Commonwealth v. Means

773 A.2d 143 Individual, FRANCIS, Respondent v. an Cecelia SWISHER, III, Individual, Petitioner. Crady C. Pennsylvania.

Supreme Court of 20, 2001. June ORDER PER CURIAM: June, 2001, for the Petition NOW, day of this 20th

AND following issue: granted Appeal Allowance of Petition denying order Petitioner’s the trial court Is pursu- right Judgment appealable as from Default Relief 311(a)(1)? Pa.R.A.P. ant to on briefs.

Appeal be submitted A.2d 143 Pennsylvania, Appellant COMMONWEALTH MEANS, Appellee. Alfred Pennsylvania. Supreme Court Argued Oct. 25, 2001.

Decided June J., Saylor, concurred and filed opinion. J.,

Zappala, dissented opinion joined by and filed Flaher- ty, C.J. J.,

Nigro, opinion. dissented and filed Bums, Marshall, Hugh Jr., Catherine Philadelphia, J. for appellant Com. Epstein, Philadelphia,

Jules appellee for Alfred Means. FLAHERTY, C.J., ZAPPALA, CAPPY, Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.

OPINION ANNOUNCING THE JUDGMENT

OF THE COURT CAPPY, Justice.

This appeal is a from direct an order of the Court of Philadelphia County Common Pleas of declaring portions of penalty statute at 42 Pa.C.S. 9711(a)(2) (c)(2) unconstitutional.1 The trial court inval issue, finding they idated subsections failed to establish procedural safeguards sufficient regarding the introduction of impact testimony during phase case. For the reasons follow we reverse the decision of the trial court and remand proceedings. further 15, 1996,

On the evening of Mr. walking October Rudd was along 52nd in Philadelphia street he had when the misfortune encountering appellee accomplice. and his Mr. Rudd was beaten, ground, knocked fatally and shot in robbed then Appellee the chest. and his accomplice walked from away Mr. body Rudd’s towards 51st Street. 51st On Street the assail- Cooper ants encountered Dr. planting who was a tree on his property. The two men Dr. Cooper, beating attacked him 702(b) jurisdiction pursuant 1. This court has §§ Pa.C.S. and 722(7). validity As this case involves the statutory constitutional aof enactment, law, question purely which is scope of our review Products, 124, plenary. Phillips v. A-Best 542 Pa. A.2d money. through pockets his searching guns and with their Cooper Dr. to shoot attack, appellee attempted During the Eventually the fire. times, gun failed to however his several Dr. in shoot; leaving embedded permanently a bullet gun did Cooper’s leg. attacked, being police responded Cooper Dr. was

While shooting of to the being fired relation gunshots to a call of discovering body of Mr. on 52nd Street. After Mr. Rudd his sidewalk, and police upon appellee came on the Rudd Dr. The attackers Cooper. on accomplice during their attack directions, policeman pursuit. with a each opposite fled chase, his at the officer During appellee gun aimed times, discharge. Both gun but the did pursuit several offenses apprehended charged and with various men were murder, conspiracy, possessing robbery, including degree first aggravated assault. an instrument of crime and proceed before accomplice his chose to Appellee and appel- non-jury. On October of Common Pleas Court charges.2 first-degree was murder and related lee convicted a motion to presented exclude appellee October On alleging that penalty phase from the introduction of permitted which the sections the statute equal and process, protection the due such evidence violated Pennsyl- and States punishment provisions cruel the United XIV; Pa. Amend. VIII and vania U.S. Const. Constitutions. 1, 9, 13, Following argument, 28.3 §§ Art. and Const. second-degree accomplice murder. was convicted 2. on the was Appellant constitutional attack statute asserts Eighth under the to the “admission” of limited concerning proce- argues questions Appellant that the Amendment. testimony by which such dural mechanism for consideration of equal protection were raised sua raise due concerns of Thus, appellant urges these sponte by concerns the trial court. be deemed properly brought the court and should were not before record. The Appellant's allegation is not borne out waived. pled trial court were and briefed constitutional issues addressed Impact by appellee Victim in the to Preclude the Introduction Motion 1995-22(SSI), Amending 42 PA.C.S.A. No. Statement Declare Act in the supporting memorandum filed and the Unconstitutional appellant’s 1997. Nor is assertion trial court October Appellee separately raised correct. was not Constitution trial court sustained appellee’s preclude motion to the intro- duction of victim testimony and declared subsections (a)(2) (c)(2) 42 and Pa.C.S. unconstitutional. agreed

The trial court with appellant that con- cerning of the death on family his victimas penalty However, relevant to the issue of in a death case. issue, statutory court invalidated the finding subsections guidance provided insufficient was jury how to weigh victim impact in the deliberative process. to Furman Looking Georgia, (1972), 33 L.Ed.2d 346 opined the trial court process requires penalty due a proceeding is structured arbitrary capricious jury to eliminate actions when deliberating imposition on the of a death trial sentence. The court found such missing Pennsylvania structure stat- Specifically, pointed ute. the court the statute’s failure forth a standard of a proof, requirement set of unanimity, and explanation howof within jury the deliberations of the impact testimony addition, tois be considered. court found that a without structure for the to channel its impact testimony, assessment appellate review of the jury’s sentencing determination would severely impeded. Thus, court statutory concluded that the sections at issue sufficiently were they restrictive as opened arbitrary and capricious considerations in sentencing pro- . meaningful cess that would evade appellate review. permit Given the trial court’s refusal to introduction victim impact testimony, phase hearing and sen- clearly brought invalidity averments of constitutional under both the United States and Constitutions in the motion and memo- D7, during argument. (Original randum and D8; oral Record Documents 60; Hearing "H.T.”). Transcript atp. October hereinafter appellant's As for further assertion that sufficient time to address these denied, thorough point claims was discussion on this was held on the (H.T.37). why record. We appellant are unable to determine raises this prejudice resulting issue as there is no current claim from argument, request

limited oral nor is there a for remand for additional argument appellant before the trial court. Insofar raises matter relief, seeking specific any without form of we must conclude that in preparation limitation time before the trial court now has been appellant overcome has suffered harm. no indefinite- was continued remaining convictions tenting on the trial court’s review sought immediate ly.4 Appellant statutory subsections argues Appellant decision. that victim asserts Appellant invalidated. improperly were circumstance, thus not an testimony is proof, of precise burden according to not be established need unanimity. of requirement subject it be nor should requirement Further, constitutional is no there Appellant weighing process. to conduct the how be told trial court be therefore, of the the decision requests, reversed. legislation validity duly of enacted

The constitutional Swinehart, 500, Pa. v. presumed. Commonwealth presump (1995). party seeking overcome The A.2d 957 burden. Common a formidable validity must meet tion of (1996). A Barud, 297, statute 681 A.2d 545 Pa. wealth v. clearly, palpably and if it unconstitutional declared will Mikulan, v. constitution. Commonwealth violates the plainly 244, Pa. 470 A.2d 1339 at issue are the provisions constitutional The federal and unusual against cruel prohibition Eighth Amendment guarantees Fourteenth Amendment and the punishment, of the provisions equal protection. and process due 1; in are Article by appellee cited Pennsylvania Constitution 1, equal protection; Sec guaranteeing beginning with Section in criminal process for 9, part, due providing, relevant tion of cruel the infliction prohibiting proceedings; Section discrimina governmental precluding punishment; Section discrimi prohibiting any person; and Section against tion Edmunds, 526 In Commonwealth gender.5 nation based custody awaiting on his writing, appellee sentence 4. As of this robbery, degree, two first two counts murder in the convictions for crime, criminal two counts of possessing instruments counts aggravated assault. conspiracy and three counts above, the sections set forth Although appellee cites to each of under argument precluding victim actuality his and the Article Section Pennsylvania Constitution focuses on in the protection that are subsumed equal concepts of due appellee fails to penalty proceeding. As process of a death overall (1991), Pa. recognized A.2d 887 we that certain Constitution, provisions Pennsylvania of the although parallel ing within Constitution, those may United States afford greater protection to the citizens of this Commonwealth. Thus, in considering the appeal, merits will we address provisions, the dual constitutional and where appropriate dis cuss the facets of jurisprudence, may which compel distinct conclusions under the opposed state charter as Edmunds, to the federal constitution. As we stated when considering a claim specifically implicates provi a distinct Pennsylvania Constitution, sion of the we will consider the textual distinctions between the state provisions, and federal interpretation the historical provision as elucidated in law, legislation and states, case related decisions of our sister policy unique considerations to this Commonwealth. See Id. at 895. With principles place these in begin we our discussion of constitutionality the legislation the at issue. specific The statutory provisions are as follows: Sentencing procedure

