COMMONWEALTH of Pennsylvania, Appellee v. Ricardo NATIVIDAD, Appellant.
Supreme Court of Pennsylvania.
June 25, 2001.
773 A.2d 167 | 565 Pa. 348
Argued Oct. 18, 1999.
Zappala, J., filed a cоncurring and dissenting opinion in which Flaherty, C.J., joined.
Nigro, J., filed a concurring and dissenting opinion.
Robert A. Graci, Harrisburg, for appellee, Office of Atty. Gen.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
CAPPY, Justice.
This is a direct appeal from the sentence of death imposed by the Court of Common Pleas of Philadelphia County. The Supreme Court of Pennsylvania has appellate jurisdiction over direct appeals from the imposition of a sentence of death.
In the early morning hours of November 9, 1996, Michael Havens was robbed at gunpoint and his dark blue Lincoln was stolen. On the night of November 9, 1996, Robert Campbell was shot during a robbery; the shooter fled in a dark Lincoln. Appellant was charged in separate indictments for the robbery of Michael Havens and the murder of Robert Campbell. The two indictments were consolidated for trial. On November 10, 1997, a jury convicted appellant of first degree murder in the death of Robert Campbell.
At the penalty phase, the jury found two aggravating circumstances: that the killing occurred while in the perpetration of a felony,
Although appellant has not specifically challenged the sufficiency of the evidence supporting the conviction of first degree murder, in all cases where the death penalty has been imposed, this Court automatically conducts such a review. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh‘g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). When reviewing the sufficiency of the evidence, we must determine whether the evidence and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, support the jury‘s finding that all elements of the offense have been established beyond a reasonable doubt. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). The evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the accused did the killing, and that the killing was done with premeditation or deliberation. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (1991).
The evidence presented at trial established appellant‘s involvement in certain activities beginning at 2:00 a.m. on November 9, 1996 and continuing through to approximately 11:00 p.m., November 9, 1996. About 2:00 a.m. on November 9, 1996, Michael Havens stopped to get a sandwich at Philly‘s Famous Cheesesteaks at the intersection of Island and Elmwood Avenues in Philadelphia. (Notes of testimony, hereinafter “N.T.“, 11/5/97 p. 147-148). Upon returning to his car with the sandwich, Mr. Havens was approached by two men. (N.T. 11/5/97, p. 149). Mr. Havens’ car was a dark blue Lincoln that he recently had purchased. (N.T. 11/5/97, p. 146). As Mr. Havens was entering the combination to unlock the front driver‘s dоor of the Lincoln, appellant interrupted Mr. Havens by pointing a stainless steel revolver with rubber grips at him. (N.T. 11/5/97, p. 149). Another man, acting in concert with appellant, approached Mr. Havens at the same time, standing behind him while appellant faced him with the gun. Mr. Havens gave his wallet and car keys to appellant. Appellant ordered Mr. Havens into the car. When Mr. Havens hesitated, appellant threatened to kill him in the parking lot if he refused to get into the car.
Mr. Havens sat in the back seat of the car. Appellant sat in the front seat of the car on the passenger side. Appellant sat facing Mr. Havens, with the gun aimed at Mr. Havens throughout the time they were in the car. Appellant‘s accomplice drove the vehicle. (N.T. 11/5/97, p. 149-154). Over the next fifteen to twenty minutes, appellant repeatedly threatened to shoot Mr. Havens while demanding more money from him. Mr. Havens gave appellant and his accomplice the cash from his pocket and begged to be released from the vehicle. Appellant requested Mr. Havens’ money access card and that Mr. Havens access the account to get them additional funds.
