Commonwealth v. Johnson, M., Aplt.Commonwealth v. Johnson, M., Aplt.
JUSTICE DONOHUE
In June 2015, Marcel Emanuel Johnson (“Johnson“) was convicted of killing Ebony Talley (“Talley“), her unborn child, and her four-year-old daughter, R.R. He was sentenced to death for R.R.‘s murder. In this automatic direct appeal,1 Johnson raises nine issues for our review. Following our thorough consideration of these issues and for the reasons set forth below, we affirm his convictions and the imposition of the death sentence.
Shortly thereafter, around 3:00 p.m., a fire was detected in Talley‘s apartment. The fire emitted a thick, black smoke that made it difficult for the responding firefighters to gain entry. Once inside, firefighters discovered Talley‘s lifeless body in the bedroom. Talley was lying face-down with numerous stab wounds to her head, neck and body. A plastic bag was also wrapped tightly around her head.3 Small, empty yellow wax bags stamped in red ink with “# 1 way to go” were found scattered around Talley‘s body. More of these distinctive empty wax bags were found in a shoebox in the bedroom. In the living room, the firefighters found an unresponsive R.R. in a pool of blood beneath an overturned couch. R.R. had been stabbed in the chest and bled profusely. She was rushed to the hospital, but pronounced dead soon after her arrival. Minutes before the fire was detected, a resident of Avalon Court observed Talley‘s vehicle speed out of the parking lot, hitting
While emergency responders were still at the scene of the fire, Johnson placed a series of calls to Talley‘s cousin, Brittany Coles. Ms. Coles, who had been alerted to what wаs happening at Talley‘s apartment and was in a frantic state, told Johnson about the fire. Because she was at work and could not leave, she implored Johnson to return to the apartment complex to obtain more information. Johnson refused, explaining that he wanted to avoid the police because there were outstanding warrants for his arrest. Later that afternoon, Johnson called Talley‘s sister, Paulina Burke. Ms. Burke informed Johnson that both Talley and R.R. had died. She asked Johnson to turn Talley‘s vehicle over to the police and otherwise aid in the police investigation. Again, Johnson refused, citing the outstanding warrants as the basis for his refusal.
In these phone conversations, Johnson indicated that he was calling from a friend‘s home in the Levittown Trace Apartment complex.4 Based on this information, the police proceeded to the Levittown Trace Apartments at approximately 6:00 p.m. and located Talley‘s vehicle in the most remote portion of the apartment complex‘s parking lot. When the police approached the vehicle, they found it was vacant. They also noticed that the license plate had been changed, but the VIN number, which is visible through the windshield, verified that it was Talley‘s vehicle. Shortly after 7:00 p.m., Johnson entered the vehicle and began to leave the parking lot. The police immediately stopped him, utilizing a “felony stop” procedure. During a felony stop, the police officers remain shielded by their vehicles and, with weapons drawn, they instruct the motorist to exit his car, demonstrate that he does not possess a weapon, and lay on the ground before they approach. The police then transported Johnson to their headquarters for questioning. A subsequent search of Talley‘s
At the police station, Johnson waived his Miranda5 rights and agreed to speak with investigators. He explained his friendship with Talley and acknowledged that he was at her apartment earlier that day. He stated that he left Talley‘s home on foot and met up with a friend named Eric Stahl, who was driving Talley‘s vehicle, and that Stahl gave him the keys later that day. After being confronted with evidence that conflicted with this account, Johnson changed his story and admitted both to taking Talley‘s car and her Xbox gaming system and hitting another vehicle as he did. When asked why he did not come to the scene of the fire or the police station at Talley‘s family‘s requests, he reiterated his concern about the arrest warrants. The police arrested Johnson that evening on charges of possession of drug paraphernalia based on items found in his possession when the police stopped him in Talley‘s vehicle.6 That night, while he was in custody, the police obtained and executed a warrant for samples of Johnson‘s DNA, fingernail scrapings, hair samples and clothes.