§ 9711. for murder of the first degree

(a) jury Procedure in trials.—

(2) In the sentencing hearing, evidence concerning the victim and the that the death of has had family on the or the victim is admissible. Additionally, may presented be as to matter any that .court deems relevant and question admissible on the the sentence to imposed. be Evidence shall include mat- relating ters to any of the aggravating or mitigating (d) specified (e), circumstances in subsections and and information concerning the victim and the death of the victim has had on family of the victim. of aggravating Evidence circumstances shall be limited to (d). those specified circumstances in subsection arguments make distinct on each of the sections of the above, cited Constitution we will provisions. not address those distinct (c) jury.— Instructions if at it finds

(2) jury that court shall instruct The one miti- and at least aggravating circumstance one least consider, circumstance, weighing the in shall gating circumstances, any evidence and aggravating the victim about presented about also family. The court shall on victim’s murder just any may that be jury on other matter instruct the circumstances. proper under amended, 1995, 9711(a)(2),(c)(2), as October 42 Pa.C.S. 1), 1. No. (Special Session P.L. No. relying upon that the trial court erred

Appellant argues statutory Fur- issue. to invalidate the subsections Fuman jury by specific factors in guided requires man the risk that eliminate order deliberative arbitrary wholly on imposed would be based death sentence 153, 188, Georgia, capricious grounds. or Gregg (1976) (summarizing the central 49 L.Ed.2d 859 Fuman). Appellant opinions plurality mandate do not violate argues provisions delineated above Furman, solely impose as a cannot a sentence of impact testimony. requirement of victim the basis jury’s penalty phase channeled relates discretion be that an initial determination present subject particular which would circumstance v. Zettle- Commonwealth defendant to death. (1983). Only after 500 Pa. 454 A.2d 949-51 moyer, atof initial has been reached on the existence that decision circumstance, any jurors if aggravating one least jury can found at least one circumstance have process. impact testimony weighing within the consider victim Thus, as not argues that the statute written does appellant jury as a impact testimony to be used allow victim Appellant circumstance. further asserts super aggravating jury requirement no constitutional there is miti- weigh aggravating how to specifically instructed on circumstances with all other relevant information gating 318 reaching

issue before its decision. Zant v. Stephens, 462 U.S. 862, 2733, (1983). 103 Therefore, S.Ct. 77 L.Ed.2d 235 appel- lant concludes that of specific the absence instructions on how weigh victim impact testimony anis upon insufficient basis which to invalidate the statute.

Appellee argues statutory subsections at issue violate both the U.S. and constitutions. The appellee’s crux of argument is that victim testimony interjects highly emotional information into sentencing categorized scheme that is not for jury either or mitigating circumstance. Commonwealth v. Peterkin, 299, (1986), denied, Pa. 513 A.2d 373 cert. 962, (1987). Therefore, U.S. S.Ct. 93 L.Ed.2d 1010 by allowing framework, into clearly without defining its function in weighing process, jury exposed emotionally charged information which destroys carefully balanced our capital structure of sen tencing scheme. Blystone Pennsylvania, By L.Ed.2d 255 admitting this type of susceptible reaching decision penalty swayed by emotion rather than Appellee reason. concludes such a result would imposition constitute the punishment cruel contravening prohibition found in the Eighth Amendment and Article Section 13.

Initially, we note that the constitutional claims raised herein neatly separated are categories into convenient analy- sis. question The basic Eighth concerns the Amendment and Article Section insofar provisions as these broadly prohibit imposition of cruel and unusual punishment. However, inquiry the discrete at bar infuses elements of due process and equal protection into that question. broader challenge constitutional legislation at issue addresses deliberative which a sentence of death is in a imposed case where the receives victim impact Thus, testimony. question posed is whether the introduc- tion of this evidence results cruel and unusual punishment process by because the which the sentence is decided has been unfair, fundamentally rendered subjected and has similarly

319 of the to Because unequal treatment. situated defendants must posed, our discussion weave question of nature throughout, equal protection concepts of due Eighth Amendment is on the although primary focus 1, constitution establishes the federal Article 13. As Section states liberty, which the guarantees of below the minimum of law. federal fall, begin with an examination cannot we concerns mixture Fourteenth Amendment precise This of of trilogy fueled a creating Eighth violation Amendment pertinent to our Supreme in United States Court cases Jurisprudence regarding in court inquiry. current capital sentencing in a of introduction very period in short of changed dramatically proceeding four, Supreme Court a vote five to the U.S. time. With of a statement the introduction initially declared capital case of the sentencing phase of a violative in the 496, 482 U.S. 107 Maryland, v. Eighth Booth Amendment 2529, By margin, slim L.Ed.2d 440 the same 96 S.Ct. 805, 2207, 104 Gathers, 109 490 U.S. S.Ct. Carolina South (1989), prosecutor’s com the court held that L.Ed.2d 876 of the victim made personal about the characteristics ments sentencing phase of a closing at argument Booth. capital violated rule of case in Booth and motivating The rationale the decisions Gathers impact testimony inflammatory was that victim introduced prejudicing jury. impassioned capable information Gathers, Booth, 2529; at 482 at 107 S.Ct. 490 U.S. U.S. opined purpose 2207. court The S.Ct. weigh culpability was the moral of the defendant, jury’s should be individual thus the focus limited character and the circum- considerations defendant’s Booth, 2529; crime. 482 U.S. at S.Ct. stances Gathers, Victim impact at 109 S.Ct. 2207. 490 U.S. allowed declared inadmissible as it was taken, of the life thus swayed by considerations of the value suffer creating possibility disparate that defendants would than upon the character rather sentences based Booth, at culpability moral the defendant. U.S. Gathers, 2529; 107 S.Ct.

stated intent of the court Booth and was to keep Gathers jury prejudice the free from in passion the deliberative Booth, process. 508, Gathers, 2529; 482 at 107 U.S. S.Ct. 490 812, 109 U.S. at S.Ct. later, years decision,

Two with six in joining Justices the the Booth, Gathers, holding established and reaffirmed in was Tennessee, 808, Payne overruled. 501 111 S.Ct. 2597, 115 (1991), L.Ed.2d 720 the Supreme United State Court that the Eighth per declared Amendment did not a erect se bar to victim impact the admission of in the penalty phase a majority nothing of case. The found in the Amendment, of language Eighth the or jurisprudence therefrom, flowing barring of introduction relevant evidence concerning of family the victim’s death on his in a capital sentencing 822, at proceeding. Id. 111 S.Ct. 2597. Payne

The court stressed the relevance of victim testimony capital sentencing conveys as such information jury unique that the decedent was a individual whose-loss society. affects Id. at 111 S.Ct. 2597. Victim testimony was also in weighing found relevant the moral defendant, culpability of the as loss of the victim to his a family consequence was of foreseeable the defendant’s ac- tion. Payne rejected equal protection analysis Id. put Booth, forth in impact testimony permits greater consider the of value one victim’s over that of life Booth, victim. another Id. at 111 2597 (citing S.Ct. 482 2529). U.S. at n. The Payne S.Ct. court found this unsupported in reasoning practice, juries because are not victims; provided comparisons trial, with among any given provided of glimpse particular is individual 823-824, Payne, victim’s life. 501 U.S. at 111 S.Ct. 2597. Additionally, rejected equal the court protection argument possible disparate focused on the treatment of defendants victim, because of the of identity character facts that may the defendant not have known at the time of the murder. argument rejected simple This was that by reason murder, act it reasonably was foreseeable that the defen- being. life in The society unique of a from the value dant took killing act must foreseeability consequences Id. at sentence. determination relevance have J., As for the (Souter, concurring). concern S.Ct. passions jury, inflame the would that such available correct those always court stated that relief information is introduced unduly prejudicial situations where fundamentally unfair. sentencing process renders the which (O’Connor, J., concurring). The Id. at properly Payne court held that as to each individual reaching a conclusion considered the defendant’s relates culpability, moral defendant’s Id. particular crime. to the victim of that directly actions 827, 111 S.Ct. 2597. constitu- specific court addressed the interwoven Payne found no due or claims raised in this case and

tional sentencing process concerns that infected the equal protection Eighth Amendment violation. such a manner to create thorough of the role of the and consideration Given careful through capital opinions cases the impact testimony Booth, Gathers, the ultimate conclusion the Payne, and with this is not consistent Supreme Court on issue Al- finding of a constitutional violation. trial court’s federal specific Payne did not address the need instruc- though testimony, opinion on victim tions to general regarding by application rules presupposes can be main- admissibility relevancy, fundamental fairness Thus, 825, 831, 111 Id. 501 U.S. at tained. court, do find we not contrary to the decision of the trial constitu- issue violative of the federal statutory subsections at However, analysis, our we must now this does end tion. trial court’s argument, appellee’s turn our attention conclusions, Pennsylvania Constitution. under criteria, by examining

Following begin we our Edmunds and state constitutional the coordinate federal language Eighth provides: “Excessive bail provisions. Amendment imposed, nor cruel required, shall not be nor excessive fines 1, Article inflicted.” Section punishment and unusual states: shall required, “Excessive bail not be nor excessive imposed, punishments fines nor cruel A compari- inflicted.” son of the text does not advance a basis for distinct treatment under either document.