At approximаtely 7:00 p.m. on the evening of November 9, 1996, appellant, driving a blue Lincoln, met his friend, Byron Price, near 60th and Catherine Streets in Philadelphia. Mr. Price testified that this was the first time he had been seen appellant in possession of a dark blue Lincoln. (N.T. 11/6/97, p. 8). The two men planned to spend the evening together watching a boxing match. Mr. Price sat in the passenger seat of the Lincoln; appellant drove. Appellant pulled the car into an EXXON gasoline station at the corner of 60th and Catherine Streets. Appellant told Mr. Price to wait. While sitting in the car, Mr. Price heard a gunshot. (N.T. 11/6/97, p. 9). Appellant ran back to the car with a chrome revolver in his hand. Mr. Price noticed that a man he had formerly observed standing by a car in the gas station was now lying on the ground. Dropping the gun in his lap, appellant quickly made a U-turn out of the EXXON station and sped away on 60th Street. Mr. Price asked appellant why he shot the man. Appellant replied, “he drew on me.” (N.T. 11/6/97, p. 15).
Mr. and Mrs. Johnson had been leaving their home across the street from the EXXON station at the time of the shooting. (N.T. 11/6/97, pp. 76, 92). They were unable to identify appellant; however, they testified that the shooter left the EXXON station in a dark Lincoln. (N.T. 11/6/97, pp. 78, 94). They each, independently, testified to the following observation: the victim raised his hands in the air and then fell backwards at the same time that a gunshot was heard. The shooter was wearing a lumberjack style jacket at the time of the incident. After the gunshot, the shooter jumped into the
On November 11, 1996, Philadelphia police recovered a dark blue Lincoln that had been abandoned and set on fire. (N.T. 11/5/97, p. 197). From the trunk of the car, the police recovered a lumberjack style jaсket. Mr. Havens identified the burnt Lincoln as the car appellant had stolen from him at gunpoint on the morning of November 9, 1996. (N.T. 11/5/97, p. 157). Mr. Havens also identified the jacket recovered from the trunk of the car as his own jacket that he had left in the car at the time of the robbery. (N.T. 11/5/97, p. 158).
The day after the murder, appellant made statements to several of his acquaintances taking credit for having shot the man at the EXXON station. (N.T. 11/6/97, pp. 156, 163, 182). Several weeks after the incident, appellant approached his friend Keith Smith while Mr. Smith was helping Carl Harris wash Mr. Harris‘s car. (N.T. 11/6/97, p. 107). Mr. Harris testified that he observed Mr. Smith and appellant engage in a conversation, out of his hearing, and then walk around the corner from where Mr. Harris was standing. (N.T. 11/6/97, p. 110). When Mr. Smith returned after parting from appellant, Mr. Smith had in his possession a chrome .357-Magnum firearm. (N.T. 11/6/97, p. 114). Sometime in December of 1996, Mr. Smith gave a .357 revolver to his attorney, Mr. Spina. (N.T. 11/7/97, p. 15). Attorney Spina immediately notified Philadelphia homicide detectives that he had the gun in his possession. (N.T. 11/7/97, p. 16). The homicide detectives recovered the revolver from Mr. Spina‘s office and turned it over to the Philadelphia crime lab for testing.
Based on information received in their investigation, the police obtained an arrest warrant for appellant in December of 1996. (N.T. 11/7/97, p. 128). However, it was not until March 17, 1997 that appellant was apprehended. Following appellant‘s arrest, Mr. Havens, the victim of the robbery of the Lincoln, came to the police station to view a photographic array. Upon viewing the array, Mr. Havens positively identified a photograph of appellant. (N.T. 11/5/97, p. 173).
Based upon the above-presented facts, sufficient evidence was established to support beyond a reasonable doubt appellant‘s conviction for first degree murder in the death of Robert Campbell. We will now proceed to address appеllant‘s allegations of error. We note that we will not be addressing these allegations in the order presented in appellant‘s brief, choosing instead to address the claims regarding trial error before turning to the claims regarding error in the penalty phase of the proceedings.