In January 2014, Johnson was charged with the murders of Talley, R.R., Talley‘s unborn child and related crimes. While detained in the Bucks County Correctional Facility, Johnson admitted to another inmate that he killed Talley and that he killed R.R. because she could identify him as her mother‘s killer. Also while incarcerated, Johnson phoned his brother, Marquis Johnson, and told him that he hid “evidence” in a precise location at the Levittown Trace Apartments and asked him to retrieve it, admonishing that the items should never see the light of day. Marquis did as his brother requested and retrieved a blue plastic glove containing 167 packets of heroin,
A jury trial commenced in May 2015, at the conclusion of which Johnson was convicted of the first-degree murders of both Talley and R.R., third-degree murder of Talley‘s unborn child, arson (endangering peoрle), and possessing instruments of crime.7 During the penalty phase, the Commonwealth presented evidence of four aggravating factors as to Talley: torture; conviction of another murder at the same time of Talley‘s murder; involvement in the sale of narcotics at the time of the murder; and knowledge of Talley‘s pregnancy.8 N.T., 6/8/2015, at 192-95. The Commonwealth pursued three aggravating factors with regard to R.R.: that R.R. was a witness to a murder and was killed to prevent her from testifying; conviction of another murder at the same time as R.R.‘s murder; and that R.R. was less than twelve years old.9 Id. at 197-200.
Johnson presented evidence in support of four mitigating factors: his lack of a significant history of prior criminal convictions; extreme mental or emotional disturbance at the time of the murders; and the fact that he was twenty-one at the time of the murders.10 Id. at 200. Johnson also presented an assemblage of evidence under the catchall mitigating factor,
I. Sufficiency of the Evidence
In all death penalty cases, this Court reviews the sufficiency of the evidence to ensure that it supports the verdicts of first-degree murder, whether or not the appellant raises the issue. Commonwealth v. May, 584 Pa. 640, 887 A.2d 750, 753 (2005). When reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as the verdict winner, support the jury‘s verdict beyond a reasonable doubt. Commonwealth v. Patterson, 625 Pa. 104, 91 A.3d 55, 66 (2014). The determination of whether sufficient evidence exists to support the verdict is a question of law; accordingly, our standard of review is de novo and our scope of review is plenary. Id.
To establish first-degree murder, the Commonwealth must prove that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill. Id. “Specific intent to kill may be inferred by the use of a deadly weapon upon a vital part of the body, and the Commonwealth may prove the specific intent to kill necessary for first-degree murder wholly through circumstantial evidence.” Id.
Substantial evidence also demonstrated that both victims were killed by the use of a deadly weapon on vital parts of the victims’ bodies. Dr. Ian Hood, a forensic pathologist, testified that Talley suffered thirty-five stab wounds to her head, neck, chest and abdomen. N.T., 5/28/2015, at 205. One wound perforated the common carotid artery in her neck and two others entered her chest cavity, causing a collapsed lung and internal bleeding. Id. at 206-08. While Talley was incaрacitated from blood loss, a plastic bag was secured over her head, “providing terminal asphyxia as a final mechanism of death[.]” Id. at 232. R.R. was stabbed in the upper chest, just below her collarbone. Id. at 194-95.
There was also circumstantial evidence of Johnson‘s guilt. Talley‘s mother and sister testified that when they left Talley‘s home, Johnson remained in the apartment with Talley and R.R. N.T., 5/28/2015, at 271; N.T., 5/27/2016, at 112. Fires were set on or immediately beside the incapacitated Talley and R.R., N.T., 5/27/2015, at 186-88, and were discovered approximately half an hour after Talley‘s mother and sister left, just minutes after Johnson was observed fleeing the scene at a high rate of speed in Talley‘s vehicle. N.T., 5/29/2015, at 300. This evidence, when viewed in the light most favorable to the Commonwealth, places Johnson in the apartment at the relevant time. Moreover, Talley‘s DNA was found under Johnson‘s fingernails, which, according to expert testimony, was not the result of casual contact with Talley. Id. at 186-87. Dr. Hood testified that Talley‘s body bore multiple defensive wounds and that the relatively shallow depth of many of the stab wounds was the result of Talley‘s struggle against her assailant. N.T., 5/28/2015, at 205, 210. Johnson was observed to
Johnson raises a single challenge to the sufficiеncy of the evidence, claiming that it is insufficient to establish that he was the person who killed Talley and R.R. and set the apartment on fire. Johnson‘s Brief at 37. Notably, Johnson does not dispute the evidence detailed above. Instead, he directs our attention to other evidence. For instance, Johnson acknowledges that he fled Talley‘s apartment complex in a hurry, but argues that flight alone does not establish guilt. Id. at 38. He suggests that other people involved in the drug trade could have wanted to harm Talley, and presents an alternative scenario in which he arrived at the apartment only to find that it had been set on fire and fled in a panic. Id. at 38-39. He also points to the lack of blood found on his clothes and body, that his blood was not found in Talley‘s apartment, and that his DNA was not found on Talley. Id. at 39-40.
