*1 131 but as an court making recommendations “master” certification, is and the decision to make the authorized official interlocutory.3 not “final” legislature considerations, I believe of all these light certi- an individual providing in specifically purposefully
acted right with a involuntary treatment needing continued fied as a agency to the a similar review, extending not while to seek I Thus order. discharge of a review right similar seek Court. Superior of the the order affirm would joins. FLAHERTY Justice Chief A.2d Pennsylvania, Appellee, COMMONWEALTH
v. LOPEZ, Appellant. George Ivan Pennsylvania. Supreme Court of 21, 1998. Argued Oct. 1, 1999.
Decided Oct. Reargument Nov. 1999. Denied J.S., majority explain fails to Beyond problematic on this reliance agency appeals dis- from the de novo review it accords whether specified review as from the charge orders is the same or different petitions subject to treatment for review person made Act where 7303(g). §P.S. See 50 of a certification. *7 Eugene R. Mayberry, Slatington, Lopez. for G. Racines, Allentown,
Theodore Graci, Robert A. Harrisburg, for Com. CAPPY, C.J., ZAPPALA, FLAHERTY, and
Before SAYLOR, JJ. CASTILLE, NIGRO, and NEWMAN OPINION NIGRO, Justice. Ivan 19, George 1996, jury found March a
On Bolasky David and murder of first-degree of the Lopez guilty co- jointly with had been tried charges.1 Appellant related first- Romero, also of the who was convicted Edwin defendant sentencing Bolasky. Following murder David degree circumstances aggravating that two hearing, found in con- circumstances had been established mitigating no murder Mr. with Appellant’s participation nection of death jury returned a verdict Bolasky.2 Accordingly, the 17, 1996, formally the trial court April against Appellant. On This direct against death Appellant. sentence imposed below, we affirm followed.3 For the reasons discussed appeal of sentence. judgment establishes of this the record below purposes appeal, For 1995, 3, On David following January relevant facts. architect, to an Allentown build- Bolasky, apartment an went Shortly rent from his tenants. that he owned to collect ing beaten, robbed, there, arrival Mr. after his apartment to death the third floor strangled inside police Bolasky’s found Mr. building. January On down, out, in an wiped van had inside and van. The been Later that fingerprints. latent same effort to eliminate body, wrapped in Bolasky’s Mr. frozen day, police found *8 sheets, in along in a road Allentown. bed the woods secluded Bolasky’s unraveling containing sheets Mr. Upon the bed first-degree of to his for the murder David 1. In addition conviction 3901(a)(l)(i); robbery, § Bolasky, Appellant convicted of 18 Pa.C.S. was theft, 3921(a); receiving property, § stolen 18 Pa.C.S. 18 Pa.C.S. 3925; § conspiracy, § 18 Pa.C.S. 903. and criminal following aggravating had been found that the circumstances 2. The first, Bolasky testifying prevent was killed to his established: David second, 9711(5); § the murder against Appellant, 42 and Pa.C.S. 9711(6). felony, § during of a 42 Pa.C.S. perpetration committed 9711(h), jurisdic- § to 42 this Court has automatic 3. Pursuant Pa.C.S. judgment a sentence of death. court’s of tion to review trial body, the police discovered that his wrists and ankles had addition, been hog-tied together. the twisted towel that Mr. Bolasky’s strangle murderers used to him to death was found still wrapped around his neck. An autopsy revealed Bolasky that Mr. in had been hit the head with a blunt instrument prior being strangled, and defensive wounds on Bolasky’s found Mr. arms indicated that he struggled had to defend himself against the individuals who had attacked and murdered him. murder,
Several weeks after the Appellant’s nephew, Miguel Moreno, made statements to police himself, incriminating Appellant, Edwin Romero George Barbosa in robbery and murder of Mr. Bolasky. Based on largely Miguel More- statements, no’s the police obtained a warrant for 21, 1995, arrest. On January the police found in Appellant Orlando, arrest, Florida.4 At the time of his Appellant was in hiding discovered a closet with clothes on piled top of him. arrest, Following gave his he several statements police. to the Although Appellant initially denied in involvement robbery and murder of Mr. Bolasky5, each of his successive police attempted While the Appellant locate and arrest and his cohorts, ongoing investigation their Bolasky into the murder of Mr. yield important continued linking Appellant evidence to the crime. instance, police For nephew Appellant's discovered that a named watch, Santiago pawned ring, Carlos a gold a man’s and two chains at pawn shop Jersey City, Jersey, just New days three after the Bolasky. police murder of Mr. While the were unable to recover the ring gold Santiago pawned, they chains which were able to watch, Bolasky positively recover which Mrs. having identified as belonged to her late husband. Orlando, days 5. Four Appellant after his arrest in by was interviewed Joseph Detectives Hanna and Samuel Solivan of the Allentown Police interview, Department. Appellant At that having any knowledge denied Bolasky of the murder and insisted that he wasn’t even in Allentown on the date that the murder occurred. was extradited to Penn- sylvania shortly after his interview with Detectives Hanna and Solivan. Following Pennsylvania, Appellant complained arrival shoul- pain der police hospital and was taken ato to have his shoulder examined. While hospital, Appellant he was at the told the officers accompanying away him that he was 1300 miles from Allentown at the murder, time of the and that he had a notarized letter from Indeed, Moreno which would completely. exonerate him police letter, Moreno, purportedly found a Appellant’s jail from cell in Florida falsely which stated that Moreno had accused *9 crime, and to the him closer police placed to the statements circum- particular of the knowledge more intimate a evidenced surrounding killing.6 stances Romero Edwin trial with co-defendant joint jury trial, Moreno testi- 7, Miguel 1996. At on March commenced and Barbosa 3, 1995, Romero January Appellant, that on fied landlord, Bolasky, Mr. Moreno’s and murder to rob planned to According rent from his tenants.7 he collected the after Mr. plan initial rob group’s testimony, Moreno’s adjoining alleyway in in an him the head Bolasky, then shoot However, men went when the building. apartment arrival, Bolasky’s Mr. to await apartment third-floor Moreno’s instructed and instead plan, their former abandoned they by offering up apartment to his Bolasky to lure Mr. Moreno Barbosa Romero and rent, Appellant, which time at pay rob him.8 would Joseph spoke to Detectives Hanna when he
participating in the murder letter, however, to be a was later determined The and Samuel Solivan. fact, Pennsylva- Appellant was extradited at the time that fraud. Solivan, Florida, much even met Detective Moreno had never nia from Bolasky. Appellant, on the of Mr. spoken to him about murder less hand, Solivan while he spoken Hanna and with Detectives other had Florida, given copy both and had been was incarcerated in business cards. detectives’ instance, February Pennsylvania, on following his extradition to 6. For 1995, they 5, were all that he knew that Appellant told Detective Hanna murder, knew and that he with the guilty to some extent connection did, time, it wouldn’t be but for what he he would have to do some 10, 1995, later, agreed to a February days on Five much. During of that the course videotaped with Detective Hanna. interview interview, in Allentown on Hanna that he was Appellant told Detective Moreno, Barbosa, 1995, date, 2, and Romero January on that and that alleyway adjoining his Bolasky plan to rob Mr. hatched a day. Appellant having building following denied apartment January robbery, that on but told Detective Hanna part in the Barbosa, they and killed told him that had robbed Romero and Moreno apartment. Bolasky Mr. in Moreno’s Roman, Bolasky’s build- Nancy the first-floor tenant in had 7. Moreno coming to collect rental ing, Bolasky to make sure that he was call Nancy he lived with day. Roman because payments that Moreno knew sister, Liselte Roman. her Roman, Nancy the first-floor Apparently, were afraid that the men tenant, they gunshots if robbed and shot Mr. hear the would building. alleyway adjoining apartment instructed, Moreno testified that he did as he was informing *10 Mr. Bolasky money that he had in rent to pay him. $700 gave Bolasky Moreno Mr. approximately and told him $350 that the rest of the in money up his Mr. apartment. Bolasky immediately Moreno, made out a rent receipt for and then him up followed to his to collect apartment the balance of money. rent Unbeknownst to Mr. Bolasky, Romero and lying Barbosa were in wait for him in the bathroom of Meanwhile, apartment. Moreno’s Appellant sat on Moreno’s sofa, feigning Bolasky’s indifference to Mr. arrival pre- and tending to watch television. Moreno,
