COMMONWEALTH OF PENNSYLVANIA v. TAM M. LE
Nos. 756 CAP, 757 CAP, 758 CAP
IN THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
DECIDED: MAY 31, 2019
ARGUED: September 25, 2018
JUSTICE TODD
In this direct capital appeal,1 Appellant Tam M. Le challenges the sentence of death imposed by the Philadelphia County Court of Common Pleas following his conviction by a jury of two counts of first-degree murder,2 one count of attempted murder,3 three counts of kidnapping,4 three counts of robbery,5 and one count of conspiracy.6 For the reasons that follow, we affirm Appellant’s judgment of sentence.7
On August 26, 2014, Tan Voong, a/k/a Sonny Voong, received multiple telephone calls from a friend, Vu Huynh, a/k/a Kevin Huynh (hereinafter “Kevin“), asking to borrow $100,000. Kevin and his younger brother, Viet Huynh (hereinafter “Viet“), allegedly owed the money to Appellant and several of Appellant’s friends from New York. Over the next four to five hours, Voong was able to gather approximately $40,000, and was instructed by Kevin to bring the money to Appellant’s house on South 72nd Street in Philadelphia. Voong had met Appellant previously, and had been to his house on one prior occasion. When Voong arrived at the residence, Appellant met him outside. Voong asked where Kevin was, and Appellant led him to the garage. When Voong entered the garage, he observed Kevin and Viet seated in chairs, bound, blindfolded, bleeding, and wearing only their boxer shorts and T-shirts. He also saw four individuals with masks on their faces. Voong attempted to run, but was hit in the face with a gun. He then was stripped to his underwear and T-shirt; his hands were zip-tied behind his back; his mouth, eyes, and legs were duct-taped; and he was placed in a chair. Someone asked Voong where the money was, and Voong responded that it was in his car. Several of the masked individuals began to beat Voong, who asked for time to collect the rest of the money. Appellant responded, “It’s too late,” N.T. Trial, 11/14/16, at 96, and Voong, Kevin, and Viet were placed in a van and driven to a location along the Schuylkill River.
As Voong was removed from the van, he felt sand under his feet. He knelt down and felt himself being stabbed in the back, chest, and neck. Chains were strapped
In the area of the river that Voong identified, police found the bodies of Kevin and Viet, clothed only in boxer shorts and T-shirts. Kevin’s body was found submerged under five feet of water. He had duct tape on his head, face, neck, mouth, and legs. Under the duct tape on his eyes was fiberglass mesh construction tape. He had construction zip ties on his wrists, and nearby was a nearly-full bucket of roof cement with a chain attached. Kevin had been stabbed 24 times in the torso, legs, and head. He also had
The police conducted a videotaped interview of Voong in his hospital room at approximately 10:45 a.m. on August 27, 2014. Voong acknowledged that he previously gave the police the name of his younger brother, and described the events that occurred when he went to Appellant’s house the prior evening. At trial, Voong stated that he gave the police his brother’s name and date of birth when he was first found because he did not feel like he could trust anyone. Id. at 51. During the interview, Voong identified Appellant, whom he referred to as “Lam,” from a photograph array by circling Appellant’s picture.
On the morning of the following day, August 28, 2014, police officers searched Appellant’s home and property, which he shared with his girlfriend, Bich Vo, their three children, and Vo’s other two children. Amid a large amount of construction materials in the detached garage, police discovered buckets of roof cement attached to chains and a Walmart bag containing several pieces of rolled-up silver duct tape. The duct tape had both blood and hair on it, and subsequent testing revealed that the blood and hair contained both Kevin’s and Viet’s DNA.
On September 20, 2014, the police issued an arrest warrant for Appellant. By this time, however, Appellant had fled with his girlfriend and children to Delaware. According to the trial testimony of Vo, as she was leaving her house on August 26, 2014 to visit a
Prior to jury selection, Appellant’s counsel requested permission to question potential jurors regarding Appellant’s prior conviction in New York for voluntary manslaughter, the equivalent to third-degree murder in Pennsylvania. The trial court denied the request.