These alleged deficiencies of physical evidence were, however, offset by other evidence. For example, although Johnson points to the lack of blood on his clothing, there was testimony that Johnson changed his clothes between the time of Talley‘s family‘s visit and his apprehension by the police a few hours later. N.T., 5/27/2015, at 113; N.T., 5/29/2015, at 41. Likewise, Johnson‘s focus on the absence of incriminating blood or DNA at the scene of the crime may be explained by testimony from a Commonwealth witness that the blood and DNA samples recovered from Talley‘s apartment proved to be unsuitable for testing. N.T., 5/29/2015, at 122-126.
More importantly, Johnson does not genuinely contest that the evidence presented by the Commonwealth, when viewed in the light most favorable to it, was legally sufficient to prove his guilt. Instead, his arguments seek to vitiate the weight of the evidence supporting his convictions and to undermine the credibility of the Commonwealth‘s witnesses. Seen in this light, Johnson‘s arguments are addressed to the weight of the evidence supporting his convictions, not the sufficiency of the evidence. See, e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009). Johnson has not raised a weight of the evidence claim in this direct appeal, and as such, it has not been preserved for appellate review.
II. Suppression Issues
Johnson raises two issues in connection with the trial court‘s denial of his motions to suppress his statement to the police and evidence of him selling drugs with Talley. Our standard of review for such claims provides that we may consider only the Commonwealth‘s evidence and so much of the defense‘s evidence as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Arter, 637 Pa. 541, 151 A.3d 149, 153 (2016). Where the record supports the suppression court‘s factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrоm are in error. Id. As an appellate court, however, we are not bound by the suppression court‘s conclusions of law. Id.
Johnson first argues that the trial court should have suppressed his statement to the police because the police did not inform him that they were going to question him about the deaths of Talley and R.R. until after he waived his Miranda rights. Johnson‘s Brief at 25. Johnson protests that he had no indication as to the purpose of the interrogation and was under the reasonable (but mistaken) assumption that he was stopped by the police and brought in for questioning because of outstanding arrest warrants issued for summary, non-traffic citations. Id. at 28.
A waiver of Miranda rights is valid where the suspect is aware of the general nature of the transaction giving rise to the investigation. Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553, 556 (1977). “[O]nly when such knowledge is possessed by a suspect ... can [he] be said to understand the consequences of yielding the right to counsel.” Id. This is because “[i]t is a far different thing to forgo a lawyer where a traffic offense is involved than to waive counsel where first
In the present case, the trial court found that substantial evidence supported Johnson‘s awareness that the police intended to question him about the fire and murders rather than warrants for non-traffic summary offenses. Trial Court Opinion, 3/23/2016, at 16-17. This evidence included: Johnson‘s knowledge of the fire and of Talley‘s and R.R.‘s deaths, his understanding that the police wanted to inspect Talley‘s vehicle as part of the investigation, and his possession of that vehicle. In light of these facts and the tight timeline between the murders and the police taking Johnson into custody, it was “completely illogical” for Johnson to think that a number of officers would “swoop down on him, [and] tak[e] him into custody in a car that was owned by a homicide victim or potential homicide victim ... for some old summary citations, basically what amounts to a dispute between himself and the local [d]istict [c]ourt.” N.T., 11/26/2014, at 19.