In his first claim, appellant alleges that the court erred in failing to sever the two indictments at issue. As revealed in the above summary of the facts, appellant was tried on consolidated indictments. One indictment charged appellant for the robbery of a motor vehicle, and the robbery and kidnapping of Michael Havens with the use of a firearm. The second incident concerned the robbery and shooting of Robert Campbell. The Commonwealth had moved, prior to trial, to consolidate the two indictments, as the circumstantial evidence from the crimes involving Mr. Havens implicated appellant in the shooting of Mr. Campbell. The Commonwealth‘s motion was granted over appellant‘s objection. Appellant renewed his objection to consolidation and requested the indictments be severed immediately prior to trial. Appellant now claims that
Crimes charged in separate indictments may be tried together where the evidence of each of the offenses would be admissible in a separate trial for the other and the evidence is capable of separation by the jury so that there is no danger of confusion. Pa.R.Crim.P. 1127(A)(1)(a) and (b). Whether indictments should be joined or severed is a matter entrusted to the discretion of the trial judge and the decision of the trial judge will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). Evidence of another crime is admissible where the conduct at issue is so closely related that proof of one criminal act tends to prove the other. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Such evidence is particularly relevant to prove identity. Commonwealth v. Reid, 533 Pa. 508, 626 A.2d 118, 119 (1993).
At issue in the second indictment was the identity of the person who shot Robert Campbell. The person who shot Robert Campbell committed the crime with a large chrome revolver, possibly a .357 Magnum. He was seen leaving the shooting wearing a lumberjack style jacket driving a dark Lincoln. Michael Havens owned a dark blue Lincoln. A man carrying a large silver gun, possibly a .357 Magnum robbed Mr. Havens of that vehicle at gunpoint. In the trunk of Mr. Havens’ Lincoln was a lumberjack style jacket owned by Mr. Havens. The evidence from the robbery of Mr. Havens’ vehicle was relevant to establish the identity of the person who shot Robert Campbell. Given the temporal separation and thе distinct nature of the conduct at issue in the two incidents, we believe that the jury was capable of keeping the evidence separate as to each criminal act. Appellant fails to allege any specific prejudice resulting from the consolidation of the two indictments for trial. Appellant puts forth only a scant single paragraph in support of his claim, arguing a potential prejudice arising simply from the fact of consolidation itself. Arguing a potential for error is insufficient to
Appellant‘s next claim is that the trial court erred in refusing to suppress the identificаtion evidence regarding Mr. Havens’ selection of appellant‘s photograph. Appellant alleges that the identification by Mr. Havens was tainted as Mr. Havens had previously viewed appellant‘s likeness on television.
The reliability of a challenged identification is judged under the totality of the circumstances. Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990). Once an independent basis has been established for the witness‘s identification testimony, it is admissible. Id. The testimony at the suppression hearing was that Mr. Havens immediately selected appellant‘s photograph upon viewing the array. (N.T. 11/5/97, p. 59). There was no indication that the array itself was suggestive in any manner. The detective who presented the array to Mr. Havens was unaware that Mr. Havens had seen appellant‘s photograph on television until after the selection was made. (N.T. 11/5/97, p. 68). Mr. Havens did not indicate that his selection of the photo was affected by viewing appellant‘s likeness on television. (N.T. 11/5/97, p. 186). Appellant‘s likeness had been on television in relation to the efforts of the fugitive squad to effectuate his arrest as the warrant had been issued on December 31, 1996 and appellant was not apprehended until March 17, 1997. The photograph used on television was not the same photograph used in the array shown to Mr. Havens. (N.T. 11/5/97, pp. 69-70). Mr. Havens testified that when he was initially assaulted by appellant in the parking lot of the Philly‘s Famous Cheesesteaks there was sufficient lighting for him to observe appellant‘s face. During the fifteen to twenty minutes Mr. Havens was held at gunpoint in the car, appellant at all times faced Mr. Havens, and there was sufficient light inside the car for Mr.
Appellant alleges in his next claim for relief that the trial court erred in allowing the testimony of Attorney Spina. Appellant offers an undeveloped argument that the Commonwealth committed prosecutorial misconduct in forcing Mr. Spina to disclose the identity of the person who placed in his custody the .357 Magnum, which was then introduced as evidence at appellant‘s trial. As appellant fails to articulate the basis for his theory that it was somehow improper for the Commonwealth to procure the testimony of Mr. Spina on this point, we are at a loss as to how to respond. The doctrine of relaxed waiver will not cure the failure to present a cogent theory for relief. See Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (1995). However, we will review the allegation of error insofar as it raises a general question as to the admissibility of the .357 Magnum obtained from Attorney Spina as relevant evidence in the prosecution of Appellant.