At trial, in addition to the testimony of Voong and Vo,8 the Commonwealth introduced the cell phone records of Appellant, Vo, Kevin, Viet, and Voong. In order to
Appellant testified in his own defense, claiming that Kevin and Viet had asked to borrow money from him in order to repay a debt they owed to individuals from New York. He testified that a number of people, including Viet, Kevin, and Voong came to his garage on the evening of August 26, 2014 to discuss the repayment, and that several individuals from New York tied up the brothers and Voong, but not him, and then put all four of them
On December 1, 2016, a jury convicted Appellant of two counts of first-degree murder; three counts of kidnapping; three counts of robbery; one count of attempted murder; and one count of conspiracy.9 At the penalty phase of Appellant’s trial, the Commonwealth introduced, inter alia, evidence of Appellant’s prior conviction for manslaughter in New York. The jury found five aggravating circumstances with respect to both first-degree murders: (1) the victim was being held for ransom or reward,
II. Analysis
A. Sufficiency of the Evidence
Although Appellant has not raised a claim regarding the sufficiency of the evidence, in all direct capital appeals, this Court nevertheless reviews the evidence to ensure that it is sufficient to support a first-degree murder conviction. Commonwealth v. Poplawski, 130 A.3d 697, 709 (Pa. 2015). In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all the reasonable inferences derived therefrom, viewed in favor of the Commonwealth as verdict winner, supports the jury’s finding of all of the elements of the offense beyond a reasonable doubt. Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009).
First-degree murder is an intentional killing, i.e., a “willful, deliberate and premeditated killing.”
In addition, as it is relevant to our review of the first-degree murder convictions, in order to convict a defendant of conspiracy, the Commonwealth must prove: (1) the defendant intended to commit or aid in the commission of the criminal act; (2) that the defendant entered into an agreement with another to engage in the crime; and (3) the defendant or one or more of the other co-conspirators committed an overt act in
Finally, an individual may be held criminally liable for the acts of another, including first-degree murder, as an accomplice. In order to sustain a conviction based on accomplice liability, the Commonwealth must demonstrate that an individual acted with the intent of promoting or facilitating the commission of an offense and agrees, aids, or attempts to aid such other person in either planning or committing that offense. Commonwealth v. Spotz, 716 A.2d 580, 585–86 (Pa. 1998). As with conspiracy, a shared criminal intent between the principal and his accomplice may be inferred from a defendant’s words or conduct or from the attendant circumstances. Id.
Based upon our thorough review of the record, and even though it is unclear whether Appellant or one of his co-conspirators and/or accomplices inflicted the fatal wounds, we conclude that the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to support Appellant’s convictions for first-degree murder as a conspirator and/or accomplice in the deaths of Kevin and Viet. As detailed above, Voong testified that, on August 26, 2014, he received numerous telephone calls from Kevin, asking to borrow money. Kevin instructed Voong to bring the money to Appellant’s house. Voong testified that, when he arrived at Appellant’s house, Appellant escorted him to the garage, where he observed Kevin and Viet stripped to their underwear, bleeding, and tied up in chairs. At this point, Voong was beaten by several masked individuals. Voong testified that he asked for additional time to collect the
The cell phone records introduced at trial confirm the exchange of numerous phone calls between Viet and Appellant, Kevin and Viet, and Kevin and Voong on the afternoon and evening of August 26, 2014. The cell phone records further placed Kevin, Voong, and Appellant in the area of Appellant’s house into the early morning of August 27, 2014, and placed Appellant’s phone in the area of the crime scene that same morning. Following Voong’s identification of Appellant from a photo array, police discovered at Appellant’s residence roofing cement buckets with chains wrapped around them; notably, the bodies of both Kevin and Viet had roofing cement buckets chained to their legs, or floating nearby. Police also recovered from Appellant’s garage duct tape that contained Kevin and Viet’s hair and blood.
The above evidence presented by the Commonwealth, and the reasonable inferences deduced therefrom, was sufficient to establish that Appellant, angry when Kevin was unable to obtain the money he owed to Appellant, acted in concert with other unidentified individuals to kidnap Kevin, Viet, and Voong; bind, gag, and transport them to the river; weigh them down; stab them repeatedly; and throw them in the river, resulting in the deaths of Kevin and Viet.