The trial court‘s factual findings are supported by evidence of record. Talley‘s cousin, Brittany Coles, testified that she knew Johnson through Talley. N.T., 11/25/2014, at 27. At about 4:30 p.m. on the day of the murders, Ms. Coles told Johnson that there was a fire in Talley‘s apartment and that she could not get in touch with Talley. Id. at 31. Talley‘s sistеr, Paulina Burke, testified that while she was at the hospital on the day of the fire, she received a phone call from Johnson. During this conversation, she told him that Talley and R.R. died. N.T., 9/16/2014, at 6; N.T., 6/30/2014, at 134. Ms. Burke knew that Johnson was driving Talley‘s car, and when she
Johnson argues that his case is factually indistinguishable from Dixon. We disagree. In Dixon, a local magistrate convicted the defendant of malicious mischief and ordered her to pay restitution at the rate of fifty dollars a month, beginning in March 1973, until the $500 judgment was satisfied. Dixon, 379 A.2d at 555. The magistrate pointedly told the defendant that if she defaulted on her payments, a warrant would be issued for her arrest and police officers would be sent to arrest her. Id. The defendant failed to make even one payment, and as a result, a warrant for her arrest issued. Id.
That summer, the body of the defendant‘s young son was discovered in a wooded area and a police investigation ensued. Id. at 554. On August 14, 1973, three police officers appeared at the defendant‘s home and asked her to go with them to the police barracks. Id. The officers had in their possession the arrest warrant related to defendant‘s restitution delinquency, but because the defendant agreed to go with them, they did
The police immediately began to question the defendant about her son‘s death, to which she quickly confessed. Id. On appeal following her conviction for her son‘s murder, the defendant argued that her Miranda waiver was not knowing and voluntary because she believed that the police appeared at her house because of her failure to make restitution payments. Id. This Court agreed, concluding that the circumstances exhibited that a “palpable ambiguity” existed as to the defendant‘s understanding of why she was being questioned. Id. at 557. Because the interrogating police officers took no measures to dispel the ambiguity before obtaining her waiver, the defendant‘s waiver could not be deemed to have been knowingly and intelligently made. Id.
It is Johnson‘s position that, just like the defendant in Dixon, he knew that there were outstanding arrest warrants for him on summary citations. Johnson‘s Brief at 28. He also points out that he was apprehended in a vehicle that was not his, thus creating another ambiguity as to the topic of the interrogation. Id. at 29. Johnson‘s arguments, however, entirely ignore all of the other above-reviewed information he possessed at the time of his arrest and interrogation. In Dixon, the ambiguity stemmed, in large part, from a magistrate‘s explicit warning that the defendant would be arrested if she did not comply with the terms of the restitution order (and her knowledge that she had not made any payments). Dixon, 379 A.2d at 557. Here, in significant contrast, Johnson‘s knowledge of relevant events at the time of his arrest and interrogation do not support a finding of any such ambiguity.
For his second suppression issue, Johnson claims that no probable cause existed to support the issuance of a warrant for samples of his DNA. Johnson‘s Brief at 31.