Appellee recognizes that in Zettlemoyer, Commonwealth v. 16, 937, (1982), Pa. 454 A.2d 967-69 thorough after a review, rejected historical this court the argument that Article provided greater protection Section 13 against imposi- tion a sentence of death than Eighth Amendment. Appellee distinguishes Zettlemoyer, arguing question in that case focused on whether is per se cruel punish- case, asserts, appellee ment. it is not penalty itself, making but rather process by the decision which the impose chooses to is at Appellee issue. correct; Zettlemoyer distinguishable basis; on that how- ever, we must decide if that distinction is sufficient to advance appellee’s conclusion that prohibits Article Section 13 admis- impact testimony. sion of victim query, Given the nature of our consideration of Pennsylvania scheme under the ap- statute is an propriate starting point for our Following review. the land- Fuman, mark decision legislature enact- enacted, ed the current statute. Pa.C.S. originally 26, 1974, March P.L. No. imd. effective. Post Furman, pass muster, in order to constitutional capital sen- tencing required statutes were significantly type narrow subject of cases penalty. This nan-owing process is Zant, eligibility referred to as the stage. 462 at U.S. Pennsylvania S.Ct. 2733. The statute requirement meets this by limiting eligible the cases for a by of sentence application specific aggravating of 42 Pa. circumstances. See 9711(d). phase C.S. The next of sentencing is the Zant, stage. 878-879, selection U.S. at 103 S.Ct. 2733. is aspect This the sentencing individualized of the process the is where focused the character of the defendant and the circumstances of the if crime order to determine defendant, having (cid:127)this now been eligible, deemed should actu- ally for a selected sentence of mitigating death. The 9711(e) to are relevant listed 42 Pa.C.S. circumstances eligible narrowing the of cases class By determination. this death, channeling at sentenc- of the focus penalty and for the to in relation culpability the individual defendant ing to the crime, Pennsylvania statute circumstances necessary requirements. Blystone constitutional meets 108 L.Ed.2d Pennsylvania, determining as the process Due is satisfied manner fair, is as similar- equal protection and maintained eligibility eligibility subject same defendants are ly situated focus on jury’s This channels the sentencing criteria. scheme charac- particular the criminal conduct and nature of defendant, promot- of the thus culpability and moral teristics a providing and rationality within the deliberative ing Zettlemoy- appellate for meaningful sufficient review. record er, us is whether question 454 A.2d at 959-61. The before sentencing format to this addition of constitutional balance. disturbs the mitigating cir- argues only aggravating Appellee deliberative are considerations appropriate cumstances legis- impact testimony is not defined process. Victim circumstance, to a nor is it tied aggravating lature as an character as relevant rebuttal to the mitigating circumstance defendant; therefore, it must be offered it will the constitutional from consideration as cause precluded Appellant sentencing disrupted. to be of the scheme balance position by defining counters stage relevant to the selection consideration factor, only a foresee- aggravating It is not an but scheme. As it is taking criminal act a life. consequence able factor, no aggravating there is need to establish to the proof or to delineate additional instructions burden information. To decide which weigh on how positions requires correct first a determi- competing these capital sentencing scheme Pennsylvania of whether nation hearing limits the introduction of evidence necessary that information establish the at issue. Two circumstances decisions touch on the limitations of admissible relevant evi- in a penalty dence hearing, Abu-Jamal, Commonwealth v. Pa. (1989), 555 A.2d 846 Fisher, and Commonwealth v. 545 Pa. 681 A.2d 130 Abvr-Jamal, rejected the court appellant’s argument only evidence relevant to specific aggravating and

mitigating circumstances issue can presented be during penalty phase of the trial. The court looked to the 9711(a)(2) language § of 42 Pa.C.S. appeared as it at that time, prior to issue, the amendments currently at and de clared:

We do not read the statute limiting as scope sentencing hearing to this extent. legislature The has directed that hearing, “[I]n may evidence be presented as to any matter that the court deems relevant question admissible on the of the sentence to im- be posed and shall include matters relating any or specified circumstances in sub- (d) (e).” 9711(a)(2) sections Pa.C.S. (emphasis added). If matters relating to the aggravating and mitigat- ing only circumstances were the matters capable being explored, phrase the first emphasized above would be sur- plusage, misleading indeed surplusage. a reading Such would, course, contrary to the most basic rules of statutory construction.

555 A.2d at 858. holding The in Abu-Jamal strongly contra- dicts appellee’s contention that pertaining aggravating and mitigating circumstances can be received jury during penalty phase proceeding.

Following Abu-Jamal, the decision in legislature 9711(a)(2) amended subsection Pa.C.S. specifically include victim impact admissible, along with evidence, other relevant during penalty phase of a case. timing legislative action support indicates analysis of the court in Abu-Jamal. Rather than amend ing reject statute tó expansive interpretation of language of (a)(2), subsection employed by the court in Abu- interpretation by specif- Jamal, upon that legislature built parameters impact testimony within the ically including victim phase of a penalty in the admissible of relevant evidence to reject a court’s legislature case. When fails capital language presumed it is interpretation statutory legislative intent. interpretation consistent with court’s (1999); Inc., 1 Shandon, A.2d 555 Pa. Fonner v. 1922(4). Thus, to legislature we find the intended § Pa.C.S. penalty phase hearing, in a relevant the view that endorse aggravating and is not limited to the enumerated (e). 9711(d) circumstances listed in Pa.C.S. mitigating Fisher, a case inquiry to case relevant our The second at to of the amendments prior was tried the effective date that acknowledge not opinion in Fisher did majority The issue. amendment, intervening nor intent of legislative the clear generated in Fisher holding Abu-Jamal. did mention two joined majority, separate opinions; four Justices three dissented, concurring opinion and this author filed Justices only in result. The Fisher joined majority opinion that permitted states to draft majority recognized Payne that admission of victim allowing statutes for the in effect at the impact testimony. The statute Fisher, provision. trial did not include such time of Fisher’s to the statute limit majority A.2d at 146. The construed penalty hearing in a admission of “relevant” evidence aggravating or supports or counters an the evidence in the case. Id. at 146. presented circumstance first, argued testimony at issue was dissent The testimony. asserted that the testi- victim The dissent mony question presented support in was issue, 9711(d)(15), at whether circumstance Pa.C.S. provid- in for information she murdered retaliation was Second, at police. opined Id. 152. the dissent ed in the always be admissible should case, it is to the of a relevant penalty phase imposition of sentence. concurring opinion joined the result reached

The given instructions majority only because the impact testimony Fisher as to the role victim play should within inadequate. the deliberative were Id. at 151. Otherwise, opinion the concurring strongly endorsed the ad- impact testimony mission in all capital cases and rejected upon by the limitations majority preclud- relied ing such existing statutory language. under the Id. concurring opinion heavily relied upon the court’s earlier decision Abu-Jamal.