B. Admission of Cell Phone Records
Hearsay, defined as an out-of-court statement offered to prove the truth of the matter asserted therein, generally is inadmissible at trial, unless it falls within an exception to the hearsay prohibition. Herein, the trial court permitted the introduction of the cell phone records, admittedly hearsay, pursuant to the “business records” exception in Rule 803(6) of the Pennsylvania Rules of Evidence, which provides that a record of an act, event, or condition may be admitted under the following circumstances:
(A) the record was made at or near the time by−or from information transmitted by−someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a “business“, which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) with a statute permitting certification; and
(E) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
According to Appellant, the trial court erred in admitting the cell phone records because the Commonwealth failed to establish a sufficient foundation for their admission
The Commonwealth responds that Appellant has waived this claim by failing to raise at trial a contemporaneous objection to the custodians’ testimony. Commonwealth’s Brief at 22 (citing Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (failure to raise a contemporaneous objection waives claim on appeal)). It further notes that, while Appellant later offered an objection regarding the authentication of the identification of the individuals to whom the cell phone numbers belonged, see N.T. Trial, 11/15/16, at 69, and a general objection that the custodians of the records had not “authenticated these records to a point wherein this testimony would be admissible,” id. at 82, Appellant at no time raised a claim, as he does now, regarding who prepared the records or whether they were generated contemporaneously. Finally, the Commonwealth points out that, even if Appellant had not waived his claim, the claim is without merit because (1) Appellant’s own expert relied on the same cell phone records; and (2) all of the facts introduced via these records were established by independent sources − specifically, Voong’s testimony that
Not only does Appellant fail to offer a cogent argument as to how the trial court’s admission of the cell phone records was contrary to our decision in Carson, we conclude that Appellant waived his objection to the admission of the cell phone records by failing to lodge a specific objection at trial regarding his present challenge concerning the identity of the individuals who prepared the records, and the time they were prepared. See Commonwealth v. Cash, 137 A.3d 1262, 1275 (Pa. 2016) (where a defendant raises an objection before the trial court on specific grounds, only those grounds are preserved for appeal); Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot be raised for the first time on appeal).
C. Voir Dire
Appellant next contends that the trial court erred in prohibiting defense counsel from informing and questioning potential jurors about Appellant’s prior conviction for voluntary manslaughter in New York, which is equivalent to the crime of third-degree murder in Pennsylvania, in violation of his right to due process under the Sixth and Fourteenth Amendments to the United States Constitution,11 and Article I, Sections 6 and 9 of the Pennsylvania Constitution.12
The Sixth and Fourteenth Amendments guarantee a defendant the right to, inter alia, an impartial jury, and this right extends to both the guilt and sentencing phases of trial. Morgan v. Illinois, 504 U.S. 719, 727-28 (1992). In a capital proceeding, “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment . . . is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Id. at 728 (citations omitted). The high Court explained:
A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views.
To enable a capital defendant to enforce his [constitutional] right to an impartial jury, he must be afforded an adequate voir dire to identify unqualified jurors: “Voir dire plays a critical function in assuring the criminal defendant that his right to an impartial jury will be honored. Without an adequate voir dire, the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and
While this Court has explained that the scope of voir dire is within the sound discretion of the trial court, see Commonwealth v. Bridges, 757 A.2d 859, 872 (Pa. 2000), the United States Supreme Court has stated that the exercise of the trial court’s discretion, and the restriction upon inquiries at the request of counsel, are “subject to the essential demands of fairness.” Morgan, 504 U.S. at 730 (citation omitted). The high Court further held that, particularly in capital cases, “certain inquires must be made to effectuate constitutional protections,” including questions regarding racial prejudice, and questions as to whether a juror’s views on the death penalty would disqualify him from sitting, either because the juror’s opposition to the death penalty is so strong that it would prevent the juror from ever imposing the same,13 or because the juror would always impose the death penalty following a conviction. Id. at 730-33.
In denying Appellant’s request to specifically inform and question potential jurors about his prior conviction for manslaughter in New York,14 the trial court relied on this
In holding that the trial court did not err in prohibiting the appellant from posing those questions to the potential jury, we explained:
The purpose of voir dire is solely to ensure the empanelling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court. Neither counsel for the defendant nor the Commonwealth should be permitted to ask direct or hypothetical questions designed to disclose what a juror’s present impression or opinion as to what his decision will likely be under certain facts which may be developed in the trial of a case. “Voir dire is not to be utilized as a tool for
the attorneys to ascertain the effectiveness of potential trial strategies.”