Here, the application for a search warrant and accompanying affidavit of probable cause were filed by Detective Fuhrmann at 1:33 a.m. on November 26, 2013, within hours of the end of the interrogation of Johnson. The warrant application sought, inter alia, DNA samples by means of oral swabbing, swabbing of both hands, fingernail scrapings from both hands, and hair samples.13 Application for Search Warrant, 11/26/2013, at 1. In the affidavit of probable cause, Detective Fuhrmann detailed the fire in Apartment 604 and discovery of the bodies of Talley and R.R.; the determination that Talley had multiple stab wounds, including some that looked to be defensive wounds; and the conclusion that the fire appeared suspicious in nature. Affidavit of Probable Cause, 11/26/2013, at 1-2. He stated that based on his training and experience, he was aware that “arson is sometimes used to destroy or conceal evidence of a crime.” Id. at 2. Detective Fuhrmann stated that Nigeria Gary, a resident of the apartment complex, observed Talley‘s vehicle speed out of the parking lot approximately ten
The magistrate issued the search warrant based on these sworn allegations. The trial court found the warrant sufficiently supported by probable cause, reasoning as follows:
The probable cause affidavit ... set forth the facts regarding the time and place of thе fire, the death of [Talley] and R.R. and the stab wounds observed on the bodies. The affidavit also set forth facts regarding [Johnson‘s] connection with those events. [Johnson] admitted that he was in the apartment with the victims [on] the day of the fire. Within minutes of the fire being detected, [Johnson] fled the scene in a Cadillac at a high rate of speed, striking a parked car in the process. Within four hours of the fire, [Johnson] was stopped driving the Cadillac. At that time, the Cadillac displayed a license plate that did not belong to the vehicle. Just hours after the murders, police observed a cut on [Johnson‘s] hand. When he was questioned by the police as to his whereabouts at the time of the murders, [Johnson] gave conflicting accounts. [Johnson‘s] presence at the scene both before and after the fire started, his hasty flight from the scene in the apartment owner‘s car, his inconsistent statements to police and the injury to his hand provided sufficient circumstances, when viewed in a practical, common sense and realistic fashion, for the issuing authority to conclude that there was a fair probability that evidence of a crime would be found on [Johnson‘s] person. The motion to
suppress ... for failure to set forth probable cause was, therefore, properly denied.
Trial Court Opinion, 3/23/2016, at 20-21.
Based upon our standard of review, we find no error in the trial court‘s ruling. The trial court‘s findings are grounded in the affidavit‘s allegations and the trial court applied the proper legal standard, as it considered whether the allegations established a fair probability that evidence that could tie Johnson to these crimes could be found through his DNA.
Johnson complains that while the allegations might establish that he was present at Talley‘s apartment and then fled, neither of these facts by themselves establishes probable cause for a warrant related to his involvement in the murders. Johnson‘s Brief at 34-35. To begin, Johnson‘s argument ignores many of the other substantive allegations set forth in the affidavit of probable cause, such as that he was found in possession of Talley‘s vehicle; the change of license plates; the cut on his hand and Talley‘s defensive wounds; and the inconsistent nature of his answers to police questions. Moreover, allegations amounting to probable cause need not be considered in isolation; rather, a probable cause determination is based on the totality of the circumstances. Lyons, 79 A.3d at 1064. Consideration of these facts, in addition to Johnson‘s admitted presence in Talley‘s home immediately before the fire was detected (and his frenzied flight from the apartment), all coalesce to еstablish a sufficient basis for the issuance of the search warrant.
Johnson further claims that there was no basis for the issuance of a nighttime warrant. In addition to probable cause, an application for a warrant for a nighttime search must also show “some reason why the search cannot wait until morning.” Commonwealth v. Bowmaster, 101 A.3d 789, 794 (Pa. Super. 2014); see also
We face a similar scenario here. In addition to Johnson being in police custody, the transient nature of the evidence sought to be collected supports the trial court‘s determination. The trial court fairly concluded that the requisite reasonable cause for a nighttime warrant existed because “[i]nvestigators were searching for trace evidence on [Johnson‘s] person, evidence that is easily lost by the simple act of washing or the mere passage of time.” Trial Court Opinion, 3/23/2016, at 21. For these reasons, we find no trial court error on this issue.
III. Prior Bad Acts
Johnson challenges the trial court‘s decision to introduce evidence relating to his drug dealing partnership trade with Talley pursuant to
The trial court rejected Johnson‘s contention that this evidence of prior drug dealing activities was inadmissible under
In its written opinion, the trial court presents a general statement of the decisional law relating to
Instead of attempting to analyze whether the contested evidence fit into one of the
Despite the lack of a cogent argument to support the trial court‘s decision to permit the introduction of the evidence, we nonetheless conclude that there was no error in admitting the evidence pursuant to
Although not specifically referencing
The evidence challenged by Johnson was in fact all directly relevant and admissible to prove that Johnson stole heroin from Talley during the course of events leading to her murder and that of her daughter. Evidence of Johnson‘s collaborative drug selling activities with Talley (including his statements, the electronic evidence and the videotape) were all relevant and admissible to prove his knowledge of her heroin supply, including the quantities she possessed and where they were located in her apartment. The bags of heroin that Marquis recovered from Levittown Trace Apartments at Johnson‘s direction, in packaging identical to those found in Talley‘s apartment, were relevant and admissible to prove that Johnson had stolen these drugs from Talley.