According apartment he left his as soon as Mr. Bolasky entered it. Moreno testified that he explained his sudden departure Bolasky by Mr. him that telling he had to get change for a bill. Moreno actually went downstairs $100 Roman, the first floor apartment Nancy where he engaged Nancy and Lisette Roman in in conversation order to keep them from going upstairs and inadvertently interrupting robbery. later, Approximately twenty minutes Moreno went back to his up apartment to see what was happening. When Moreno knocked on apartment, the door to his Appel- in, lant would not let him him and told that he not did want to happened see what had inside. Moreno testified that he went later, back downstairs and a few minutes saw Romero and Barbosa Mr. carrying Bolasky’s body, tied wrapped and bed sheets, down the stairs of apartment building. Moreno also testified that he saw Appellant sitting the driver’s seat of Mr. Bolasky’s white van out in front of apartment building, and watched as Romero Barbosa body and threw the into the van. Appellant, While Romero and Barbosa drove off with Mr. Bolasky’s body, Moreno went back toup apart- ment and attempted Bolasky’s to clean Mr. blood off of his floor.9 Physical evidence introduced the Commonwealth at trial corrobo- instance, large portions testimony. rated of Moreno’s For the Com- presented photographs monwealth Bolasky’s which confirmed that Mr. body sheets, hog-tied had wrapped just been and in bed as Moreno’s addition, testimony indicated. the Commonwealth introduced into Appellant’s evidence at receipt $700 trial the rent that Moreno testified trial. Prior to also testified at
George Barbosa trial, concerning confession gave tape-recorded Barbosa Bucarey Bolasky Captain murder of Mr. his role confession, In his Prosecutor’s Office. County the Somerset Romero Moreno in the Appellant, implicated Barbosa also specifically of the murder. Barbosa and execution planning bathroom and Romero hid inside Moreno’s indicated that he he, arrived, Mr. at which time Bolasky until him. also confessed robbed and assaulted Barbosa Romero string, Mr. neck with a attempted Bolasky’s that he to break failed, wrapped he a towel around Mr. and that when that turns with and Romero Bolasky’s neck and took Barbosa stated that twisting it until Mr. was dead. sheets, Bolasky’s body in carried it they wrapped Mr. bed *11 Barbosa, stairs, Bolasky’s it in Mr. van. placed down the and Lehigh to a area of Appellant and Romero then drove desolate Following County, dumped body, the and abandoned the van. confession, a life guilty his Barbosa and received sen- pled tence. trial,
On the witness stand at Barbosa testified gave pistols, Appel- that he two .38 caliber and that Appellant lant told him to hide in the bathroom until Moreno lured go Bolasky Mr. to the When Mr. entered Bolasky up apartment. the Barbosa came out of the bathroom and saw apartment, hit Mr. on with one of the .38 Appellant Bolasky the head then Barbosa some and told him pistols. Appellant gave rope killed, that Mr. had to be or else Moreno would end Bolasky jail assault. told up going robbery Appellant to for the and put rope Bolasky’s Barbosa to the around Mr. neck and stran- strangle complied, him. Barbosa but when he tried to Bolasky just made out to him before he was robbed and killed. The Mr. corroborating presented Mor- Commonwealth also testimonial evidence testimony leading up Bolasky’s concerning eno's to Mr. events. instance, Nancy More- murder. For Roman's corroborated taking place. no’s account of his activities while the murder was Nancy shortly Bolasky at Roman testified that before Mr. arrived his 3, 1995, January Appellant apartment building Moreno told her that on apartment. hanging upstairs and two of his friends were out in his addition, Nancy Bolasky Roman testified that Moreno asked her to call Januaty coming up to pick on 1995 to make sure he was rent that day. At that Bolasky rope, point, Mr. with the it broke. gle go him to to the Appellant Barbosa testified that ordered strangle else with which to Mr. get something kitchen to with which to stab him in the Bolasky, get something and to him returned screaming. from Barbosa stop neck order knife, unsuccessfully with a towel and a small kitchen and throat with the knife. Barbo- Bolasky’s to cut Mr. attempted neck, Bolasky’s Mr. the towel around wrapped sa then turns the towel until Mr. twisting and Barbosa took Appellant Bolasky was dead. dead, Bolasky Appellant
Barbosa testified that once Mr. wallet, his Bolasky’s pockets Mr. and took his through went band, van. jewelry, keys and the to his wedding Bolasky’s body up, Mr. proceeded and Barbosa to tie While Barbosa wrapping it in bed sheets. finished wrapped got Bolasky’s went and Mr. van. up body, Appellant stairs, body dragged Barbosa testified that he down off with of it. dispose it the van and drove put van, body, Appellant parked wiped they dumped After might have made inside the away any fingerprints they keys. Mr. briefcase and away Bolasky’s van and threw that, testified while he was incarcerated at Barbosa further Prison, got him and Lehigh County Appellant approached on him a fictionalized account of their activities agree upon (i.e., day get that Mr. was murdered their According agreed-upon story, Ap- to their straight). stories *12 robbery Barbosa were not involved in the actual pellant and but involved after Bolasky, only and murder of Mr. became in disposing body. for their of the help Moreno asked Noticeably testimony Appellant’s absent from Barbosa’s at concerning Rome- joint any testimony trial with Romero fact, in In killing. flatly ro’s the Barbosa refused participation in concerning Romero’s involvement any questions answer the fact that his earlier confession to killing, despite in both the Captain Bucarey squarely implicated Romero of As a planning robbery/murder. and the consummation court, result, in judge contempt the trial held Barbosa and request Captain Bucarey Commonwealth’s to have granted of Barbo- portions transcript into the record those of the read in implicated confession that Romero tape-recorded sa’s Bolasky.10 commission of the murder of Mr. in Lehigh County was incarcerated Prison
While trial, an a awaiting developed acquaintanceship he with fellow Romero, Appellant’s inmate named Daniel co- prison Lopez. defendant, Lopez’s as Daniel cell- up being assigned ended Romero, con- Eventually, Appellant, mate. and even Barbosa so, in Lopez degree, doing fided Daniel to some and robbery in the commission of implicated themselves Thereafter, Bolasky. Lopez reported murder of Mr. Daniel incriminating police. this information to the Appellant’s Daniel testified a bifurcated fashion at Lopez against Appellant, against trial—first and then Romero. Dan- iel testified that had shown him a Lopez newspaper told him that concerning Bolasky .article murder and had (Mr. he hit that man him out. Bolasky) once and knocked him According Lopez, Appellant to Daniel also told that he get away very could with the murder because he was knowl- edgeable Finally, Lopez the law. Daniel testified that Appellant wrote out a on day statement about his activities gave give of the murder and it to Romero to to him with instructions to translate it into Spanish for Romero read.11 Lopez Daniel testified that the letter by Appellant written said murder, day that on the of the Appellant and several “other guys” went pizza to the near Moreno’s build- shop apartment ing. Appellant met Moreno at the pizza shop, but Moreno left and, later, pizza shop few minutes started with arguing presented 10. It should be noted that the Commonwealth substantial testimony portions evidence that corroborated Barbosa’s and those his confession that were read into the record at trial. For instance, presented Bolasky’s the Commonwealth evidence that Mr. sheets, body hog-tied wrapped was found in bed with a twisted addition, towel around his throat. the medical examiner who performed autopsy on Mr. confirmed that he sustained a death, shortly blow his head before his and that the ultimate cause strangulation by ligature. Finally, death was Barbosa’s cor- roborated, by, testimony. and was corroborated Moreno’s earlier According Lopez’s testimony, to Daniel Romero was unable to read English. or write in *13 146 testimo- Lopez’s to Daniel According street.