Id. at 849 (citations omitted).
We concluded that the questions the appellant in Bomar sought to ask prospective jurors:
were intended to elicit what the jurors’ reactions might be when and if appellant presented certain specific types of mitigating evidence. The questions were simply not relevant in seeking to determine whether the jurors would be competent, fair, impartial and unprejudiced. Rather, the queries at issue sought to gauge the efficacy of potential mitigation strategies. Moreover, in the face of these inappropriate questions, the trial court asked appropriate general questions which revealed that the jurors in question would consider all the evidence, both aggravating and mitigating, and follow the court’s instructions.
Initially, Appellant attempts to distinguish Bomar on the ground that the existence of his own prior conviction for voluntary manslaughter:
was not a fact that might be developed from the penalty phase. Rather, it was a virtual certainty since neither party disputed its existence. Further, trial counsel’s request for [voir] dire on this fact was not an effort to learn what the prospective jurors’ decisions would be when confronted with it. Rather, Appellant merely sought to identify potential jurors who would fail to keep an open mind or consider any additional evidence and instead automatically vote for death upon learning of this fact.
Appellant’s Brief at 20.
Appellant fails to acknowledge, however, that, subsequent to Bomar, this Court rejected this same argument in Commonwealth v. Smith, 131 A.3d 467 (Pa. 2015). In Smith, the appellant claimed the trial court denied him due process and the right to a fair and impartial jury when it prohibited him from posing the following question to the potential jury: “You will hear that [the defendant] was convicted, by plea of guilty, to the crime of
Then Justice, now Chief Justice, Saylor filed a dissenting opinion in Smith, joined by this author, wherein he observed that the federal district court in United States v. Johnson, 366 F. Supp. 2d 822 (N.D. Iowa 2005), distinguished between “1) case-specific voir dire questions designed to determine whether jurors harbor some bias relative to critical facts to be demonstrated by trial evidence, and 2) interrogatories seeking to pre-commit jurors to a particular verdict.” Smith, 131 A.3d at 479 (Saylor, J., dissenting). The Johnson Court suggested that case-specific questions might be necessary under the Constitution to ensure that a defendant has a fair and impartial jury. Concluding that the Smith majority “appears to implicitly reject Johnson’s approach to case-specific questions” based on Bomar, Chief Justice Saylor opined that Bomar’s rationale “applies only to pre-commitment-type interrogatories . . . and not to case-specific questions appropriately framed to inquire into juror biases relative to critical facts.” Id. He further stated that he “would follow the lead” of the California Supreme Court in People v. Cash, 50 P.3d 332 (Cal. 2002), which held that an absolute prohibition of case-specific questions regarding a previous homicide during life qualification “created a risk that a juror who would automatically vote to impose the death penalty on a defendant who had
In his brief to this Court, Appellant does not mention, let alone discuss, the majority opinion in Smith, nor does he suggest that Smith should be overturned. He merely asserts that “[a] number of other jurisdictions” have recognized that the type of question he sought to ask “is essential to satisfying Morgan’s requirement of an impartial factfinder,” citing Johnson, Cash, and the dissent in Smith, and urges this Court to adopt their rationale, and grant him a new penalty hearing.16 Appellant’s Brief at 20. We decline his invitation to do so.