Accordingly, although we do so for reasons other than those relied upon by the trial court, we conclude that there was no error in connection with the admission of this evidence. The evidencе was relevant and admissible to prove that Johnson committed a robbery in connection with the murders of Talley and R.R., and was therefore admissible to prove the second-degree murder charges.
Johnson next challenges the admission of certain testimony by his brother Marquis. Johnson‘s Brief at 55. Marquis testified that during a conversation with Johnson “no more than five days” before the murders, Johnson told him, “I‘m willing to do anything to make a come up.” N.T., 6/1/2015, at 63-64. Marquis further stated that his brother said that “anything” included his willingness to “shoot someone ... or be involved with anything[.]” Id. at 64. Marquis indicated that he understood “make a come up,” to refer to “coming up with income.” Id. Over objections by Johnson that this testimony was not relevant and constituted impermissible “prior bad acts” evidence that did not fit within any of the exceptions provided in
As a result, Marquis’ testimony was not inadmissible under
Importantly, Johnson did not assert at trial or present here on appeal, any hearsay objections to Marquis’ testimony about his (Johnson‘s) extrajudicial statements. Accordingly, whether this testimony constituted inadmissible hearsay or, cоnversely, satisfied one or more exceptions to the hearsay rule, is not before this Court.
V. Unconstitutional Limitation of Mitigating Evidence
The trial court limited the admission of this evidence.21 Drawing a boundary, the trial court reasoned that testimony regarding “any event in a relative‘s life that was somehow made part of the family structure or that was made known to [Johnson], and therefore could be said to have had an impact upon him, would be relevant and admissible[,]”22 but that “[e]vidence from generatiоns past regarding events at which [Johnson] was not present or of which he had never been made aware is not relevant or material to the personal history or character of [Johnson]” and were therefore inadmissible. Trial Court Opinion, 3/23/2016, at 36-38. Heralding that the Eighth Amendment requires a jury to “consider and give full mitigating effect to any relevant mitigating evidence[,]” Johnson argues that the trial court‘s ruling was an unconstitutional infringement on his right to present mitigating evidence. Johnson‘s Brief at 63.
It is unconstitutional for a court to bar the presentation of relevant mitigation evidence during the penalty phase of a capital trial. Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 776 (1998) (discussing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)); Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Eddingsv. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)). This pronouncement only applies to mitigation evidence that is relevant. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657, 674 (2014) (providing that evidence of mitigating circumstances must satisfy the threshold requirements of being both relevant and admissible). As a general matter, evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.
Johnson attempts to establish the relevance of the excluded evidence based upon a comment to the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7 (“Guideline 10.7“). Johnson‘s Brief at 63-64. Guidеline 10.7 provides that when developing mitigation evidence, defense counsel should seek records and information “concerning not only the client, but also his parents, grandparents, siblings, cousins and children” because “[a] multi-generational investigation extending as far as possible vertically and horizontally frequently discloses significant patterns of family dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment.” Id. at 64 (quoting Guideline 10.7, Cmt.). Based on this comment, Johnson declares that his evidence of three generations’ worth of “trauma inducing bio-psycho-social risk factors” and agency intervention in the family should have been deemed relevant and admissible. Id. at 65.