someone
the
pizza
came back to the
said that Moreno then
ny, the letter
a
Appellant
go get
asked
keys
a
of car
and
with
set
shop
building.
to the front of the
it around
bring
white van and
a
that Moreno had
guys”
Appellant
told
of the “other
One
help
Appellant
needed
with.
which he
body
apartment
body in
put
Moreno
the
guys” helped
the “other
and one of
van,
body.12
dumped
off and
the
they
and
drove
sufficiency of
challenge
does not
[1—3] While
in which a
evidence,
all cases
required
this Court is
review the
independently
imposed
sentence has been
death
has estab
whether the Commonwealth
record to determine
for first-
to sustain a conviction
necessary
the elements
lished
500 Pa.
Zettlemoyer,
v.
murder. See Commonwealth
degree
denied,
(1982),
16,
3,
937,
n.
cert.
461 U.S.
n.
454 A.2d
942
3
26
denied,
(1983),
2444,
463
970,
reh’g
L.Ed.2d 1327
103 S.Ct.
77
(1983).
1236,
31,
1452
In conduct
77 L.Ed.2d
U.S.
104 S.Ct.
evidence,
all reason
review,
we must view
ing such
therefrom, in
most favorable to
light
able inferences drawn
whether
as
winner to determine
verdict
the Commonwealth
every
proven
of the crime was
find that
element
could
Michael,
v.
a reasonable doubt. See Commonwealth
beyond
(1996).
1044,
105, 109-12,
1047
To obtain a
674 A.2d
544 Pa.
murder,
must
the Commonwealth
degree
conviction for first
acted
the defendant
beyond a reasonable doubt
prove
kill,
being
a human
was unlawful
intent to
specific
with a
killed,
killing,
committed the
that the defendant
ly
18 Pa.C.S.
with deliberation. See
killing
was committed
271, 281,
Rios,
684
2502(a), (d);
v.
546 Pa.
§
Commonwealth
denied,
1231,
1025,
(1996),
520
117 S.Ct.
cert.
U.S.
A.2d
(1997).
kill can
specific
The
intent to
The
that trial counsel was
presumes
law
Appellant
proving
has the burden of
otherwise. Com
Baez,
66, 110-12,
711,
v.
554 Pa.
720 A.2d
monwealth
(1998). In
to prove
order
that he was rendered ineffective
counsel, Appellant
assistance of trial
must demonstrate that
merit,
underlying
arguable
claim is of
that his counsel had
did,
no reasonable basis for
as he
and that he was
proceeding
(i.e.,
prejudiced by his counsel’s ineffectiveness
there is
probability
proceedings
reasonable
the outcome of the
ineffectiveness).
would have been different but for counsel’s
Craver,
22,
17,
691,
Pa.
See Commonwealth v.
688 A.2d
(1997) (citations omitted);
Howard,
693-94
v.
Commonwealth
93,
(1994).
1300, 1304
538 Pa.
645 A.2d
trial, Lehigh
At the time of
its
County
jury
drew
pool from the list of
in
county.13 Appel-
licensed drivers
Although Appellant
argue
Lehigh County’s
does not
method for
4521(a),
selecting
jury
§
pool
statutory
its
violates 42 Pa.C.S.
governing
jury pools
Pennsylvania
section
courts,
the selection of
state
Lehigh County's
a review of the section nevertheless reveals that
selecting
pool
statutorily
jury
permissible.
method for
4521(a)
its
is
Section
that,
voters,
preparing
prospective
states
a master list of
registration
county,
"[t]he list shall contain all voter
lists for the
which
reference,
may
incorporated
lists
be
from
other lists
or names
such
opinion
provide
which in the
of the commission will
a number of
jurors
prospective
equal
greater
is
which
to or
than the number of
4521(a).
registration
§
names contained in the voter
lists.” 42 Pa.C.S.
that,
County’s
question
Lehigh
does
not
the fact
violated his Sixth
this selection method
lant claims
him
trial because it left
impartial jury
to an
right
Amendment
a fair cross-section of
represent
that did not
jury panel
with a
contends that
at
community
large. Specifically,
drawing
jury pool systemat-
for
its
County’s method
Lehigh
are not
service those individuals who
from
ically excludes
elderly,
drive,
portions of the
large
which includes
licensed
handicapped.14
and the
poor
greater
pro-
selecting
jury pool provided a
number of
for
its
method
county’s
registration
jurors
voter
spective
than were contained in the
Lehigh County
According
affidavits of the
Administrative
list.
to the
Chief Clerk to the Board of the
Operations Officer and the
Court
(which
Lehigh County
Registration
Election and
Commission
as exhibits A
appended
has
to their brief to this Court
Commonwealth
*15
B),
Appellant's trial in March of 1996 there were
and
at the time of
forty
thirty
thousand more individuals on
between
and
somewhere
jury
County’sjury pool
than there would have been had the
Lehigh
list
registered
in
simply
individuals
to vote
the
pool
consisted of those
list
County’s
selecting
jury pool
county. Accordingly, Lehigh
method for
its
4521(a).
§
statutorily permissible pursuant to 42 Pa.C.S.
addition,
County's jury pool
argues
Lehigh
selec-
In
by jury representing a fair
right
his
to be tried
a
tion method violated
community
improperly conditions the
of the
because it
cross-section
jury
privilege
obtaining a
to drive
right
on a
on the
of
license
to serve
claim was raised
the defendant
an automobile. An almost identical
Cameron,
165,
Pa.Super.