Reviewing language provisions before and after the current amendment and the relevant case law interpreting provisions, those we can discern no historical support for invalidating the statutory subsections at issue. Fisher, exception With the a case of application, limited Pennsylvania jurispnidence favors the introduction of all rel- evant during evidence a capital sentencing proceeding. Pennsylvania’s sentencing scheme does not limit the evidence penalty phase admissible in the to the information nec- essary aggravating establish and mitigating circumstances. Appellee challenges also victim impact testimony because jury is not on instructed how to conduct weighing of this factor process. in the Appellee deliberative asserts that without proper instruction on the of information, use this appellate courts will be left without a means to conduct appropriate appellate leading review of the deliberations imposition of the sentence death. In Zettlemoyer, this court a responded to challenge constitutional to the current capital sentencing very a point. scheme on similar 454 A.2d at Zettlemoyer argued 963-64. scheme was unconstitutional jury because the was not instructed as to what extent the aggravating outweigh circumstances must mitigating burden, circumstances. a fixed Without appellant argued arbitrary that the would capricious sentence and impervious meaningful appellate review. The court rejected argument, this finding it jury sufficient that the was instructed that aggravating circumstances proven must be beyond a and mitigating reasonable doubt circumstances preponderance of weighing evidence. The actual various reaching sentence, factors before on consensus jury’s as the difficult, instructions no further though required cir- on the sufficiently and focused channeled discretion was of the defen- character the homicide and the cumstances of Florida, 258, 96 S.Ct. See, 428 U.S. dant. Proffitt 49 L.Ed.2d attach to weight should on what

The directions absence constitutional not affect the testimony does impact requirement is no constitutional as there balance Further, as demonstrated point. this be advised on discussion, testimony just one impact above weighing the may consider when factors the relevant during found has circumstances impact of victim The addition its sentence. deliberations is not such arbi- into the deliberative meaningful ap- preclude trary inclusion would factor its judges of this that the trial are satisfied pellate review. We prejudicial and adequately prevent unduly can Commonwealth jury’s entering from into the delib- inflammatory information testimony. Our guise of victim review erations in the legislative pertinent enactments prior decisions and admission of victim presents no historical bar during phase of a case. issue, many of our reviewing we aware that are question of victim sister states have also debated the addressing this issue majority jurisdictions testimony. have that victim Payne since concluded capital sentencing. thirty- Of the relevant and admissible punishment, thirty- jurisdictions providing seven for testimony. permit impact Two one the introduction victim impact testimony. of victim prohibit states consideration states, Montana, (Connecticut, writing, New As four York) question. Hampshire yet to address the New have Edmunds, weight that As it is not the numerical we stated rather, reasoning employed it is which persuasive; is disposition particular of a drives us to issue consider Edmunds, 586 A.2d at 900. our sister states. jurisdictions prohibiting impact testimony, In victim two prohibits doing so. Indiana there are distinct reasons 328 impact testimony strictly

victim interprets as it its penalty limit statutorily statute to relevant to the specified State, Bivins v. aggravating circumstances. mitigating 928, (Ind.1994). 642 N.E.2d Mississippi does have a per impact Rather, se ban on victim evidence. it limits such testimony to it necessary those situations where to the case, development establishing or to aggrava- relevant State, (Miss. Berry v. 269, ting circumstance. 703 So.2d 1997).6 jurisdictions

Among permit evidence, victim impact Jersey permits New stands alone as the state that impact testimony admission of victim only in those cases which places the defendant his character or at record issue as 2C:ll-3c(6). mitigating § circumstance. N.J. Stat. Ann. examining statute, this particular Jersey the New Supreme legislation Court found the satisfied federal and state constitu Muhammad, State v. requirements. tional 145 N.J. (1996). 164, 168 A.2d Jersey scheme,

Under New if the finds circmnstance, least one and if the also finds evidence of the defendant’s character record and/or circumstance, under the catch-all jury shall victim impact testimony consider in deciding weight how much Id., to that mitigating attribute at 170. The circumstance. court found that this manner of admitting impact victim into testimony the capital sentencing appropriate was jurisdictions prohibited impact testimony 6. Two other until their respective legislatures state penalty amended death statutes therein specifically testimony. Initially, Oregon include victim Supreme rejected Court under a strict inter Guzek, pretation of the relevant statute in state State 322 Or. (1995). P.2d 272 The statute was amended at Or.Rev.Stat. 163.150(l)(a), subsequently and victim was found Hayward, admissible in State v. court Or. 963 P.2d 667 (1998). Opining society according should not condemn murderers taken, Supreme to the value life the Utah Court banned victim Carter, (Utah 1995) impact testimony in State v. P.2d 652-53 denied, (1995). cert. 516 U.S. 116 S.Ct. 133 L.Ed.2d 105 subsequently Utah permit statute was amended to testimony, presented with limitation without comparison persons to other or victims. Utah Code Ann.1953 76-3- 207(2)(a)(iii)

829 to moral blameworthiness directly as it the evidence tied Id., analytical framework Using an at 173. of the defendant. Edmunds, the New developed this court similar to the one constitutional chal- the state Supreme Court dismissed Jersey statute, punishment no and unusual finding cruel lenges to protection con- equal or resulting from due violation Muhammad, A.2d at 173-79.7 678 cerns. remaining permit states relevancy regard generalized considerations

allow it under crime, uniqueness of the proof ing the circumstances being culpabil moral as life and the the victim an individual State, 680 (Ala.1996), Slaton v. 909 ity of So.2d the defendant. denied, 1079, 742, cert. 117 136 L.Ed.2d 680 519 S.Ct. U.S. Gonzales, 502, (1995), State v. (1997); Ariz. 892 P.2d 838 181 denied, 1052, 720, cert. 116 133 L.Ed.2d 673 516 S.Ct. U.S. State, 87, (1995), v. 907 Nooner (1996); 322 Ark. S.W.2d 677 denied, cert. 1143, 116 134 L.Ed.2d 558 U.S. Edwards, People v. (1996); Cal.Rptr.2d 54 Cal.3d denied, (1991), California, cert. Edwards v. 819 P.2d (1992); People 121 L.Ed.2d 80 U.S. 113 S.Ct. denied, (Colo.1999), cert. Dunlap, 975 P.2d 723 conclusion, however, .Teisey Beyond its the New court 7. constitutional safeguards procedural on to to ensure that the evidence went establish appropriate purpose place was its limited to its admitted for lawful and proceedings. safeguards in the Those can summarized follows: defendant, trial, 1) notify prior must to of its intent to state impact testimony trigger- if introduce victim the defendant asserts factor; 2) ing mitigating provide the defendant with the state must witnesses; 3) special potential absent names circumstances, only testify behalf one witness should victim's 4) family; permitted present minors should not be 5) testimony; proffered the trial court should hear the presence preliminary jury to make a determination as outside the 6) writing admissibility; the statement should be reduced for the thereby potential prejudicial judge for trial to review and reduce content; 7) the statement should be limited factual information on interests, family, employment, as far as the victim's education inflammatory possible it should be free of emotion devoid recognizing guidelines comments. Id. While that these are statute, Jersey repeat we appropriate given of the New the structure example here of how one of our sister states treats victim them as an procedures impact testimony; adoption we do not endorse these within our courts. 120 S.ct. 221, Re (1999); Petition 145 L.Ed.2d 186 Delaware, State, State v. (Del.1991); 1 Windom 597 A.2d denied, Florida, cert. v. (Fla.1995), 432 Windom 656 So.2d 516 1012, 116 S.Ct 571, (1995); U.S. Livingston 133 L.Ed.2d 495 State, Card, v. 402, State (1994); 264 444 v. Ga. 748 S.E.2d 121 denied, Idaho, 425, (1991), cert. Card v. Idaho 825 P.2d 1081 113 S.Ct 915, 321, 121 v. 506 People (1992); U.S. L.Ed.2d 241 Hope, 315, 103, (1992); 147 Ill.2d 168 Ill.Dec. 589 N.E.2d 503 Gideon, v. 591, State v. (1995); 257 Kan. Bowling 894 P.2d 850 Commonwealth, denied, cert. (Ky.1997), 942 S.W.2d 293 522 986, 451, v. (1997); U.S. 118 139 L.Ed.2d State S.Ct. 387 Scales, denied, (La.1995), cert. 1050, 655 So.2d 1326 516 U.S. State, 716, 133 v. (1996); 116 S.Ct. Evans L.Ed.2d 670 333 Md. Parker, 660, v. (1994); State 637 A.2d 117 886 S.W.2d 908 denied, (Mo.1994), cert. 1098, 1827, 514 115 U.S. S.Ct. 131 (1995); v. Bjorklund, State 258 Neb. 432, L.Ed.2d 748 604 State, (2000); McNelton v. 900, 169 N.W.2d 111 Nev. 900 P.2d denied, (1995), cert. 1212, 1833, 934 517 116 U.S. S.Ct. 134 Clark, (1996); State v. 119, L.Ed.2d 937 128 N.M. 990 P.2d 793 Guevara, State v. (1999); 243, (1998), 349 N.C. 506 S.E.2d 711 denied, cert. 1133, 1809, 526 U.S. 119 143 S.Ct. L.Ed.2d 1013 (1999); Fautenberry, State v. 435, 72 Ohio St.3d 650 N.E.2d denied, (1995), cert. 996, 534, 878 516 U.S. 116 S.Ct. 133 State, v. (1995); Gargle 77, 439 L.Ed.2d 1995 OK CR 909 P.2d denied, (1996), cert. 831, 806 100, 519 U.S. 117 S.Ct. 136 Evatt, Lucas v. (1996); 31, L.Ed.2d 54 308 S.C. 416 S.E.2d 646 8 Rhines, (1992); State v. (S.D.1996), cert. 54 N.W.2d 415 denied, 1013, 522, (1996); 519 117 136 L.Ed.2d 410 Nesbit, State, v. State (Tenn.1998); Banda v. 978 S.W.2d 872 denied, cert. 890 42 (Tex.Crim.App.1994), S.W.2d 515 U.S. 1105, 2253, (1995); v. 115 S.Ct. 132 L.Ed.2d 260 Weeks Com monwealth, denied, 460, (1994), 248 450 cert. Va. S.E.2d 379 829, 100, v. (1995); 516 U.S. State 116 S.Ct. 133 L.Ed.2d 55 Gentry, v. (1995); 125 Wash.2d 888 P.2d 1105 Barnes State, 858 P.2d 522 (Wyo.1993).

