*1 rape because their regarding prior preju- statements However, value. I outweighed probative dicial effect their discretion, do not believe the record shows an abuse of that cautionary of the trial excellent particularly judge’s view the limited for jury explaining purpose instruction to was allowed. Appellee’s which this “other-crimes” evidence and, there- properly statements were admitted evidence fore, I reached majority. concur the result
Argued Sept. 1984.
Decided June 1985. Reargument Sept. Denied *5 Williams, Erie, Dennis V. for appellant. Vechecco,
Michael Erie, J. Atty., Dist. Shad Connelly, for appellee. NIX, C.J., LARSEN,
Before FLAHERTY, McDER MOTT, HUTCHINSON, PAPADAKOS, ZAPPALA and JJ.
OPINION THE OF COURT PAPADAKOS, Justice.
I. INTRODUCTION are presently We required review conviction of murder of degree the first and the death sentence Alan 9711(h).1 Pa.C.S. pursuant Lee Pursell (Appellant) § *6 28, 1981, and July charged on with Appellant was arrested of a thirteen-year-old boy, death criminal homicide for the was found in a Brine, body wooded Christopher whose Erie Township, County, Pennsyl- of Park section Lawrence nude, battered, and bloody. The corpse vania. was jury tried to with Honorable Jess S. Appellant was Erie Court of Common County presid- of the Pleas Jiuliante 26, 1982, and, its verdict ing on returned thereafter, degree. of murder of the first Immediately conducted, sentencing proceeding following separate Appellant which the same determined that be sen- to death. argued tenced Post-verdict motions were before a court en banc which denied same, triggering this automatic appeal. insufficient
Appellant argues first evidence exists to of the first support degree. a conviction of murder Our record, independent giving review of the entire all reason- Commonwealth, able inferences to the discloses sufficient support evidence to the conviction murder of the first based the facts we have from the degree upon gleaned record. 24, 1981, in secluded wooded July
On area Lawrence Park found the nude Township, Feeney James victim’s 9711(h) provides: 1. 42 Pa.C.S. § SENTENCING (h) Review of death sentence.— (1) subject A sentence death shall be review automatic Supreme Pennsylvania pursuant Court of to its rules. trial, (2) authority In to its to correct errors at the Su- addition preme Court shall either affirm the sentence of death or vacate the imposition imprison- sentence of death and remand for the of a life ment sentence. (3) Supreme The Court shall affirm the sentence of death unless it determines that: (i) product passion, prejudice the sentence of death was the or factor; any arbitrary other (ii) support finding aggravating the evidence fails to of an (d); specified circumstance in subsection (iii) disproportionate sentence of is excessive or to the death cases, penalty imposed considering in similar both the circumstanc- of the crime and the character and record of defendant. es its face A body, drenched with blood. tree twenty-five foot lay across branch the throat which was wrapped shirt material. After viewing the corpse, County Coroner estimated that had victim been dead for twelve to hours, fifteen placing the time of death midnight between o’clock, a.m., and three 1981. An July autopsy death, revealed that prior to the victim had sustained fifteen blows to the head jagged, with a blunt object, and had bruises, nose, suffered various a broken internal hemor- neck, in the rhaging swollen eyes, and a crushed windpipe. windpipe crushed was determined to be the cause of death, death. After the victim’s his body was subjected to parts torso, burns on and trauma to the chest and scrotum, part of which was crushed.
A blood-covered jagged rock was found near the body. The victim’s; blood was similar to the the lacerations and punctures on the victim’s head were caused this rock. rocks nearest were two hundred feet from the body and were similar to the rock used to strike the victim. A pair of glasses found near the body was identified as those made Appellant sold to optometrist, his Dr. Perry. On 25, 1981, July the day death, following Appellant re- turned to Dr. Perry another, and ordered pair identical glasses.
Blood found on Appellant’s shoes was consistent with that of the victim’s. Blood was also found on other items of clothing worn by Appellant on July 1981. This blood could not be accurately examined because the clothes had been washed.