Here, Appellant completely fails to make out the sec prong prima ond of the facie case set forth in Duren as he offers no statistical absolutely proof elderly, that the poor, or the handicapped unfairly represented are in Lehigh Coun ty’s jury pool in relation to the number of such persons in the community. Appellant does attempt not to establish what percentage of the population Lehigh County elderly,'the poor, constitute, handicapped nor does he offer *16 objective indication any of groups these are under-repre in sented relation to their total in community. numbers Accordingly, has Appellant not made out a prima facie case of a Sixth Amendment violation under Duren. Because Appel lant has to failed show that his underlying claim of a Sixth merit, Amendment fair cross-section arguable violation has his trial counsel cannot be deemed to have him rendered ineffec tive by assistance to failing object Lehigh to County’s method for selecting jury Pierce, its pool. See Commonwealth v. 537 514, 524, (1994)(counsel 189, Pa. 645 A.2d 194 cannot be considered failing pursue ineffective for to a meritless Durst, claim)(citing 2, Commonwealth v. 522 Pa. 559 A.2d 504 150 212, Pursell, 183 508 Pa. 495 A.2d
(1989); v. Commonwealth (1985)).15 error, that his argues of Appellant
In his claim second locate, contact and failing for to counsel was ineffective trial disagree. at trial. We testify to his alibi witnesses call certain ineffective that his trial counsel was In to prove order on his testify and call alibi witnesses failing for to locate 1) behalf, that: the witnesses must demonstrate Appellant 2) available; was aware of the counsel and were existed witnesses, of their or should have known existence 3) were witnesses availability; proposed existence and Appellant; on behalf of testify and able to ready, willing him. 4) testimony prejudiced proposed absence of the 190, 269, 290-92, 201 Hall, 701 A.2d v. 549 Pa. Commonwealth (Pa.1997). his
Here, gave to trial he prior asserts that Appellant who would have testified of alibi witnesses counsel the names was Bolasky, Mr. because he not have murdered that he could called the 440 Club Arlington, Jersey New at a bar North 3, Appel- 1995. evening January the afternoon and during to this Court documents to brief has several appended lant in North existed that the Club appear which to establish Bolasky that Mr. as of the date Jersey New Arlington, individuals, addition, John names two murdered. Hall, would have testified whom he asserts Hindu and Teresa when Mr. was at the Club on his behalf that he fails, However, was murdered Allentown. attempts his failure to argument, Appellant to blame In a related elderly, poor, any proof statistical provide this Court with for systematically from consideration handicapped are excluded or the alleged ineffective duty Lehigh County on his trial counsel’s made a his trial counsel had Appellant contends that if assistance. jury pool constitutionality Lehigh County’s timely challenge to the court, had an then he would have process before the trial selection Missouri, prima under Duren v. opportunity make out a facie case (1979), evidentiary L.Ed.2d 579 at an 99 S.Ct. 439 U.S. however, as indication whatsoever Appellant, fails to offer hearing. presented support his would have sort of evidence he to what County’s jury pool method challenge Lehigh selection constitutional evidentiary hearing by trial court. granted he been an had
151 otherwise, objective or to provide any proof affidavit that John exist, Hindu Hall or actually they ready, and Teresa that were testify and able to on his behalf at his trial. As willing Appellant’s trial counsel is to have him presumed rendered assistance, effective he will not be deemed ineffective for failing solely to call alibi witnesses based on allegations concerning unsubstantiated the witnesses’ exis- willingness testify tence and on his behalf. See Common- 285, 308-10, 242, wealth v. 553 Pa. 719 Copenhefer, A.2d 254 (1998). Therefore, Appellant is not entitled to relief on this claim. error,
In his third claim of Appellant argues that his trial failing object counsel ineffective for to several of portions Lopez’s testimony Daniel which claims he violated States, rights confrontation under Bruton v. United 391 123, 1620, (1968), U.S. 88 S.Ct. progen L.Ed.2d and its y.16 portion The first Lopez’s testimony Daniel Appellant argues his objected trial counsel should have concerns a conversation that he had with Romero about a handwritten statement that Romero Lopez wanted translate into Spanish for him. portion The contested is as follows: (Commonwealth)
Q: you with speak any- [Romero] Did
more about his case at that time? (Daniel
A: Lopez) Yes.
Q: you What did talk about? A: He tell guy trying me the other to make a state-
ment,
just
make
one
altogether
get
statement
to not
confused
court.
confrontation,
right
Based on the Sixth Amendment
Bruton and
progeny prohibit
during
joint
its
the introduction
trial of a non-
testifying
expressly
co-defendant's confession
to the
refers
defen-
However,
non-testifying
dant.
even if a
co-defendant’s confession is
defendant,
expressly
may
redacted so that it does not
refer to the
it
still
See,
e.g., Gray Maryland,
run afoul of the Bruton rule.
v.
523 U.S.
(1998)(non-testifying
118 S.Ct.
Q: point No, that he made the statement day A: that was the first day.
the first that Mr. you ever see that statement Q: you—did Did to? Romero had referred
A: Yes. that statement? you you were when saw
Q: Where A: In my cell. you? give Mr. Romero that statement
Q: Did A: Yes. in Spanish? or
Q: English Was that statement In English. A: you? it to
Q: Why give did Mr. Romero he good speak he—he don’t write and don’t A: Because it English. good. He don’t understand good you it to for what reason? Q: gave And he it for him. A: He wanted me to translate that? Q: you Did do Yes, I
A: best can. him, you you that statement to what did do Q: After read with it? I him back. gave
A: it to you anything about that statement after Q: say Did he it him? read give lawyer. he it to his gonna
A: He said what you jury Can tell the Q: What was statement? Mr. to the murder of pertaining that statement said what Mr. Romero’s involvement was? Bolasky and A: Yes. Romero, you in that As it to Mr. what read
Q: pertains statement, you tell what read? you can now January they A: It’s a statement that came to Allentown the other to see his—the guy to see—he came with business, stash of business. other brother for some guy that, So, place they a saw they up pizza after end Mr. Moreno on the other side of the street on the that, argue somebody sidewalk with and after he came back. Mr. Moreno came back with some set of key him gave it to and ask him to—to van get some white So, from that was around the street somewhere. he saw Lopez get key pizza when and come out of the and, um, tell, um, shop Lopez said—he state that and, um, that wait for him front of building Romero that, after got building when he front of the with the van, um, guy Romero and the other tell Ivan Lopez in his nephew got body up apartment. there Now, Q: Okay. stop you let me there and I want to back- *19 up and discuss Mr. only, okay. Romero’s involvement When Mr. Romero was in pizza shop with the other guys, Miguel he said Moreno came to the—to them? A: Yes. that,
Q: eventually, And Mr. guys Romero and the other went to 625 North Sixth Street?
A: Yes. Now,
Q: read, at some in point that statement that you he, Romero, you
Romero told that meaning got in the van, van, the white with guys? the other A: Yes.
Q: Okay. you Did he tell whether or not Miguel Moreno
got into the van with them? Yes, van, A: tell got he me Moreno into the the back seat. Q: Okay. again, again, What—tell me or not but further read, time that statement that you what Miguel they away
Moreno did after drove in the van? A: They opened the door Miguel Moreno dumped
body himself and he drove back to his apartment. He walk—he walk back to his apartment.
N.T., 3/12/96, at 148-52.
Appellant argues portion that this Lopez’s Daniel testimony rights violated confrontation it because refer Appellant specifically enced by name and because it was to Daniel referred guy” that the “other obvious to of this An of the merits examination Appellant. was Lopez however, completely as unnecessary Appellant is argument, by the admission prejudiced that he was fails establish testimony. above, in a bifurcated Lopez Daniel testified As noted First, testified Lopez trial. Daniel Appellant’s at manner Lehigh at Appellant with concerning his interactions his interactions concerning Prison. He then testified County The County portion Prison. Lehigh Romero at the with coun- argues his trial testimony Appellant Lopez’s Daniel testify- Lopez to came out while objected should have sel However, all of with Romero. concerning his interactions ing concerns a hand- now contests testimony Appellant wrote while he was Appellant himself written statement fact, testified Lopez when Daniel jail awaiting trial. how Appellant, with he described concerning his interactions into his possession statement came handwritten Appellant’s contents of handwrit- an account of the gave essentially identical to the That account was ten statement. See objects. now Appellant to which of his portion that his N.T., 3/12/96, does not contend at 124-28. failing object to Daniel was ineffective for trial counsel Appel- the contents of testimony concerning Lopez’s initial Therefore, can not handwritten statement. lant’s *20 trial by his counsel’s prejudiced that he was demonstrate Lopez’s of Daniel object portion to to the above-cited failure recitation merely is his earlier testimony, duplicative which handwritten statement. Appellant’s of the contents of Moreover, that Appel of the record reveals review to objecting basis for not had a reasonable lant’s trial counsel Appellant’s handwritten testimony concerning Lopez’s Daniel at trial was that he did not defense statement. commit, of Mr. commit, robbery and murder help or to fact that recognized counsel trial Bolasky. Appellant’s handwritten testimony concerning Appellant’s Lopez’s Daniel in the part that he had no his defense supported statement Bolasky, pains and therefore took and murder of Mr. robbery cross- Lopez from Daniel on following testimony elicit examination: counsel) page The four handwritten (Appellant’s trial
Q: seen, pretty that you you that had remember statement well? (No (Daniel Lopez) response).