As discussed above, this Court in Smith held that the appellant’s proposed question was impermissible under Bomar, as it was “a question designed to elicit what the jurors’ reactions might be when presented with a specific aggravating circumstance.” Smith, 131 A.3d at 477. While Appellant relies on the dissent in Smith, that position was
It is not this Court’s function to act as an advocate for the parties. See Commonwealth v. Capitolo, 498 A.2d 806, 811 (Pa. 1985) (“We require strict compliance with the procedures designed for issue preservation to save judicial manpower, and to prevent our appellate courts from becoming advocates for parties instead of adjudicators of the issues they present for our review.”). Moreover, even if Appellant had presented sufficient argument on the issue, we find no basis upon which to overturn Smith. Under the venerable doctrine of stare decisis, “for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.” Commonwealth v. Moore, 103 A.3d 1240, 1249 (Pa. 2014) (citation omitted). Stare decisis serves an important role by “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.” Id. As discussed above, the majority in Smith held that the appellant’s proposed question was impermissible under Bomar. Smith, 131 A.3d at 477. Although Appellant and Justice Wecht prefer the approach of the dissent in Smith, that position was rejected by a majority of this Court. Further, while, as a general matter, we take no issue with Justice Wecht’s statement that this Court may “abandon precedent when time and experience reveal its infirmity,” we observe that Smith was decided less than five years ago, and neither Appellant, nor Justice Wecht, suggests that our experience with Smith has revealed it to be unworkable, or that the decision is otherwise
D. Prosecutor’s Questions Regarding Witness’s Knowledge of Appellate Process
Appellant next argues that the trial court erred in denying his request for a mistrial during the penalty phase of his trial after the prosecutor asked an expert defense witness if she was aware of the length of the appellate process. In his effort to obtain a life sentence instead of the death penalty, Appellant presented the testimony of Dr. Annie Steinberg, an expert in child psychology and development, who testified regarding Appellant’s relationship with his children. Specifically, Dr. Steinberg testified that Appellant was a central part of the children’s lives, and played an active part in the family, notwithstanding his incarceration. During cross-examination, the prosecutor asked Dr. Steinberg if she was aware that the same visitation procedures applied to both capital and non-capital prisoners. N.T. Trial, 12/2/16, at 50-51. The prosecutor then asked Dr. Steinberg if she was aware that, before a death warrant gets signed by the Governor, the appellate process generally takes approximately ten years. Id. at 52. Defense counsel objected, and the trial court sustained the objection. Id. at 52, 55. Appellant presently argues that the only “possible purpose [of the prosecutor’s comment on the appellate process] was to instill a sentiment among the jurors that they were less responsible for their sentencing decision,” in violation of case law which prohibits the same. Appellant’s Brief at 22.
In response to Appellant’s argument, the Commonwealth asserts that Appellant waived this claim by failing to raise it before the trial court. The Commonwealth notes that, while Appellant requested a mistrial on December 5, 2016, the request was not based on the prosecutor’s question regarding the length of the appellate process, but, rather, was based on the prosecutor’s alleged misstatement of the regulations concerning
As discussed above, where an appellant raises an objection before the trial court on specific grounds, only those grounds are preserved for appeal. As Appellant did not request a mistrial based on the prosecutor’s commentary regarding the length of the appeals process, this claim is waived. See Cash, 137 A.3d at 1275;
E. Prosecutor’s Statements Regarding Mitigating Circumstances
Appellant next claims that he was deprived of a fair penalty phase trial, and is entitled to a new penalty trial, because the prosecutor, on two separate occasions, misstated the law regarding the weighing of aggravating and mitigating circumstances. The first alleged instance occurred at the beginning of the prosecutor’s closing argument to the jury, wherein she stated, “If you find that we’ve proven a single aggravating factor, one single aggravating factor, your sentence must be death. Unless and until the defense proves a mitigating factor, at which point you must weigh the two and decide which outweighs the other one.” N.T. Trial, 12/6/16, at 139. Appellant maintains that “[t]hese remarks mislead the jury as to their starting point in deliberations, thereby irreparably tainting any subsequent verdict.” Appellant’s Brief at 22.
The Commonwealth concedes that the above statement was incorrect because the prosecutor did not convey that a jury’s finding of a single aggravating circumstance requires a sentence of death only when the jury finds no mitigating circumstances. Commonwealth Brief at 38. However, the Commonwealth maintains that the Appellant’s claim that he was deprived of a fair penalty trial is both waived and meritless. We agree.
Appellant argues that the prosecutor subsequently “compounded” her prior error by “informing the jury that it was defendant’s burden to prove that mitigating circumstances outweighed any aggravating circumstances.” Appellant’s Brief at 23. In commenting on the lack of “real” mitigation evidence presented by Appellant, the prosecutor stated, “It’s what we call the catchall. The catchall. Which has to do with the defendant; which has to do with the circumstances of the offense, the defendant’s record, and his character. That’s what they are proposing is enough to outweigh, to outweigh all of the aggravators.” N.T. Trial, 12/6/16, at 147. Defense counsel again immediately lodged an objection, which was sustained by the trial court. The trial court further instructed the jury that “[t]he mitigators do not have to outweigh the aggravators. Sustained.” Id.
