provisions April the act of No. under 1972 Substance, Act, Drug, The Cosmetic known as Controlled Device and § punishable provisions (relating 7508 under the 18 Pa.C.S. drug trafficking sentencing penalties). Accordingly, accept argument because I that the felony possession proper of unlawful of a firearm is not a (d)(6) offense for the circum- qualifying felony aggravating stance, I dissent from the affirmance of the death Majority’s (d)(6) penalty following jury’s reached consideration Williams, v. aggravator. See Commonwealth 537 Pa. (1994) (“A *67 1251, A.2d death sentence is to be reversed and, therefore, if the on an only jury unsupported relied improper rendering circumstance its aggravating penalty Williams, Commonwealth v. verdict.”); phase 539 Pa. (1994) (“Where A.2d we strike down an aggravating circumstance and other aggravating present circumstances are circumstance, along finding with a of a we are not mitigating in a to determine position whether the lack of the aggravating circumstance struck down would have changed jury’s and, 9711(h)(4), § determination to 42 pursuant Pa.C.S. we are required penalty to vacate the of death and remand for a new sentencing hearing.”).
Former did not in the participate Justice McCAFFERY decision of this case. join
Chief Justice CASTILLE and Justice EAKIN opinion. concurring
Justice SAYLOR files a opinion. joins concurring Justice TODD this and dissenting opinion.