A: well, con- Q: you pretty Do remember that statement tent of that statement?
A: Yes. it? Okay. you my Did see client write
Q: No. A: statement, if I from And what understand what
Q: jury, my you told this client indicated you him got pizza shop, right? Moreno came and out of the A: Yes. to Mr.
Q: belonged And asked that he drive the van that Bolasky, right?
A: Yes. Mr. at that
Q: already And Moreno had killed time, correct?
A: He tell me that. didn’t Well, help. needed the statement
Q: he said he Didn’t my client’s assistance you required
indicate he help body? move the A: Yes. So,
Q: you didn’t that—didn’t take that to mean that the
body already dead?
A: Yes. said, sir, So, if
Q: Yes. what the statement and correct me wrong, summary I’m a fair of the statement is that maybe somebody Moreno and else had killed Mr. Bola- sky got my help and then Moreno came and client to Fair statement? get body. them rid *21 A: Yes.
N.T., 3/12/96, at 138-39.
During argument, trial counsel ar- closing Appellant’s gued jury only portion Lopez’s to the that of Daniel that should believe was his testimony they testimony regard- ing Appellant’s the contents of handwritten statement. See N.T., Imploring jury accept at 48-50. to as true 3/19/96 of his Appellant’s day handwritten account activities on the murdered, that Mr. counsel that Bolasky argued was while a person helping dispose was bad for Moreno of Mr. Bolasky’s body, guilty charge first-degree he was not of the N.T., 3/19/96, Thus, murder. See at 61-62. we that find object- trial counsel had a reasonable basis for not ing Lopez’s concerning Appellant’s Daniel hand- written statement—counsel chose use the statement support Appellant’s only defense that he assisted the dis- of Mr. posal Bolasky’s body. has
Since failed to establish that his trial counsel had no reasonable basis for not objecting the above-cited portion Lopez’s testimony of Daniel or that he actually was prejudiced by testimony, the admission of the his instant necessarily ineffectiveness claim fails. See Commonwealth v. Craver, 17, 22, (1997); 547 Pa. 688 A.2d 693-94 Common Pierce, 514, 524, (1994). wealth v. 537 Pa. 645 A.2d portion The second of Daniel Lopez’s testimony Appel- argues objected lant his counsel should have to came out while Romero, Lopez testifying against concerned state- ment that him regarding Romero made to his activities around portion time Mr. was murdered.17 The Lopez’s testimony Daniel his trial coun- Appellant argues objected sel should have to is as follows: (Commonwealth) Q: you Can tell the what Edwin you
Romero told about his own involvement in the Bolasky? murder of David Lopez writing 17. Romero asked to reduce his statement to so that he give lawyer. could it to his
157 (Daniel much pretty It the first sentence Lopez) was A: pizza in the they was point same. At the other um, and, guy stay the other me that he
shop. He told um, neph- and his Lopez and Ivan pizza shop, in the ew— is, sorry I’m for I to talk about
Q: No. What want rude, I’m about mean to what concerned being—I don’t himself, Romero, okay. okay, only did is what Mr. N.T., 3/12/96,at 154-55. portion that the above-cited
Appellant argues
hearsay,
constituted inadmissible
Lopez’s testimony
Daniel
to him
his confronta
specific
that
reference
violated
However,
any cogent
to
Appellant
provide
fails
rights.
tion
Appel
of his bald contentions. Nor does
argument
support
of Daniel
portion
as to how the above
lant offer
indication
him or
him the
testimony prejudiced
implicated
Lopez’s
Johnson,
v.
Bolasky.
of Mr.
See Commonwealth
murder
410, 413,
859,
that the
(1977)(noting
Pa.
378 A.2d
admis
during joint
out-of-court
a
trial
sion of a defendant’s
statement
if
of confrontation
only
right
violates his co-defendant’s
incriminating
Finally,
ap
has some
it is
statement
impact).
Lopez’s
of Daniel
testimo
parent
portion
the above-cited
exception to
ny
by party opponent
falls under the admission
803(25)
Pennsylvania
Rules
hearsay
rule. See Rule
that this
Appellant
of Evidence. As
has failed
establish
portion
Lopez’s testimony
of Daniel
constituted inadmissible
counsel
hearsay
rights,
or violated his confrontation
his trial
failing
object
will not be deemed ineffective for
Craver,
22,
693-94;
testimony. See
Appellant
argues,
summary
also
that his
objected
trial counsel should have
to the remainder of Daniel
Lopez’s testimony concerning the statement
that Romero
him,
Lopez repeatedly
dictated to
because
referred
what
other
were
around the time that Mr.
guys”
doing
“the
short,
jury
contends that the
Appellant
murdered.
must have
was one of the “other
speculated
guys”
during
that Daniel
mentioned
his direct examina-
Lopez
tion,
of the
violat-
and that therefore
admission
However,
rights.
possible speculation by
ed his confrontation
guys”
was one of the “other
referred
Lopez
measuring
determining
to Daniel
is not the
stick for
By
whether or not a Bruton violation occurred.
the time of
approved
trial in
this
had
redaction as
Court
an
a
confronta-
appropriate
protecting
method
defendant’s
Bruton,
rights
interpreted
tion
under
and had
Bruton as
that a
out-of-court
requiring
incriminating
co-defendant’s
prior
during
joint
statement be redacted
to its admission
*23
trial so that it “retains its narrative
in no
integrity
yet
and
Johnson,
412,
way refers to
defendant.” See
474 Pa. at
[the]
860;
Miles,
378 A.2d at
see also
v.
Pa.
Commonwealth
545
500,
1295,
Lee,
510,
(1996);
681 A.2d
1300
Commonwealth v.
(1995).