Our examination the above listed of our decisions sister jurisdictions states reveals that the permit victim impact consider admissible as consequence foreseeable

331 also taking a The cases cited action in life. of the defendant’s factor relevant as a determin- find focusing the defendant and ing culpability the moral unique particular on the circumstances attention jury’s have many of our sister states it. We note that case before adopted to those procedural safeguards forth similar set Court, several Supreme additionally, and that Jersey the New specific jury regarding the suggested instructions courts have State, See, impact testimony. e.g., Turner v. purpose Nesbit, (1997); State 268 Ga. S.E.2d State, (Tenn.1998); Cargle v. CR S.W.2d OK P.2d that have jurisdictions 828-29 impact testimony of victim over- considered the issue have in whelmingly testimony to chosen admit the relevant sentencing. are capital The decisions of our sister states persuasive rejecting current constitutional support challenges statutory provisions to the at issue. specific policy

We next turn to concerns of Common- a wealth that would decision on the constitutional influence statutory validity Policy subsections hand. is dis- at among things, of common through, tilled other observation legislation reflecting of the practices, customs will practice in the people. example An common can be found Commonwealth, a daily of this basis courtrooms where are decisions made after due consideration of the had on physical, the defendant’s actions emotional custom, well-being victim. a matter financial of the As court, pre-sentence reports rules of this con- reflected taining in all non- prepared statements are 1403A(4). This capital practice Pa.R.Crim.P. cases. except and reveals no basis cases longstanding those has a fatal injury which suffered the hands Appellee that a should be made argues defendant. distinction jurist imposes non-capital on the that a basis sentence jury normally capital while serves that function in a case presumes argument judges case. This are trained average objective, juror susceptible remain while the hearing after from the passion and bias emotional victim’s family. argument This is of pillar little merit. A upon which system our by jury of trial juries is based is, presumed are to follow the instructions of the court. Com Baker, 541, monwealth v. 663, (1992). 531 Pa. 614 A.2d Trial judges uniformly are capable of restricting the admission of relevant to only that information which is essential hand, to the issue at devoid of inflammatory, unessential data. Holland, 405, Commonwealth 1068, 518 Pa. 543 A.2d practices We believe the traditional of this Common wealth regarding inclusion of victim impact testimony in non- support cases admission of such information in capital cases, under the control of judge. the trial

In addition to legislative currently enactment under consideration, legislation championing rights of crime vic tims has been in in Pennsylvania effect years. for over 70 1929, P.S. 180-9 et seq., April 175; P.L. No. replaced by, P.S. 11.101 et seq., Nov. P.L. No. imd. effective. Crime victims are to be treated with dignity, respect, courtesy and sensitivity, and rights their are to be vigorously protected and defended. Crime victims have a basic rights bill of guaranteeing input their in sentencing matters, right restitution, their and information on the potential release from custody of their assailants. Id. Such aggressive protect intent to rights of crime victims and involve them in sentencing process favors the inclusion of victim impact capital cases. mandate,

Pursuant to our Edmunds we have consid ered the text of the provisions issue, constitutional the historical perspective regarding victim impact testimony in cases, the decisions of our sister states perti and the policy nent concerns sum, relevant to our Commonwealth. we find support no for the trial court’s conclusion that the legislation at issue violates Article Section 13 of the Penn sylvania Constitution, any or of the other sections of that by appellee.8 Article cited Appellee arguments makes two additional grounds as alternative support the decision the lower court. Each of these issues was below; however, raised the trial court Appellant addressed neither. statutory that subsec- firmly convinced the

Although, arewe do impact of victim introduction allowing for the tions constitutions, that recognize we or state the federal not violate legitimate proce- issue raised addressing this the trial court However, impact testimony. regarding victim dural concerns through the are best addressed we believe those concerns penalty cases are of our case law. Death development natural they fraught passion. start to finish are with generis, sui from than Yet, always judges our trial more we have assumed that overseeing presentation evidence so capable of biased, passionate, intentionally inflammatory and ma- overtly kept terial is out of the courtroom. course, impact recognized it be victim

Of must only the Commonwealth will be admitted where testimony have an that the victim’s death did fact establishes of the effect of the family. on the Generalizations victim’s Although charges are we do not find either that the claims waived. merit, raised we not find them waived. The issues were do issue below, preserved by appellee his brief to this court as alternate and statutory regarding constitutionality of the subsections at theories issue. addressing impact testimony were enacted The amendments special legislature in had been called session that address, among things, January on 1995 to other Governor orderly implementation penalty. Appellee of the death for the addressing testimony, legislature charges went that in therefore, proclamation, beyond scope of the Governor’s calling special proclamation invalid. A for a session amendments are subject only specific legislation particular need to address on enough intelligent responsive subject; evoke action .and methodology accomplish particularized need not set forth a Roberts, See, Annenberg purpose. v. 333 Pa. A.2d intended (1938). argument including appellee’s find We do not merit to penalty phase deliberations caused 1he governor's legislature subject beyond scope to act on a calling special expressed purpose in session. appellee argues legislation as it Finally, is unconstitutional court, authority expressly infringes upon rulemaking V, provided in Article Section 10 of the Constitution. legislation to be admitted. The courts allows victim admissibility regulate that information relevant and of evidence to jury. legislation The current falls material to the deliberations of purview Assembly does not the General hinder within the DeHart, authority 512 Pa. ion or court. Commonwealth fund argument A.2d This is also without merit. 670-71 victim’s community at large, or information concerning particular of characteristics victim present- in a ed vacuum will not fall within ambit statutory of the provision. met, Once this for admissibility threshold has been impact testimony exact method victim presented is is left to the discretion the trial court.