Once again, because defense counsel lodged an immediate objection to the prosecutor’s misstatement, which was sustained by the trial court, and defense counsel did not request a mistrial or further curative instructions, the issue has been waived. Jones, 460 A.2d at 741.
F. Exclusion of Portion of Decedent’s Family’s Victim Impact Statement
Prior to the Commonwealth’s presentation of its penalty-phase case, and while otherwise seeking to introduce victim impact statements by members of Kevin’s and Viet’s family, the Commonwealth moved to exclude a portion of two identical statements wherein the family did not express a preference as to whether Appellant would receive a life sentence or a death sentence, so long as he was never released from prison. In this regard, each statement provided:
In the interests of justice and the safety of our community, I’m asking that you please see it that the defendant never again be able to take the life of any other persons; that he be given the death penalty, or at least jailed for two life sentences, to be served one after the other. He should never again walk among us as an equal, free man.
N.T. Trial, 12/5/16, at 11-12. Appellant objected to the exclusion of these portions of the statements, which, according to Appellant, “would have constituted a powerful reminder to the jurors to keep an open mind and consider both life and death.” Appellant’s Brief at 24.
In granting the Commonwealth’s request to exclude the above-quoted portions of the victim impact statements, the trial court determined that the proffered statements were outside the scope of permissible victim evidence. We find no error by the trial court in this regard. Victim impact evidence consists of “evidence concerning the victim and the impact that the death of the victim has had on the family of the victim.” Bomar, 826 A.2d at 850 (citations omitted). In the case sub judice, the proffered testimony did not pertain to any characteristic of the victims, or the impact of their death on their families. Moreover, we specifically held in Bomar that “evidence that a member of the victim’s family is opposed to the death penalty is irrelevant under Pennsylvania’s capital sentencing scheme,” as it is unrelated to the defendant’s “character or record or the circumstances of the crime.” Id. at 852. Accordingly, Appellant is not entitled to relief on this claim.
G. Challenges to Pennsylvania’s Death Penalty Statute
Next, Appellant raises two challenges to Pennsylvania’s capital sentencing statute,
In Apprendi v. New Jersey, 530 U.S. 466, 494 (2000), the United States Supreme Court held that any fact that increases a defendant’s sentence beyond the statutory maximum authorized for a defendant’s crime is an element that must be submitted to the jury. This requirement extends to capital punishment. See Ring v. Arizona, 536 U.S. 584, 608 (2002) (concluding that Arizona’s capital sentencing scheme violated Apprendi because it allowed a judge, as opposed to a jury, to find the facts necessary to sentence a defendant to death). Subsequently, in Alleyne v. United States, 570 U.S. 99, 112 (2013), the high Court held that Apprendi “applies with equal force to facts increasing [a] mandatory minimum.”
Section 9711(a)(1) of Pennsylvania’s capital sentencing statute requires that, following a conviction for first-degree murder, a separate hearing be conducted “in which the jury shall determine whether the defendant shall be sentenced to death or life
Finally, Section 9711(c)(1)(iv) allows for a sentence of death only where the jury finds at least one aggravator and no mitigators, or finds that the aggravators outweigh the mitigators. It is this subsection on which Appellant bases his argument that the capital sentencing scheme is unconstitutional because it does not require that “all factual determinations implicit in capital sentencing, including those regarding the relative weight of aggravating and mitigating circumstances,” be established beyond a reasonable doubt. Appellant’s Brief at 28 (emphasis added). This Court, however, has repeatedly rejected this argument.
In Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005), the appellant similarly argued that Pennsylvania’s death penalty statute violates the Sixth and Fourteenth Amendments because it does not require the jury to find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. We denied relief, noting that “this Court has consistently rejected the argument that the Pennsylvania death penalty statute is invalid because it imposes no standards by which a jury can weigh aggravating and mitigating circumstances.” Id. at 361 (citing Commonwealth v. Bronshtein, 691 A.2d 907 (Pa. 1997), and Commonwealth v. Zettlemoyer, 454 A.2d 927 (Pa. 1982)).