260, 273,
645,
541 Pa.
662
652
A.2d
A
Lopez’s
testimony
review
Daniel
contested
by using
indicates that
the term “the other
to
to
guys”
refer
cohorts,
integrity
Romero’s
he retained the narrative
of Rome
ro’s
to him and
to
referring
Appellant.
statement
avoided
Therefore,
it
Appel
under the law as
existed at the time of
trial,
Lopez’s testimony
lant’s
Daniel
did not violate the Bru
Appellant’s
ton rule.18 As
contention that Daniel Lopez’s
merit,
testimony
arguable
violated the Bruton rule lacks
his
Craver,
necessarily
instant ineffectiveness claim
fails. See
547
22,
Pierce,
693-94;
524,
Pa. at
In his fourth claim of that Appellant argues his trial failing join counsel was ineffective for an unsuccessful to suppress Lopez’s testimony motion Daniel filed his co- 18. We note that the United States Supreme court revisited the issue of admissibility non-testifying the conditional of a co-defendant’s incrimi nating implicates Gray Maryland, statement that another defendant in v. 1151, However, (1998). any 523 U.S. 118 S.Ct. L.Ed.2d 294 impact Gray that decision would have our on review Daniel immaterial, Lopez’s testimony is as counsel cannot be deemed ineffec failing anticipate change tive for law. See Commonwealth v. Gibson, 71, 105, (1997). 547 Pa. 688 A.2d disagree. Romero.19 We
defendant Lo argued that Daniel motion suppression Romero’s acting was because he testimony be suppressed should pez’s obtained incrimi when he as of the Commonwealth agent an Romero, Appellant at Barbosa and statements from nating motion, trial court In County denying Prison. Lehigh Lopez Daniel solicited the authorities never found Rather, Bolasky murder. concerning the obtain information Daniel sentencing, Lopez him at his it benefit believing would incriminating state decided, own, to obtain attempt on addition, In Romero and Barbosa. Appellant, from ments promised Lopez that Daniel never trial court found con for information he obtained return consideration trial court Accordingly, murder. cerning acting agent as an of the Lopez that Daniel was not concluded incriminating statements he obtained Commonwealth when Barbosa, Romero, him to permitted and from Based on our joint and Romero’s trial. at testify record, the trial court of the we find that review independent Daniel suppress Lopez’s motion to denied Romero’s properly therefore, ineffective instant arguable lacks merit.20 ness claim addition, agree we with the Commonwealth *24 deciding had for trial counsel a reasonable basis Appellant’s have unsuccessful motion to Daniel join not to Romero’s above, Appel- As discussed testimony suppressed. Lopez’s guilty yet pled filed his motion to had not when Romero Barbosa 19. testimony, joined in motion. Lopez’s the suppress Daniel Franciscus, 376, (1998), Pa. A.2d 1112 v. 551 710 In Commonwealth granted defendant a new trial based on the admission of Court the this jailhouse which been of a informant had obtained the right to counsel. In so of the defendant’s Sixth Amendment violation police agreed testify to holding, the on the Court found because concerning continuing jailhouse efforts on of the informant his behalf behalf, actively police assisted informant in their and because inmates, incriminating his fellow to obtain statements from his efforts government acting agent as an of the jailhouse informant had been incriminating In con- he obtained statements from Franciscus. when Franciscus, promises no authorities in the instant case made trast to obtaining Lopez, no assist incrimi- and took action to him to Daniel Appellant any other nating or inmates. information from lant’s defense centered around four-page handwritten statement that Daniel Lopez he had translate into Spanish for short, Romero. Appellant’s handwritten statement indicat- that he totally ed was unaware that Mr. had been robbed and until he agreed murdered to assist Moreno disposing of the Rather than body. Appellant have take the testify stand himself to concerning the contents of his hand- statement, written thereby putting credibility his and recollec- issue, tion events at counsel amade strate- gic decision to allow Daniel Lopez testify instead concerning the contents of the handwritten statement.
Since Appellant
failed to
has
establish
either
his under-
lying claim
arguable
has
merit or that his counsel had no
reasonable basis for
not
deciding
join
Romero’s motion to
suppress Daniel Lopez’s testimony, he is not entitled to relief
Craver,
this
on
claim.
22,
See
In his fifth claim argues that the trial court abused its discretion by committed reversible error denying pre-trial motion to sever his trial from Romero’s. Again, disagree. we
The whether decision trials of sever co-defen dants is within the sound discretion of the trial court and will not be appeal disturbed on absent a manifest abuse of that Uderra, discretion. v. Commonwealth Pa. 398-400, (1998). 706 A.2d The critical factor that must be considered is prejudiced whether accused has been by the trial court’s decision not to sever. Id. The accused bears the burden of establishing prejudice. such Id. that he prejudiced contends in several ways trial court’s refusal sever his trial from Romero’s.
First, Appellant argues prejudiced he was because Barbo- sa refused to testify against joint Romero at Next, trial. Appellant argues prejudiced that he was because Daniel Lo- *25 pez’s testimony concerning the statements that Romero made himto violated the Bruton rule. Finally, Appellant argues trial Romero joint with because his was prejudiced
that he jury. mislead the to confuse and served by was prejudiced that he first contends Appellant to because motion sever grant his refusal trial court’s the trial, some Romero at Barbosa, testify against by refusing in the than Romero culpable more appear made Appellant how as However, offers no indication the jury.21 of eyes Appel testimony, squarely implicated which to how Barbosa’s any have less would been Bolasky, of Mr. in the murder lant Romero’s. from his trial been severed damning to him had aas contention, prejudiced he was that second Appellant’s sever his trial because court’s refusal of the trial result that testimony concerning statements Lopez’s Daniel Bruton rule, equally is to him violated the Romero made above, hinged defense at trial Appellant’s As noted specious. that testimony the same large portion a of on the admission of violated the Bruton rule prejudiced and claims Appellant now of that remainder addition, have we determined him. it Bruton rule as testimony did not violate Lopez’s Daniel respect of trial.22 With Appellant’s at time existed testify against Romero that refusal to assertion Barbosa’s primarily responsible for appear jury Appellant was it to the that made Bolasky that the flatly is contradicted fact the murder of Mr. first-degree of Mr. and murder Romero of convicted both Bolasky. portion of Daniel arguendo assume that 22. Even if we were to testimony concerning made to him Lopez's the statements Romero implicated Appellant in of Mr. the murder violated the Bruton rule Any prejudice Appellant. Bolasky, harmless not error was and did such murder Mr. Appellant's involvement in the evidence testimony concerning Romero’s Lopez's Daniel could be inferred from other, properly evidence merely admitted cumulative of statements indicating 322, 327, Foy, 531 Pa. guilt. See Commonwealth v. (1992)(where merely erroneously admitted evidence is A.2d evidence, similar, substantially properly admitted harm- cumulative of relief). is not entitled to applies, error and defendant less doctrine concerning events on the Barbosa's Both Moreno's and planning implicated Appellant in day squarely both murder Furthermore, the Commonwealth and the of the crime. commission physical that corroborated Moreno’s presented substantial evidence Thus, light wealth of of the of the murder. Barbosa’s accounts guilt, establishing Appellant's clearly properly evidence admitted during the course might have occurred potential Bruton violation *26 162
Appellant’s final contention he was his prejudiced because joint trial with Romero confused and misled the jury, Appel- lant any explanation fails offer whatsoever as to how the misled, jury was either or jury’s confused or how the supposed confusion worked to his prejudice.
Joint trials are advisable whenever defendants are
alleged to have participated
the same series of acts or
transactions
Common
conspiracy
charged.
where
is
Paolello,
wealth v.
47, 70,
(1995).
439,
542 Pa.
665 A.2d
451
exactly
transpired
Therefore,
That is
what
here.
any
absent
that Appellant was
showing
actually
trial
prejudiced by the
sever,
to grant
court’s refusal
his motion to
we find no abuse
Uderra,
of
on
of
the trial court. See
part
discretion
706
339;
Washington,
557,
A.2d at
1021;
Appellant’s claim instant of trial court is error grounded in the notion he was to effectively unable cross- examine Barbosa’s testimony, direct because Barbosa refused offer concerning Romero’s participation of Bolasky. murder Mr. claim Appellant’s by is belied fact that his trial counsel an conducted extensive cross-exami Barbosa, nation of during the course which he repeatedly questioned concerning Barbosa differing his accounts Bolasky murder and impugned credibility by mentioning his prior N.T., 3/15/96, criminal convictions. at 72-98. fact, the record reflects that attempted Barbosa to answer Lopez’s testimony merely of Daniel was harmless error. See Common- 550, 557, (1997).
wealth v.