Moving to the concern raised regarding lower court jury instructions always we note that it has policy been the give judges this court to our trial latitude in phrasing instruc- However, recognizing tions. complexity impact of victim testimony within the atmosphere volatile penalty phase in a death following case we offer the language as a prototype following instruction. charge While not mandated we believe it goal furthers the of admitting intended relevant victim impact testimony, eliminating potential while impassioned appeals emotional jury. prosecution has introduced what is known as victim impact evidence. Victim evidence is not evidence of statutory aggravating and it circumstance cannot be a impose

reason itself to the death penalty. The introduc- tion victim impact any evidence does way relieve the Commonwealth of to prove beyond its burden a reason- able aggravating doubt least one circumstance. may You consider this victim impact in determining evidence appropriateness you of the death only if first find or existence one more circumstances proven beyond has been a reasonable doubt independent evidence, from the victim jurors and if one or more has found that one or more mitigating circumstances have by preponderance been established Vic- evidence. tim simply evidence is another method of informing you about the nature circumstances of the crime in question. may You consider this evidence in determining an appropriate However, punishment. the law does not deem the life of one victim another; more than valuable rather, victim victim, shows like defendant, a unique individual. Your consideration must be limited to a rational inquiry into culpability defendant, response to the evidence. an emotional not with in accordance you impose must be The sentence prejudice, sympathy, and not you law 1 instruct based as solely on victim public opinion and based or emotion impact. and of trial court is reversed

Accordingly, the decision consistent with proceedings this is remanded further case relinquished. opinion.9 Jurisdiction concurring opinion. a files Justice SAYLOR by dissenting opinion joined Chief ZAPPAL A files Justice Justice FLAHERTY. dissenting opinion. NIGRO files

Justice concurring. SAYLOR, Justice, Pennsylvania’s agree majority’s conclusion with in capi- determinations governing statutory scheme admission of cases, amended to allow for the presently tal evidence, pre- does not violate constitutional impact victim so, Assembly now has cepts. This is because the General impact of as a for the consideration victim expressly allowed argues colleague in the Our learned dissent provision fundamental fairness of statutory at issue violates the scheme of the of the Fourteenth Amendment United the Due Process clause legisla- Specifically, finds fault with States the dissent Constitution. testimony permits the introduction of victim tive scheme as argues should all cases. dissent death placed only cases where a defendant has his own be admissible in those offering mitigating under 42 evidence Pa.C.S. character at issue (a 9711(e)(8) present "[a]ny mitiga- of may other evidence defendant concerning the and record the defendant and the tion character offense”.). respectfully point out. We circumstances his majority legislative with the of states that scheme at issue is consistent Further, we permit to be admitted. note that t'ictim dissent, following Jersey New upon endorsed framework scheme, to make legislative the defendant the Hobson's choice forces facing mitigation then presenting character evidence mitigation testimony, foregoing or such order impact testimony. legisla- our We believe presentation block of victim By allowing impact testimony in ture chose the fairer course. cases, penalty can be in its all the defense forearmed death hamstrung choosing between a rock phase preparation rather than place. and a hard form other aggravating evidence relevant to “selection” of a defendant for imposition of a after sentence “eligibility” according defendant’s has been determined statutorily-prescribed aggravating factors set forth at Section 9711(d) 9711(a)(2). Judicial Code. See Pa.C.S. See 257-58, generally Commonwealth v. Trivigno, Pa. J., (2000)(Saylor, A.2d 256-57 concurring)(describing a body’s capital sentencing separate eligibility and selection determinations, Eighth attaching Amendment constraints eligibility facet, the constitutional validity consid- of a range eration wider of circumstances in selection process).

My however, majority, difference with the from its arises decision to prevailing interpretation abandon the concerning operation of general the Pennsylvania penalty death stat- Fisher, was ute as reflected in v. Commonwealth 545 Pa. 266-68, (1996). 681 A.2d 146-47 Fisher held that impact evidence and other of “selection” aggravating forms evidence were not admissible pre-amendment under the ver- penalty enactment, sion of the death since did the statute expressly provide evidence, for the consideration of such nor open-ended did it allow for presentation of evidence aggravation in eligibility either the processes. or selection See id. This rationale was also the of my concurring opinion basis Trivigno, in in I disagreed which with of a opinion plurality of open-ended the Court that an interpretation of Pennsylvania’s capital sentencing such adopted scheme as that present majority should applied permit be to consider- ation of a defendant’s future in dangerousness selection 258-59, determination. Trivigno, See 561 Pa. at 750 A.2d at (Saylor, J., concurring). 256-57 I continue to Fisher’s interpretation amply find to sup- be in ported principles statutory construction and in histor- background ical death penalty statute as described opinion,1 and I believe that it would prudent be to majority, 1. Unlike the being I also do not view Fisher as inconsistent Abu-Jamal, prior with the Court’s decision Commonwealth v. 521 Pa. (1989). Abu-Jamal, A.2d I As read the Court deemed the in terms of expansion relegate any to additional continue ex to future aggravating considerations “selection” available subject constitu Assembly, to dictates the General press Indeed, range extent tional limitations. unconstrained, considerations left “selection” objective sentencing body’s the risk increases subjective selec by more may decision be clouded eligibility prompted risk some Notably, such has tion considerations. measures, special precautionary take jurisdictions other processes. bifurcating eligibility and selection such (Colo.), cert. See, Dunlap, 975 P.2d People e.g., denied, 145 L.Ed.2d 186 528 U.S. amendment, Since, legislative virtue of the criterion under is now an available selection join I also statute, majority’s disposition. I am to join able advocating careful and majority opinion portion in that manner by the trial courts over the substantial control presented which passion and undue to avoid the insertion juries order proceedings. into the prejudice Justice, ZAPPALA, dissenting. human life weigh be value of permitted

Should might imposed where the such that imposed but not be where the upstanding citizen victim is margins society? Having of lived on from profound adequate without direction consider such issues weighing process disrupts careful constitutional- the court determining whether a employed by juries ly required Moreover, improperly of warranted. sentence death is by Commonwealth to at to have constituted rebuttal evidence issue Abu-Jamal, mitigation, see 521 Pa. at case defendant’s independent opposed “selection” evi- A.2d at as support imposition offered the Commonwealth dence Indeed, gives light, full penalty. viewed in such Fisher itself Fisher, reasoning applied 545 Pa. at in Abu-Jamal. See credit to 268, (slating the death statute under 681 A.2d at 147 "gave to introduce evi- to ihe Commonwealth consideration latitude respond evidence was to whatever dence counter and introduced”). the jury’s channels deliberation towards examining the life of victim, than the criminal act rather and character of the defendant. minimum,

At a the introduction such incompa- evidence is precedent our providing tible with Court that “victim evidence,” unaccompanied by restrictions to its presentation evaluation, or guidelines as to its unconstitution- interjects ally capital sentencing arbitrariness into the scheme. Fisher, Commonwealth v. 545 Pa. 681 A.2d 130 Opinion Announcing Because the the Judgment of the Court has flagrantly disregarded this rule of upheld law and provisions statute, I vigorously adoption dissent. While the of stringent guidelines regarding presentation and use of victim impact evidence may minimize the effect of the statute’s constitutional infirmi- ties, not, been, it is and never has the role our Court to amend what Assembly the General has enacted.

Initially, join I portion note that I of Mr. Justice Nigro’s Dissenting Opinion wherein he concludes that 42 9711(a)(2) (c)(2) Pa.C.S. violate the fundamental fairness required by the Due Process Clause of the Fourteenth Likewise, Amendment to the United States Constitution. I agree with his conclusion that “injects statute amended very kind of arbitrary impermissible factor into the jury’s sentencing decision this Court prohibited Fish- er.” Dissenting Opinion Pa. 773 A.2d at 163. however, Nigro, Unlike Mr. Justice I would not admit victim impact evidence as rebuttal to defense evidence introduced as catchall mitigating circumstance under 42 Pa.C.S. 9711(e)(8). Opinion As noted Announcing Judg- Court, ment of the such a construct “forces the defendant to make the Hobson’s of forgoing mitigation choice such presentation order block of victim impact testimony.” Opinion Announcing Judgment of the Court at 565 Pa. at dilemma, however, 773 A.2d 159. The answer to the Rather, to admit the evidence without restriction. precluded. testimony should of victim likely to from the admission evils arise Be- significance. of constitutional are numerous and evidence standard describing the statutory provision is no there cause to be or whether which assessed such evidence proof of weighed, to be required in how the evidence is unanimity is constitutionally considered not be impact evidence can should circumstance. The evidence “super” aggravating aas in the arbitrary as an “tiebreaker” also not be considered circum- competing aggravating weighing Moreover, Judgment Opinion Announcing stances. contemplate possibility has failed to even the Court defense.1 The being evidence offered likely drastically to occur increas- scenarios are fact these capricious imposition penalty. the risk the death es drafted, inadequate to constitutionally the statute is As presentation and consideration of victim regulate the to myriad likely in the of situations that arise. are balance, hangs being the life of human in the When wary sanctioning practices may should be result Court heavily in an execution based on the attributes of the Although the culpability rather than the of the defendant. guidelines Nigro’s Dissenting Opin- in Mr. referenced Justice may prevent from ion work some constitutional violations occurring, adoption limitations lies of such substantive prerogative legislature. they within As tinker and of the guidelines, may die. adjust such some I do not choose adopt that course. I order trial court

Accordingly, would affirm the 9711(a)(2) (c)(2) ruling section unconstitutional. joins dissenting FLAHERTY opinion.