Subsequently, in Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013), the appellant raised the identical argument raised in Roney, but asked this Court to reconsider our holding in Roney in light of the decision of the Sixth Circuit Court of Appeals in United States v. Gabrion, 648 F.3d 307 (6th Cir. 2001), where an analogous
Most recently, in Commonwealth v. Wholaver, 177 A.3d 136, 172 (Pa. 2018), we rejected the appellant’s claim that a trial court is required to instruct a jury that, in order to sentence a defendant to death, it must determine that the aggravating factors outweigh mitigating factors beyond a reasonable doubt, citing our decisions in Roney and Sanchez.
Appellant, however, suggests that our holding in Wholaver was incorrect because it relied on Roney and Sanchez, both of which pre-date the United States Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016). According to Appellant, the high Court in Hurst “clarified for the first time that, where the weighing of facts in aggravation and mitigation is a precursor to a death sentence, the Sixth Amendment requires the State to prove, to a jury, beyond a reasonable doubt, that aggravating circumstances outweigh mitigating circumstances.” Appellant’s Brief at 25 (citing Hurst, 136 S.Ct. at 621-22). Appellant misreads Hurst.
In Hurst, the appellant challenged the constitutionality of Florida’s capital sentencing scheme, which provided for a recommendation regarding death by a penalty-phase jury, but required a separate hearing by a judge to determine whether sufficient aggravating circumstances existed to justify imposition of the death penalty. In holding
The analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s. Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find these facts. . . . Although Florida incorporates an advisory jury verdict that Arizona lacked, we have previously made clear that this distinction is immaterial: “It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.”
Hurst, 136 S.Ct. at 622 (citations omitted).
In response to an argument by the State that the mere recommendation by a jury of a death sentence “necessarily included a finding of an aggravating circumstance,” thus satisfying Ring, the Court stated:
The State fails to appreciate the central and singular role the judge plays under Florida law. As described above and by the Florida Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until “findings by the court that such person shall be punished by death.” Fla. Stat. § 775.082(1) (emphasis added). The trial court alone must find “the facts … [t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” § 921.141(3). . . . The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.
Hurst, 136 S.Ct. at 622 (emphasis original).
The Hurst Court determined that Florida’s capital sentencing scheme violated the Sixth Amendment because it required a judge, as opposed to a jury, to make the critical findings needed for the imposition of a death sentence. Hurst did not, contrary to
In light of our rejection of Appellant’s argument that a jury is required to determine that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt, his derivative argument that the trial court’s failure to instruct the jury in accordance with this principle violated his rights under the federal and Pennsylvania Constitutions also is without merit.
In his second challenge to Pennsylvania’s death penalty scheme, Appellant contends that the death penalty is administered in an “arbitrary and capricious” manner, in that it is “no longer reserved for the worst offenders culpable of the most serious offenses but, rather, in large part, is imposed on defendants who refuse to offer, or accept, a life plea.” Appellant’s Brief at 29. According to Appellant, use of the death penalty as a “bargaining chip” to secure a defendant’s plea of guilty does not further the traditional “retributivist view” of punishment, but instead has a “perverse impact on the criminal justice system,” in that it increases the possibility that an innocent defendant will plead guilty to avoid a potential capital sentence, and increases the possibility that individuals sentenced to death are actually innocent. Id. at 35-36. Appellant also suggests that many of the individuals who choose to go to trial instead of pleading guilty, and who may ultimately be sentenced to death, are “too encumbered by mental illness, intellectual limitations, or too immature to offer or accept a plea to life without parole.” Id. at 39. In support of his arguments, Appellant relies on numerous surveys from other states, and various newspaper, magazine, and law review articles.
The Commonwealth responds that Appellant waived his claim by failing to present any of the authority on which his claim is based to the trial court. The Commonwealth
H. Statutory Review of Death Sentence
Finally, although Appellant does not raise the issue in his brief, this Court is statutorily required to conduct an independent review to determine (1) whether the sentence of death was the product of passion, prejudice, or any other arbitrary factor; or (2) if the evidence fails to support the finding of at least one aggravating circumstance listed in
As the jury found that the aggravating circumstances outweighed the mitigating circumstance, Appellant’s sentences comply with the statutory mandate for the imposition of a sentence of death. See
For all of the above reasons, we affirm Appellant’s convictions and sentences of death.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Mundy join the opinion.
Notes
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.
Id. at 170 n.7.[T]he State may challenge for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant’s guilt or innocence. Ipso facto, the State must be given the opportunity to identify such prospective jurors by questioning them at voir dire about their views of the death penalty.