547 Pa.
692 A.2d
Washington,
trial counsel
him
Appellant’s
posed to
every question
the fact that Barbosa
Given
during his cross-examination.
trial counsel
by Appellant’s
cross-examined
available to be
no abuse
discretion
testimony, we find
concerning his direct
at
testify
Barbosa to
permit
trial court’s decision
trial.
that the
contends
argument, Appellant
In a related
committed reversible
its
court abused
discretion
trial
to read into
the Commonwealth
by permitting
error
implicated
of Barbosa’s confession
those portions
record
*27
Romero,
of Barbosa’s confession
transcript
and
admit the
to
This
held
previously
Court has
as an exhibit.
into evidence
substantive
of Barbosa’s confession as
admission
that
the
Romero’s confronta
Edwin Romero violated
against
evidence
be
to
cross-
Barbosa was not available
rights,
tion
since
of his confession
concerning
portions
those
examined
Bolasky.
in
Mr.
Common
murder of
Romero
the
implicated
1014,
Romero,
4, 12-16,
1018-19
555 Pa.
722 A.2d
wealth v.
(1998).
the
However,
assuming
admission
arguendo
even
violated
confron
Appellant’s
of Barbosa’s confession somehow
relief,
is still not entitled to
because
rights, Appellant
tation
not have contributed
evidence could
erroneously
the
admitted
Pa.
him.
at
against
Foy,
verdict entered
See
the
(erroneous
is
of evidence that
Here,
any
Appellant’s
we
evidence of
involvement
find
could
from
in
murder of Mr.
which
be extracted
the
merely
was
cumulative
the admission of Barbosa’s confession
similar,
indi-
substantially
properly
admitted evidence
other
testimony concerning
guilt.
Appel-
his
Barbosa’s direct
cating
in
completely
the murder was
consistent
lant’s involvement
in the murder that
with the account of
involvement
In
Bucarey
way of his confession.
Captain
by
he
provided
day
the
on
addition,
concerning
events
testimony
Moreno’s
testimony,
with Barbosa’s
and
of the murder was consistent
implicated
both
squarely
planning
commission of
Finally,
above,
the crime.
as mentioned
Commonwealth presented
physical
substantial
evidence cor
roborating Moreno’s and Barbosa’s testimony implicating Ap
pellant
Bolasky.
murder Mr.
Given both Barbosa’s
and Moreno’s properly
testimony,
admitted
plus
corrobo
physical
rating
presented by
Commonwealth,
evidence
in admitting
harmless,
error
Barbosa’s confession was
and will
not serve as a basis for relief
Appellant.
Romero,
for
See
(any
A.2d at 1019
in admitting
error
co-conspirator’s confes
sion was harmless where it
merely
of co-
cumulative
conspirators’ eyewitness testimony and corroborating physical
1021).
evidence)(eiting Washington,
During the penalty phase hearing, Appellant’s pre- counsel sented the of Appellant’s brother, mother and his argument tailored an effort establish two First, distinct mitigating circumstances. Appellant’s counsel attempted to mitigating establish “catchall” circumstance 9711(e)(8), § enumerated at 42 Pa.C.S. presenting evidence *28 concerning Appellant’s general as background, well as evi- dence that he had close emotional ties to family. his To that end, Appellant’s counsel elicited testimony from Appellant’s that Appellant worker, brother was a hard that he took of care his mother financially, that religious, he was and that he had good not relationships only with his own eighteen year-old daughter, but also with his nephews. nieces and Appellant’s counsel also elicited from Appellant’s mother that Appellant was religious, that he helped her out financially, and often for paid her air fare to come see him when he lived Appellant’s Florida. counsel also attempted to establish the mitigating circumstance 42 enumerated at Pa.C.S. 9711(e)(7), § that Appellant’s involvement in the murder was relatively end, minor. To that Appellant’s counsel to argued the jury during penalty phase hearing that Barbosa was the individual who actually murdered Mr. Bolasky, and could have masterminded only individual who
Moreno rob and kill his landlord. plot to around his claim centers instant ineffectiveness Appellant’s for adequately prepared trial had that if his counsel contention discovered that he have phase hearing, would penalty young as a child and trouble with blackouts had adult, concerning more evidence presented have and would However, Appellant upbringing. and background Appellant’s of his bald any support fails completely present to evidence young as a man.23 from blackouts allegation he suffered as to what addition, any to indication Appellant fails offer his trial counsel failed background information of useful sort hearing, or during phase penalty with his provide establishing proven helpful have how that information could circumstance. mitigating of “catchall” the existence for any his bald support fails to offer Since failing for ineffective allegations that trial counsel was argu present mitigating evidence adequately prepare is to relief at he not entitled penalty phase hearing, ment his Craver, A.2d 693-94. at at on this claim. See Pa. for first-de- conviction Having concluded per- required are statutorily we gree proper, murder was of death. Pursuant an automatic review of sentence form review, unless we must affirm the sentence of death to this we that: determine
(i) product passion, of the sentence death was factor; arbitrary or other
prejudice (ii) finding at least one support fails to the evidence (d); in subsection or circumstance aggravating (iii) disproportionate is or excessive the sentence death cases, considering in similar penalty imposed
to the *29 Indeed, Appellant’s assertion were assume truth of even if we the 23. man, young offers as a he nevertheless he from blackouts suffered changed possibly the as fact could have no to how that indication penalty phase hearing. outcome of his 166
both the circumstances of the crime and the character of record the defendant. 9711(h)(3). § 42 Pa.C.S. record,
On of careful review the we conclude that of sentence death was not the product passion, preju of factor, dice or other arbitrary but rather was based on the that Appellant participated evidence in the planning exe cution of the premeditated killing of Mr. during the robbery. We also conclude the evidence was sufficient to support finding of the two aggravating circumstances n found by jury. Finally, duty terms our to determine whether is Appellant’s sentence excessive or disproportionate, 1997, 25, we note that on June of Pennsylvania the Governor signed legislation that removes such a proportionality review requirement for the death penalty 25, statute. Act of June 1997, (Act 28). § However, No. 28 while Section 3 of Act 28 states that the immediately, Act shall take effect Act 28 is not applicable to the instant as Appellant’s case death sentence 25, imposed prior Thus, to June Act 28 to applying Appellant’s impermissible case would result an retroactive application of Gribble, the law. See Commonwealth v. 550 Pa. 62, 88-89, 703 A.2d 439-40 Act (Pa.l997)(provisions of removing proportionality requirement review from pen death alty apply statute do not retroactively to death sentences 1997). imposed before June we Accordingly, have inde pendently reviewed light sentence in sen tencing data compiled by the Administrative Office of Pennsyl vania Courts. Id. After considering both the circumstances of the crime and the character and record of Appellant, we conclude that his sentence of death not is or dispro excessive portionate to penalty imposed similar cases.
Accordingly, affirm we verdict and sentence of death.24 Justice SAYLOR files a concurring opinion in which Justices ZAPPAL join. A and CAPPY Prothonotary 24. The Supreme is Court directed to transmit complete Pennsylvania. record of this case Governor of See 42 1997). § Pa.C.S. l(i)(Supp.