The admission of evidence is subject to the discretion of the trial court. Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344 (1998). Evidence that is relevant and material to the inquiry at hand will be deemed properly admitted absent an abuse of the trial court‘s discretion. Id. The evidence at trial revealed that appellant had a gun identical in appearance to the one introduced at trial, which he pointed at Mr. Havens when forcibly taking possession of Mr. Havens’ vehicle. Appellant had a gun matching the description of the one presented at the trial when he got into the cаr with Mr. Price after shooting Mr. Campbell. Appellant was seen in conversation with Mr. Keith Smith. At the conclusion of that conversation, Mr. Smith was in possession of a gun matching the description of the firearm seen in appellant‘s possession by Mr. Havens
The circumstantial evidence connecting the gun to appellant and the criminal acts at issue was sufficient to justify admission of the firearm into evidence. There was no abuse of discretion by the trial court in admitting the testimony of Mr. Spina regarding the manner in which he came into possession of the firearm at issue. Any uncertainty that this particular gun was not the weapon used by appellant went to the weight of the evidence. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). Insofar as admissibility is concerned, we discern no abuse of discretion by the trial court in allowing the testimony of Mr. Spina. Nor, given the absence of any argument on this point, can we find any evidence of prosecutorial misconduct in subpoenaing Mr. Spina to testify in this manner.
In his final claim of trial court error, which also extends into an argument in the penalty stage, appellant alleges that there was insufficient evidence to support his conviction of robbery as to Robert Campbell. Appellant argues there was no evidence that at the time Robert Campbell was shot a robbery was in progress. A robbery is committed where the perpetrator attempts to commit a theft by threatening another with serious bodily injury.
A robbery is completed when an attempt is made to take the property of another by force or threat of force. Commonwealth v. Thompson, 538 Pa. 297, 648 A.2d 315 (1994). There is no requirement that the robbery be successful. The circumstantial evidence when viewed in the light most favorable to the Commonwealth as verdict winner, supports the inference that Mr. Campbell was the victim of a robbery at the time he was shot. Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). As we find that there was sufficient evidence to sustain the conviction for robbery of Mr. Campbell, we also find that appellant‘s allegation that this evidence was insufficient to permit introduction of the aggravating circumstance related thereto during the penalty phase is also without merit. See
Appellant‘s remaining contentions conсern the introduction of victim impact testimony in the penalty phase of his trial. Appellant challenges the constitutionality of
In Means, the trial court sustained the defendant‘s constitutional challenge to the portions of
Although we reject appellant‘s constitutional attacks on the validity of
the family of the victim. Evidence of aggravating circumstances shall be limited to those circumstance specified in subsection (d).
* * *
(c) Instructions to jury.—
(2) The cоurt shall instruct the jury that if it finds at least one aggravating circumstance and at least one mitigating circumstance, it shall consider, in weighing the aggravating and mitigating circumstances, any evidence presented about the victim and about the impact of the murder on the victim‘s family. The court shall also instruct the jury on any other matter that may be just and proper under the circumstances.
As amended, 1995, October 11, P.L. 1064, No. 22 (Special Session No. 1), § 1.
Although this objection as to notice was not raised before the trial court, under our doctrine of relaxed waiver, applicable only in direct appeals of capital cases, we will address the claim. Zettlemoyer, 454 A.2d at 942 n. 3. Adequate notice is one of the essential elements of procedural due process. Commonwealth v. Thompson, 444 Pa. 312, 281 A.2d 856, 858 (1971). We agree that the better practice is to require notice of the intent to introduce victim impact testimony prior to trial. A requirement of noticе prior to trial enables the defendant to investigate the background of the decedent, and prepare for potential victim impact testimony prior to jury selection. Nor is it a burden for the Commonwealth to provide pretrial notice limited to a list of potential witnesses and a brief outline of their proffered testimony.