Chief Justice fact, Givens, already In 1. this scenario has arisen. Commonwealth application extraordinary WM filed an for Commonwealth pleas ruling challenged that the relief in which it the common court’s presenl testimony family's opposition defense could as to tire victim’s sought particular the death case. The defense mother introduce that the victim’s did not believe perpetrator was the and that the execution would defendant defendant's intensify pain as a of her son. she suffered result of the loss application extraordinary Court denied the Our Commonwealth's April relief on NIGRO, Justice, dissenting.

I agree with trial statutory the court that provisions the governing victim impact evidence in penalty phase cases, 9711(a)(2) capital (c)(2), § 42 Pa.C.S. & are unconstitu- tional. I dispute While do not fact impact that victim may defendant, evidence be in sentencing capital relevant I take issue with procedures the circumstances and under which juries Commonwealth are allowed to consider such evidence. Contrary majority, to the I believe that the Commonwealth’s statutory sentencing cases, in capital scheme as amended to permit evidence, the admission of victim impact violates the Fourteenth Amendment to the United States Constitution. Accordingly, I must respectfully dissent. Tennessee,

In Payne (1991), L.Ed.2d 720 the United Supreme States Court held that Eighth Amendment to the United States Constitution erects no se bar per to the admission of victim evidence penalty phase of a explained case. The Court prosecution a legitimate has interest counteracting the mitigating evidence that a presents, defendant and that there is unfair nothing allowing about to consider the harm by caused the defendant at the same time that considers the defendant’s mitigating evidence. Id. at However, S.Ct. 2597. Payne also recognized Court victim impact might unduly prejudicial evidence be so so as to fundamentally unfair, render the trial thereby violating the Due Process Clause of the Fourteenth Amendment. Id. at 825, 111 Thus, S.Ct. 2597. instead of establishing bright-line regulating rules evidence, the admission of victim impact Payne expressly Court left to the states the decision of whether to admit victim impact evidence and how to structure admissibility. its Id. at 111 S.Ct. 2597.

Following Payne, Assembly General amended our state’s death permit, statute to virtually without qualification, the admission of victim at capital penalty (c)(2). hearings. 9711(a)(2), § See 42 Pa.C.S. The statute first allows present the Commonwealth to any evidence for purpose “the court deems relevant 9711(a)(2). Then, any guid- without Id. and admissible.” “it shall consider” ance, instructs statute at least one if it finds impact evidence Id. mitigating circumstance. one and at least circumstance 9711(c)(2). I the admis- majority, believe that Unlike fashion, to unguided in such of victim sion any whatsoever jury without direction used factors, violates the aggravating and balancing Due Process Clause required by the fairness fundamental Amendment. the Fourteenth enacted statutory amendments contrast I majority, the would endorsed Assembly and

General to rebut only where is relevant impact victim evidence allow mitigating circum- as a catch-all evidence introduced defense is, impact evidence in this manner Restricting victim stance.1 instance, prior law this Court’s case the first consistent with Fisher, 545 Pa. In Commonwealth on such evidence. (1996), the admis- Court concluded that 681 A.2d phase capital at trials should be penalty sion of evidence the to an specifically to that which is relevant enumerated limited Thus, if a defendant aggravating mitigating or circumstance.2 relating mitigating to chooses to introduce evidence one Fisher, 9711(e), § the Common- factors in Pa.C.S. based relevant to present then allowed to evidence wealth is Apply- mitigating evidence. rebutting specific the defendant’s case, reasoning to it makes sense ing this the instant impact the Commonwealth’s use of evidence restrict evidence a has introduced those instances where defendant provision.3 mitigating the catch-all under view, my impact is not even relevant 1. evidence sentencing proceeding evidence unless the defendant has introduced 9711(e)(8). § provision, 42 Pa.C.S. pursuant to the catch-all 9711(e)(8), "[ajny may present other evidence of a defendant Under mitigation concerning of the defendant and and record character of his offense.” the circumstances penalty Although case decided before Fisher involved a death 2. evidence, impact permit victim § 9711 was amended to Pa.C.S. directly applicable reasoning of here. Fisher is Saylor majori- concurring recognizes opinion, In his Justice that, Fisher, stating majority ty's "abandonfs] with decision conflicts Moreover, Fisher, jury’s unguided we found that the use of victim evidence in death weighing pro- cess was unconstitutional. 681 A.2d at 146^8. The trial court in Fisher jury told the consider the victim in deciding evidence whether to impose life sentence or the penalty.4 jury When the asked the court if impact evidence should as an aggravating be considered fac- tor, court jury told the to consider the evidence “mental- trial, ly.” appeal, Id. 148. On we found that court’s “clarifying” jury’s instruction did alleviate the confusion. result, Id. As a we concluded that jury may have consid- ered as aggravating an circumstance which “interjected arbitrary impermissible factor into the sentencing decision of jury.” language Id. The and focus 9711(c)(2), Pa.C.S. which majority concludes is constitutional, is essentially the same instructions we found to 9711(c)(2), be offensive in Fisher. Under Section instructed consider the victim evidence in weighing factors, and mitigating given but is no indication of properly how to incorporate the into its deliberation. With so little direction on how the victim is, evidence is to be applied, jury’s discretion effect, totally left unchecked. The amended thereby statute injects the very arbitrary impermissible kind of factor into jury’s the that prohibited decision this Court in Fisher, Fisher. See A.2d at 681 148.5 prevailing interpretation, concerning general the operation the penalty expressed death statute” as Fisher. 4. The jury trial court Fisher instructed the as follows: jury, you testimony Members the have now heard from the victim's mother, you may []. In order that meaningfully assess the Defen- blameworthiness, culpability dant’s moral and this evidence of the specific by you harm caused Defendant should be considered during penalty phase of this permit- trial. The Commonwealth is legitimate ted counteracting to and has a interest in the Defendant’s mitigating evidence.... at

681 A.2d McNeil, 42, majority ignores 5. The also Commonwealth v. Pa. 545 679 (1996), rejected A.2d 1253 weighing where this Court the standardless McNeil, impact testimony of victim penalty in death In deliberations. we impact vacated a death sentence where victim was

343 legislative scheme at by upholding the I that also believe case, majority impor- minimizes instant issue in the 238, 2726, 33 v. 92 S.Ct. Georgia, Furman 408 U.S. tance of Furman, (1972), progeny. its United and L.Ed.2d 346 a that discretion is afforded Couxt held where Supreme States of whether or grave on matter so the determination jury executed, that discretion must be not a should be defendant the risk of and limited so as to minimize suitably directed (Stew- Id. 309-310 wholly arbitrary capricious and action. ai’t, incorporating J., concurring).6 Prior the amendment evidence, of victim the United States the admission Pennsylvania’s penalty stat- Supreme Court found death precisely ute constitutional because the restricted and was mitigating guided weighing aggravating and fac- employed. Blystone v. Pennsylva- tors that the statute See 1078, nia, 303, 299, 110 108 L.Ed.2d 255 494 U.S. S.Ct. px-operly (1990)(holding statute constitutional because it ac- jury and allowed the commodated concerns Furman evidence). mitigating By providing proper all consider evidence, for the consideration of victim guidance arbitrary process unconstitutionally and statute renders the required disrupts weighing process cai’eful cases Penry Lynaugh, under federal constitution. See v. 492 presented penalty hearing. Although pre- at the McNeil was also a case, inability amendment our concern was an to determine how the weighing considered recognized We and circumstances. Id. at 1259. may improperly tip have relied on the victim judicial penalty. balance in favor of death Id. 362, Maynard Cartwright, 6. See. v. 486 U.S. 108 S.Ct. (1988)(channeling limiting jury’s discretion in L.Ed.2d and imposing require is a sentence fundamental constitutional Ramos, ment); v. 103 S.Ct. California (1983)(capital sentencing procedures must constrain and L.Ed.2d guide jury's discretion to ensure the death is not meted 420, 428, Godfrey Georgia, arbitrarily capriciously); 446 U.S. out v. (1980) (states jury's 64 L.Ed.2d 398 channel the must objective specific provide clear and discretion standards meaningful, guidance appellate detailed and that facilitate rational sentence); jury's impose Gregg review of the decision to a death (1976)(dictat Georgia, 428 U.S. 96 S.Ct. L.Ed.2d 859 have). ing type jury and extent of discretion the must and must not 302, 326, 109 (1989)(unbridled 2934, 106 L.Ed.2d 256 capital sentencing discretion in is unacceptable). to Pennsylvania, contrast New Jersey has instituted