Johnson argues that this Court has recognized this concept in two prior cases, Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006), and Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505 (2004). Johnson‘s Brief at 65. A review of these cases, however, indicates that this Court has never endorsed Guideline 10.7 as a basis for the admission of evidence in death penalty cases. In Spotz, we acknowledged only that Guideline 10.7 recognizes that defense counsel‘s duty to pursue mitigation evidence extends to investigating prior convictions that could be used as aggravating circumstances. Spotz, 896 A.2d at 1226. In Williams, Chief Justice Saylor cited to Guideline 10.7
Beyond drawing our attention to Spotz and Williams, Johnson does not articulate a principled argument for the adoption of the comment to Guideline 10.7 as a reason for the admission of evidence. On its face, the comment is merely a prescriptive for capital defense counsel‘s obligation to thoroughly investigate mitigation evidence. It is, for lack of a better term, advice to defense counsel recommending potentially fertile sources of mitigation evidence. It does not, as Johnson now contends, provide any substantive basis to establish a per se rule requiring the admissibility of every type of evidence referenced in the comment. The comment does not address the issue Johnson raises here, specifically whether all evidence of a family history of abusive and neglectful behavior, poverty, drug abuse and mental illness—suffered by Johnson‘s grandparents, parents, and aunts and uncles, and of which Johnson had no knowledge or familiarity—is admissible even if he cannot establish that it had any material effect on his character, his record, or the circumstances of his offense. See
We cannot say that, in a future case, we might well find that the type of “family history” evidence that Johnson sought to offer into evidence is admissible. Here, however, we hold that Johnson has failed to provide any persuasive argument or advocacy for this Court to adopt his position.
VI. Penalty Phase Jury Instruction and Verdict Slip
Johnson asked the trial court to address each discrete mitigating circumstance that he offered under section (e)(8) separately when instructing the jury and to list them separately on the verdict slip.23 The trial court denied this request, but provided the following charge to the jury:
The defense has alleged and presented evidence to support various mitigating circumstances. They are also defined by statute, and I will go through those now. First, that the defendant has no significant history of prior criminal convictions. Second, that the defendant was under the influence of extreme mental or emotional disturbance at the time of the killing. Third, the age of the defendant at the time of the crime. Specifically, the defense has offered by way of mitigating that the defendant was [twenty-one] years old at the time the crimes were committed.
And fourth, this has been referred to as the catch-all, but it is actually more specific than that. The fourth area of mitigation circumstances ... alleged by the defense is any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.
Now, under that mitigating circumstance[,] the defense has made a number of arguments regarding the character and record of the defendant and the circumstances of the offense. They have argued that he has impaired neurological functioning. They have argued lack of stability. They have argued maternal neglect or general neglect. They have argued maternal rejection. They have argued physical abuse. They have argued that the defendant lost his father. They have argued that his family was involved in the criminal justice system in [sic] various criminal conduct. They have argued institutional failure. They have argued the effect of multiple adverse childhood experiences on the defendant. They have argued that he suffers from mental illness and was not medicated at the time of the crime. They
have argued that the defendant desires to do well in his life and that there are other circumstances you may consider. All of those arguments, all of those arguments relate to the mitigating circumstance number four. That is one mitigating circumstance. But you may consider all of those facts in support of that mitigating circumstance.
I want to be clear. One, what I have just listed for you is not an exhaustive list of what the defendant argued under that mitigating circumstance. It will be for you to recall everything that Mr. Fioravanti has рresented and argued to you that would support that mitigating circumstance. I also want to be very clear that neither I nor Mr. Fioravanti—my instructions or Mr. Fioravanti‘s arguments should limit you in terms of what you can find as a mitigating circumstance or mitigating evidence under that catch-all mitigating circumstance. Any other mitigating factor relating to the character and record of the defendant and circumstances of his offense may be—should be considered by you. There is no limit to the mitigation that you may find under this factor so long as it arises from the evidence.
N.T., 6/8/2015, at 201-04.
Johnson argues that the United States and Pennsylvania Constitutions requires a jury to consider all mitigating factors, and that grouping all non-statutorily defined mitigating evidence under one category creates the risk that the jury will not give the evidence of each non-statutory mitigating factor separate and equal consideration. Johnson‘s Brief at 58-60. Johnson contends that the failure to address each factor individually in the jury instruction and to include each mitigating circumstance separately on the verdict slip could have led the jury to “discount” their importance during deliberations. Id. at 58-61.