However, addressing future procedure does not resolve the issue herein. The question of the adequacy of the notice given in the instant matter must be resolved on the record presented. The Commonwealth gave appellant notice at the conclusion of the guilt phase, on November 10, 1997, that it planned to present Robert Campbell‘s widow in the penalty phase as a victim impact witness. The penalty phase was scheduled to commence on November 12, 1997, as the intervening day was a court holidаy. On the afternoon of
BY MR. SAX:
Q. Mrs. Campbell, Bob Campbell was your Husband?
A. Yes.
Q. Did you prepare a so-called victim impact statement for the jury?
A. Yes, I did.
Q. Would you please read it to be the ladies and gentlemen of the jury if you have a copy of it in front of you.
A. Yes, I do.
Q. Please read it.
Q. Slow down a little bit.
The Court: Go Ahead. (sic). That‘s all right. Go ahead. Take your time.
The Witness: We have four children and two grandchildren whom he adored. Bob was a loving husband, father, grandfather and son. Bob never hesitated to come to the aid of anyone who needed help. Bob was a fun loving guy who loved and respected life. Bob coached and organized little league baseball for the Overbrook AA for many years. He also coached for Our Lady of Lourdes Football and Basketball teams. Bob was an active town watch member and was very involved in his community. Since the death of my husband our family has been devastated. I have now become the sole provider for my family, something I have never had to do before. Our grandson Andrew who will be seven years old remembers when Grandpop taught him to hit his first baseball but Bob never had a chance to see his Grandson play in his first game. Our Granddaughter Samantha who turned two on the 4th of July will only remember her Pop Pop by the pictures we have to show her. Our youngest daughter Amanda will not have her father present at her high school graduation or have him give her away at her wedding like he did our oldest daughter Michelle. Our sons John and Ken will no longer be able to ask their father for advice or share their day-to-day experiences with Bob.
We lost a loving husband, father, grandfather and son who was always there when we needed him. We are living with a huge void in our lives. Life has not been the same without him. Gone are the big arms he would put around me and the times we would walk the dog together holding
We are thankful for Bob Campbеll‘s life, his courage, and diligence in the face of all odds, and for his loving of family and friends. Rest assured that Big Bob Campbell will always remain in our hearts.
Mr. Sax: Thank you. Thank you.
The Court: Any Questions?
Thank you, Mrs. Campbell, you may step down.
N.T. 11/12/97 pp. 56-59.
As stated above, appellant makes no specific claim of prejudice, presenting only a general argument that greater notice should have been provided. Appellant was formally advised of the intent to call Mrs. Campbell as a victim impact witness at 3:00 p.m. on November 10, 1997. Within a few hours of that notification appellant was provided with a written statement of Mrs. Campbell‘s proposed testimony. Appellant was also permitted to redact portions of the proposed testimony prior to Mrs. Campbell taking the stand. Appellant made no objection then, nor does he do so now, as to how additional time would have altered his handling of this witness. Appellant had more than twenty-four hours tо discover information relevant to Mrs. Campbell‘s credibility and to investigate the specific information about Robert Campbell‘s life prior to the statement being presented to the jury. We can discern no prejudice suffered by appellant on the record presented. Accordingly, although we reject appellant‘s specific claim of error, we reaffirm our position that in all future cases, notice must be provided prior to trial.
Finally, appellant broadly argues that insufficient structure was provided for the jury on how to consider victim impact testimony within the deliberative process. In Means, we discussed this broad allegation of error and found that the absence of specific instructions on what weight should attach to victim impact testimony did not affect the constitutional balance of the sentencing scheme. Id., 565 Pa. at 326, 773
Now, when voting on the general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what the other jurors believe.
This different treatment of aggravating and mitigating circumstances is one of the law‘s safeguards against unjust death sentence. It gives the defendant the full benefit of
Now, members of the jury, you have heard testimony about the victim and about the impact of the killing on the victim‘s family.
Victim impact is not an aggravating circumstance, may not be so considered and is not a reason to impose the death penalty. Should you find at least one aggravating circumstances and at least one mitigating circumstance, only then may you even consider this testimony and only for the very limited purpose of helping you to determine whether or not the aggravating circumstance outweigh the mitigating circumstance.