167 Justice, concurring. SAYLOR, conclusion that for the except majority opinion, I the join with the testimo- in connection employed form of redaction Confronta- of the satisfy the dictates Lopez would Daniel ny of States, 391 U.S. v. United in Bruton interpreted as tion Clause (1968), as the as well 20 L.Ed.2d 88 S.Ct. in decision Court’s Supreme States that the United suggestion 1151, 140 L.Ed.2d 185, 118 S.Ct. Maryland, v. 523 U.S. Gray existing in law. (1998), change represents a Bruton attorney perceived that the district evident It is testimony, Lopez’s Daniel with connection problem written state- of the description Lopez’s Daniel particularly his to Appellant from passed claimed was he ment which (the Romero, shop “pizza in a cell codefendant, prison Edwin the Commonwealth’s Thus, structured story”). prosecutor offered portion into a testimony Lopez’s of Daniel presentation against offered separate portion and a against Further, instructed the witness prosecutor Romero. shop story pizza within the to Romero omit references to use the but instead against Appellant testimony his during replace a similar instruction gave guy,” term “the other testimony of the during portion references against Romero. offered redaction, however, is technique this with problem
The story was pizza shop The transparent. entirely that was it twice, presenta- of the bifurcated phase once each repeated in one version often guy” tion, to “the other with references to the codefendants’ with references directly overlapping term “the obvious that the names, patently it rendering thus to Appellant.1 to refer employed guy” frequently other shop description pizza Lopez opened of the example, Daniel 1. For by against Appellant testimony portion offered story during of his stating that: to, January 2 [Appellant] came to Allentown I is that What recall time, brother, um, Angel. And business with his to have some shop pizza with that he went to his brother and he couldn't reach guys. the other Romero, against Daniel offered During portion of his story began as follows: Lopez Indeed, Daniel slim Lopez was unable maintain even this facade, rather, but contrary to instructions from the district attorney, referred to Appellant by name at several points during his testimony against offered Romero. view,
In my however, the Confrontation Clause was not implicated by pizza thus, shop story; I see no need for this Court to redactions, endorse the flawed as they were not necessary in First, the first instance. I while find it a close *31 question, I agree with majority the that the record is sufficient the support conclusion that the pizza shop story was Appellant’s own statement against offered him as an admission another, rather than the statement of such as would implicate the Confrontation Clause. To the extent that the is record ambiguous in regard,2 this I note that the pizza shop story described a version of events that was inconsistent with the theory Commonwealth’s of the case that Appellant inwas apartment where and at killed the time Mr. Bolasky was (the physically in participated the murder pizza version shop would have placed Appellant in a pizza shop and him had in participating only the disposal of the body). The Common- wealth thus proffer did not the statement to prove the truth of contained; the matter it rather, it offered it as evidence of Appellant’s consciousness of guilt by demonstrating his at- tempt to coach his codefendants adopting into a unified false statement in an effort to avoid criminal liability. In such they It’s a statement that came January to Allentown 2 to see— guy came [Romero] with the other guy to see his—the other brother business, So, that, for some they stash of business. up after end pizza place____ example, during
As another pizza the first shop story, rendition of the Lopez Daniel Miguel referred to Moreno nephew, as while during telling, the second he referred to Moreno guy’s” as “the other nephew. Lopez Daniel testified that give he saw the written state- Romero, ment and that Romero described the statement as one guy” which "the other trying among to coordinate all codefendants “altogether get to not confused in Lopez testify, Court." Daniel did however, that statement, he did not writing witness testimony concerning there is no a by Appellant direct admission the written actually statement was significant own. It is also pizza shop story multiple itself contains hearsay. levels of that, when circumstances, apply principle I would testimony concerning a codefend- to admit government seeks a nonhearsay purpose, statement for some incriminating ant’s implicated. generally confrontation is not right defendant’s 409, 414, Street, 105 S.Ct. v. 471 U.S. Tennessee generally See 2081-82, (1985)(finding that a defen- L.Ed.2d 425 Clause were not violated rights under the Confrontation dant’s of an confession for the accomplice’s by the introduction nonhearsay rebutting the defendant’s purpose coerced). his confession was disagreement among courts concern- There has been some Koehler, at v. 720 F.2d length Lyle ing point, this described (6th Cir.1983), present which involved facts similar to the (the at murder trial government offered into evidence case a fabricated containing circulated a codefendant two letters alibi). for a noted letters offered The court that the were Lyle shop story for testimo- pizza similar to that which purpose in this case: ny was admitted false, prosecution obviously to be did
[bjelieving the alibi not seek to the letters order demonstrate introduce Rather, they contained. particular truth of the statements *32 jury from the government intended to have the infer the fabri- attempting to obtain author] statements that [the mind” testimony, “guilty alibi an act that revealed a cated part shootings. on his the regarding of The then two lines 720 at 431. court described Lyle, F.2d the nature of such statements. analysis concerning hearsay as as nonhearsay, first treat statement simply The would the truth matter but for it is offered not for the of the asserted second would find that purpose. another relevant The from the jury of that the is invited make chain inferences alibi, (i.e., he has statement the author needs a false because innocence, his conduct consistent with his explanation no for an of the itself integral part because he is is statement guilty) made included within the set of and thus should be assertions view, where is the statement. Under this the statement of of establishing for the consciousness proffered purpose Lyle, 720 hearsay. generally it constitute See guilt, would 170
F.2d at 432-38. While Lyle court adopted the view that implied assertions this sort fall within the definition of I hearsay, believe that opposite conclusion is consistent with conventional hearsay analysis, the United States Su- preme Street, Court’s decision and the Federal Rules of Evidence, 801(c) see F.R.E. & comment that, if (indicating statement, although form, in assertive is offered as a basis for inferring something other than the truth of the matter assert- ed, the statement “is from excluded the definition of hearsay”), as well as our own 801(c) rules of evidence. See F.R.E. & comment. generally See State v. Esposito, Conn. A.2d (1992)(declining to adopt the broader view of hearsay taken by majority in Lyle).
Thus, I would find that Daniel Lopez’s testimony concerning pizza shop story was nonhearsay, I perceive no and. violation of Appellant’s right of confrontation. In regard, this I note that it is not so important whether the record firmly establishes who physically prepared the written document— Lopez’s Daniel testimony was offered for the purpose of demonstrating that Appellant was circulating a false account among codefendants, and the provides record an ample foundation upon which his testimony could be admitted for such purpose.3
Finally, contrary to the suggestion contained in footnote 18 majority opinion, I view the United States Supreme Court’s decision in Gray as a rational application of the I respectfully must also disagree majority’s with the alternative con- object clusion that trial counsel’s failure to to the concerning pizza shop story constituted a strategy, reasonable trial in that counsel story utilized the closing speech by in his imploring accept view, the version of the my facts it contained. the introduc- pizza tion shop story provided of the highly damaging evidence of guilt. consciousness potential The story value of the insignificant defense would seem to be light highly of the suspicious story context in which the was related and absent *33 circumstances, corroboration in the evidence whatsoever. Under the I do not believe that a reasonable accept would ever the substance of statement, particularly such a in view of the extensive evidence of Thus, Appellant’s guilt. if the objectionable, statement had in fact been I would find that trial lodge counsel’s failure objection an would have constituted ineffectiveness. in the in Bruton rather change than as a enunciated
principles law. Concurring join CAPPY this ZAPPALA and Justice
Justice Opinion.
v. STEVENS, Appellant. Andre Pennsylvania. Supreme Court of Dec. Submitted 27, 1999. Decided Oct. 30, 1999.
Reargument Denied Dec.