This Court recently rejected the argument that Johnson now advances. The defendant in Commonwealth v. Mattison, 623 Pa. 174, 82 A.3d 386 (2013), asked the trial court to charge the jury separately on each of the seven claims оf mitigating evidence that he presented under
The defendant in Mattison candidly admitted that no Pennsylvania statute or case law supported his argument, and he instead directed us to federal cases prohibiting state courts from restricting a capital defendant‘s presentation of relevant mitigating evidence. Id. at 399 (citing Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). This Court reasoned, however, that the defendant‘s claim confused the distinction between allowing a jury to consider mitigating evidence and guiding its consideration of the mitigating evidence. Id. at 400. The federal cases at issue involved instances in which the trial court either rеstricted the type of mitigation evidence presented or advised the jury to ignore non-statutory mitigation evidence. Id. at 399-400. We concluded that where a trial court allows the contested, non-statutory mitigation evidence to go to the jury and guides its consideration by instructing the jury in conformance with the language of
Our decision in Mattison disposes of Johnson‘s
VII. Denial of Motion to Bar Death Penalty Due to Nature of Crimes
Johnson argues that the Commonwealth should not have been permitted to pursue the death penalty because the “nature and brutality” of the crimes would overwhelm the jury and negate its ability to impartially consider the mitigation evidence he put forth, thereby violating his constitutional right to have the jury “consider and give effect to all mitigating evidence.” Johnson‘s Brief at 72-73.26 Johnson asserts that the death penalty is intended for only the worst offenders and the very worst crimes, and argues that the jury here was predisposed to place him in that unenviable category because of the nature of the crimes. Id. at 69-73.
We agree that there is no merit to this claim. Johnson‘s argument is that the Commonwealth should not have been permitted to pursue the death penalty because the particularly brutal nature of his crimes would blind the jury to its duty to consider and weigh mitigation evidence. Taken to its logical conclusion, Johnson‘s position would result in the anomalous situation in which the more heinous the crime, the less likely that its perpetrator would be eligible for the death penalty because of the overmastering influence the circumstances could have on the jury‘s impartiality. Criminals who commit the most egregious crimes would be effectively exempt from the death penalty, when the death penalty has been reserved for precisely such crimes. See Kennedy v. Louisiana, 554 U.S. 407, 420, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (“[C]apital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.“). This would be a bizarre and irrational outcome, and we do not endorse it.27
VIII. Constitutionality of Aggravating Factors
In his final argument, Johnson alleges that three statutory aggravating factors the jury found in relation to the
We have similarly rejected two prior vagueness challenges to
this aggravating circumstance clearly narrows the class of persons eligible for the death penalty by excluding those individuals who have not been convicted of another murder. Moreover, the “multiple murder” aggravator reasonably
justifies the imposition of a more severe sentence because, based upon their risk of danger to general society, those individuals convicted of multiple murders warrant a harsher punishment. As such, the “multiple murder” aggravator comports with the necessary requirements of the Eighth Amendment and the Due Process Clause.
Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 913 (2004). Relying on Fletcher, we reached the same result in Baumhammers. Baumhammers, 92 A.3d at 737-38. As with
42 Pa.C.S. § 9711(h)
This Court is required to review every death sentence to ensure that it was not imposed as a result of passion, prejudice or any other arbitrary factor and that there is evidence to support the jury‘s finding of aggravating circumstances.
The sound factual predicate for the aggravating factors bolsters a conclusion that the sentence was not the result of passion, prejudice or any other arbitrary factor. Indeed, the jury also found three mitigating circumstances,29 but in its ultimate calculus decided that they were outweighed by the aggravating factors. The record reveals nothing but a measured and sober deliberation. Accordingly, we must affirm the sentence of death.
Conclusion
Having found no reversible error, we affirm Johnson‘s convictions and judgment of sentence. The Prothonotary is hereby directed to transmit to the Governor the complete records of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court of Pennsylvania, pursuant to