procedures governing the admission and of victim impact use that, my opinion, properly jury’s evidence channel discre- tion in capital sentencing proceedings. Under the New Jersey statute, penalty jury allowed to consider victim impact only if prosecution proven evidence has at least one statutory beyond doubt, factor a reasonable at jurors least of the finds one evidence defendant’s pursuant character or record catch-all cir- 2C:ll-3c(5)(h). cumstance. N.J.S.A. if those require- Even met, only jury ments are can use victim statements for determining weight how much to afford the catch-all 2C:ll-3c(6). mitigating circumstance. Id. To help further capital sentencing ensure fundamental fairness in proceedings, Jersey Supreme the New Court has also adopted series of governing rules the admission of victim impact evidence. See Muhammad, State v. 145 N.J. 678 A.2d 179-81 statute, Jersey Unlike the the New statute does allow a use as a general aggravating factor or as a of weighing means the worth of the against Instead, defendant the worth of the victim. permissible use for victim evidence is to assist the in determining the appropriate weight give the catch-all mitigating circumstance. Id. at 179.

To infirmity correct the constitutional Pennsylvania’s would, statutory scheme, current pursuant I to this Court’s rule-making power, a set of procedural safeguards establish penalty ensure that the death is meted out with proper guidance is not imposed or arbitrary capricious Florida, 939, 960, manner. Barclay See 463 U.S. 103 S.Ct. (1983)(Stevens, J., 77 L.Ed.2d 1134 concurring in judg- ment)(capital require cases procedural protections to ensure imposed the death will be in a consistent and manner). rational Borrowing heavily from the New Jersey scheme, I adopt following would rules for the use of victim testimony at trials in this Commonwealth: defendant, to

1) notify prior must Commonwealth The testimony in trial, impact to introduce victim its intent penalty phase. 2) may impact testi- introduce The Commonwealth if, presents evidence if, defendant

mony only 42 Pa.C.S. mitigating provision, to catch-all pursuant 9711(e)(8). circumstances, 3) only one witness should special Absent help to family order testify of the victim’s on behalf of the defen- make an informed assessment jurors culpability moral and blameworthiness. dant’s with 4) defendant provide must The Commonwealth plans to call so impact of the victim witness name to opportunity inter- counsel will have that defense testimony. or her prior to his view the witness impact 5) present to not be allowed Minors should and the evidence, no adult survivors unless there are living the closest relative. child therefore to 6) writing must reduced impact statement The victim to review opposing court and counsel for the trial thereby potential prejudicial advance, reducing the content.

7) proffered trial court should hear The preliminary make a presence outside the of the victim admissibility to the determination evidence, if the victim witness determine overly without an present the statement to the can permitted display. The witness will be emotional previously testimony. approved her read his or general 8) to a factual must be limited The statement victim, including regarding information profile family, employment, education and interests. victim’s generally The can describe family. on his or immediate victim’s death her emotional, factual, and free of testimony should be trial court inflammatory comments or references. The family to remind the victim’s opportunity should take permit any that the court will not testimony concerning family’s characterizations and opinions about the crime, defendant, the or appropriate sentence. Be- difficulty placing cause the inherent any meaningful scope, constraints its nature and testimony regarding any the effect of the victim’s death on “community,” defined, permitted. however should not be 9) Any comments about closing evidence in

argument strictly approved are limited the previously testimony of the witness.

10) specific Although language mandated, is not the trial give jury

court must instructions with consistent to above rules order ensure the fundamental fairness capital minimum, sentencing procedure. aAt a) trial must jury court instruct the that: Common- prove aggravating beyond wealth must circumstance to jurors a reasonable doubt all order for the to b) circumstance; consider the jury may consider impact victim if evidence the defendant presents pursuant evidence to the catch-all mitigating c) and provision; victim impact may only evidence be used to how weight determine much should be accorded circumstance, mitigating to the catch-all support aggravating justify circumstances or a death sentence. safeguards, missing

These which are from the statute, prevent would from using impact victim evi- arbitrary in an capricious dence manner deciding when penalty whether the death is an appropriate In my sentence. view, death, when the choice is between life and the failure to procedural have safeguards such is incompatible with command the Fourteenth requiring Amendment fundamen- tal in capital sentencing fairness proceedings. See Lockett Ohio, 586, 438 98 57 L.Ed.2d 973 (1978)(plurality opinion)(the risk that the death will be imposed despite may which factors call for a less severe

347 incompatible with the Fourteenth unacceptable and penalty is Amendment).7 limit the ad- procedural protections would

Adopting these instances where victim evidence those missibility of proffers a defendant rebutting evidence that it is relevant jury’s mitigating provision and restrict under catch-all determining weight much how use of such evidence to than Rather catch-all circumstance. afford the in ad- removing trial court’s sound discretion completely evidence, simply rules mitting these relevant may in which parameters define the still by juries. Trial courts would and considered introduced safeguards especially important are because the procedural 7. These rights yet approved have not a victim's voters of this Commonwealth specifically evidence should mandate amendment to thirty-two twenty years, In the last states be admitted in cases. rights their to include victim's amend- have amended constitutions (1994); § 24 557 Alaska Const art. I ments. Ala. Const amend. See I, II, (1982); (1994); (1990); § § art. art. 2.1 Const, Cal. Ariz Const I, II, (1996); (1992); 8(b) § § 16a Conn. Const art. Colo. Const art. I, I, (1988); (1994); § § 16 art. art. Const, Const, Idaho III Fla. I, I, (1992); 13(b) (1996); § art. § 8.1 Const art. Kan Ind Const Const XV, I, (1992); (1998); § § art. art. La Const Md. Decl. Const I, Rights (1994); (1988); § art. Miss Const art. art. 47 Mich Const I, I, (1992); (1998); § 32 3 26A Mo Const art. art. Const, Neb. I, I, ¶ (1996); (1991); (1996); 8(2) § art. 22 Const art. N.J. Const, Nev I, II, (1996); (1991); § § 24 N.C. 37 N.M. Const art. art. Const, Ohio II, I, 10(a) (1994); (1996); § § Okla. Const art. 34 art. Const, Or Const. I, I, I, (1999); (1986); § § R.I. 23 art. art. 42 Const art. S.C. Const I, I, (1996); (1998); § § § 30 Tenn Const art. 35 Tex Const art. I, I, (1989); (1994); 8(A)(1996); § § art. art. Va. Utah Const Const I, I, (1989); 9(m) (1993). art. Wis Const art. Const, Wash Supreme effectively significance Jersey explained The New Court rights legislative when it of a victim's amendment slated authority Jersey’s impact directly New statute is traced to enact Muhammad, Rights A.2d at to the Amendment. 174. Victim's explained court further that: Amendment, Rights might we have In absence of Victim’s impad to hold that victim evidence should be admitted continued during However, sentencing phase of a the elector- case. Amendment, ate, by Rights which is intended to passing the Victim's rights afford whatever could afforded to them without victims Constitution, Legislature, by violating United States and the impact enacting ment, effectuate that amend- statute] order to [the mandated that victim evidence be admitted. have Id. admit, admit, authority maintain and discretion to or not evidence, provided relevant victim defendant has opened door to presenting mitigating such evidence addition, provision. under the catch-all ensur- evidence instructed, ing juries appropriately are Commonwealth with problems weighing we can further alleviate proper appellate jury’s evidence and facilitate of a review impose penalty. decision Restricting jury’s the death of victim consideration this manner bal- justice during sentencing, allowing ances the scales proper punishment decide the based on evidence that way properly relevant and such a its discretion channeled.

773 A.2d Pennsylvania, Appellee v. COMMONWEALTH of NATIVIDAD, Appellant. Ricardo Supreme Pennsylvania. Court

Argued Oct. 25, 2001. Decided June

Case Details

Case Name: Commonwealth v. Means

Court Name: Supreme Court of Pennsylvania

Date Published: Jun 25, 2001

Citation: 773 A.2d 143

Docket Number: 91

Court Abbreviation: Pa.