The sentence you impose must be in accordance with the law as I instruct you and not based on sympathy, prejudice, emotion, or public opinion and not based on victim impact.
N.T. 11/12/97 p. 146.
The instructions recited above provided sufficient structure for the jury to properly consider the testimony оf Mrs. Campbell in relation to all other relevant information pertinent to the deliberative process in imposing sentence in this case. The jury was directed to consider victim impact testimony only if it first found at least one aggravating circumstance and one mitigating circumstance, and only to consider the information within the weighing process. The jury was directed to eliminate sympathy, prejudice, emotion and public opinion from its consideration and told that its verdict could not be based on victim impact. The instruction adequately channeled the focus of the jury on concerns appropriate to its sentencing function and away from arbitrary and capricious factors. The language employed is consistent with the prototype instruction offered in Means. We find no merit to this claim of error.
The judgment of sentence of death is affirmed.5
Justice SAYLOR concurs in the result.
Justice ZAPPALA files a concurring and dissenting opinion in which Chief Justice FLAHERTY joins.
Justice NIGRO files a concurring and dissenting opinion.
ZAPPALA, Justice, concurring and dissenting.
I agree that Appellant‘s claims of error regarding the guilt phase of this capital case do not entitle him to relief. I disagree, however, with the affirmance of Appellant‘s sentence of death because victim impact evidence was unconstitutionally presented in the penalty phase of Appellant‘s trial. For the reasons set forth in my dissenting opinion in Commonwealth v. Means, I would reverse Appellant‘s sentence of death and remand to the common pleas court for a new penalty hearing.
Chief Justice FLAHERTY joins this concurring and dissenting opinion.
NIGRO, Justice, concurring and dissenting.
I agree with the majority‘s conclusion that the Commonwealth established sufficient evidence beyond a reasonable doubt to support Appellant‘s conviction for first-degree mur-
For the reasons more fully explainеd in my dissenting opinion in Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001), I believe that the statutory provisions governing victim impact evidence in the penalty phase of capital cases,
In addition, I cannot agree with the majority‘s conclusion that, under the specific facts of this case, Appellant received adequate notice of the Commonwealth‘s intent to introduce victim impact testimony at the penalty phase. The majority places great weight on the fact that Means was not decided at the time of Appellant‘s trial. I fail to see how that fact is relevant to the issue of whether Appellant‘s constitutional rights were violated. The majority notes that “the better practice is to require notice of the intent to introduce victim impact testimony prior to trial.” Majority Opinion, 565 Pa. at 366, 773 A.2d at 178. In my view, however, prior notice is not just the better practice, but a constitutional due process requirement. The majority states that, in the future, the Commonwealth must notify a defendant prior to trial if it intends to use victim impact testimony at the penalty hearing. Inexplicably, however, the majority fails to apply that require-
Notes
§ 9711. Sentencing procedure for murder of the first degree
(a) Procedure in jury trials.—
(2) In the sentencing hearing, evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible. Additionally, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed. Evidence shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e), and information concerning the victim and the impact that the death of the victim has had on
To further the goal of admitting relevant victim impact testimony, while eliminating the potential for impassioned emotional appeals to the jury, we recommend the following instruction be employed in cases in which victim impact testimony has been received:
The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not evidence of a statutory aggravating circumstance and it cannot be a reason by itself to impose the death penalty. The introduction of victim impact evidence does not in any way relieve the Commonwealth of its burden to prove beyond a reasonable doubt at least one aggravating circumstance. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances have been proven beyond a reasonable doubt independent from the victim impact evidence, and if one or more jurors has found that one or more mitigating circumstances have been established by a preponderance of the evidence. Victim impact evidence is simply another method of informing you about the nature and circumstances of the crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather, victim impact shows that the victim, likе the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. The sentence you impose must be in accordance with the law as I instruct you and not based on sympathy, prejudice, emotion or public opinion and not based solely on victim impact.
Id. Pa. at, 773 A.2d at 159.