Appellant’s mother testified Appellant that came home on 23, 1981, July at 10:30 p.m. She recalled that he was covered with blood and asked her to say that he had come home early. Mrs. Pursell also testified that she was ex- tremely upset when she heard about the murder on the evening 24, 1981) news (July much so that required she —so medication to calm down—and Appellant was aware her reaction upon hearing of the victim’s death. 27, 1981, listening to a newscast while
Finally, July case, turned to his Appellant in this developments reporting o’clock watching the seven with whom he was girlfriend, newscast, thought person could be and asked whether she mention had made glasses. No been through traced his found at the scene. had been report glasses any together, jury of these circumstances Taking all Chris young conclude a reasonable doubt beyond could From the nature of Brine’s death was a homicide. topher the homicide was further infer that jury could injuries, the victim was assaulted and malicious. Since intentional feet from its natural carried hundred with a rock two that the was killing could conclude resting place, conclude that Appel could Finally, premeditated. found glasses the crime since his were at lant committed found on his shoes matched the scene and since blood we are satisfied that Accordingly, that of the victim’s. record support jury’s evidence exists sufficient and dismiss degree, Appel murder of the first verdict of challenge. sufficiency lant’s
II. CHANGE VENUE refusing trial court erred in argues that the Appellant change ground motion for a of venue on grant his that the contends pre-trial publicity.2 Appellant prejudicial widespread, inflammatory, so publicity pervasive, *8 trial, the of the crime until his from date inculpatory presumed. can be prejudicial” pre-trial publicity “inherently disagree. We change of a of venue is a matter grant
The or denial of the trial who is the judge, the sound discretion within atmosphere the and community best to assess position 312(a) provides: 2. Pa.R.Crim.P. (a) change change of venue or for of venire shall be All motions for currently pending. Venue or court in which the case is made to the changed by may that court when it is determined after venire hearing be impartial in the fair trial cannot otherwise be had that a and currently pending. county where the case is
221
necessity
change.
the
for a venue
judge
Commonwealth v.
273,
(1981);
493 Pa.
In Commonwealth v. 470 A.2d (1983), denied, 942, 1922, 501-03 cert. 466 U.S. 104 S.Ct. 80 (1984) L.Ed.2d 469 (quoting Casper, 143, 150-151, (1978), Pa. 392 A.2d we summarized the law this area by reference Commonwealth v. Casper as follows: application for a change venue is addressed
[A]n court, the sound discretion of the trial and its exercise of discretion will not be an appellate disturbed court in discretion, the of an (citations omitted) absence abuse of decision, In the reviewing trial court’s only legitimate is inquiry any juror whether formed a fixed opinion guilt or innocence as a result of the [the defendant’s] pre-trial publicity. have, however,
We recognized that may occasions arise where pre-trial is so in publicity pervasive and flammatory that a defendant’s normal burden demon strating juror actual prejudice is obviated. Pre-trial preju is presumed (1) dice if: publicity sensational, inflam matory, and slanted towards conviction rather than factual (2) objective; and the publicity reveals accused’s prior record, criminal if if any, confessions, it refers to admis sions, or reenactments accused; (3) crime and is derived from publicity police and prosecuting officer reports. Id. extensive, must so publicity be sustained perva-
sive without sufficient publication time between and trial for the prejudice dissipate, community must deemed to have been saturated with it. Id.
Appellant argues before
us
sensational report
ing occurred
a three-day period
(July
[over
*9
of the
1981)
radio and
crime
by
newspapers,
television]
While the
in
he was
to have been involved.
alleged
which
record, Appellant
texts of those articles are not
part
published Appellant’s
one
article
newspaper
that
argues
men-
page;
its front
that another
prior criminal record on
record; and
had a
criminal
Appellant
prior
tioned that
28-30, 1981, men-
during
reports
July
radio and television
criminal record.3 Such
Appellant
prior
had
tioned
un-
prior
reveals
accused’s
pre-trial publicity, which
conduct,
prejudice
establish
may
related criminal
if
Romeri,
time
trial.
continues
to the
id.
publicity
up
us,
if
accept
since even
we
is not the case before
Such
articles,
clearly
the record
analysis of the
shows
Appellant's
or references
to Appellant’s
sensational articles
any
only
published
period
for
in
prior
three-day
record were
Thereafter,
which
sporadic
appeared
of 1981.
articles
July
case
posture
traced the
until
merely
procedural
began.
when
trial
This six-month “cool-
January,
to dissipate
prejudice,
was sufficient
if
ing
period”
off
engendered
July,
publicity.
any,
during
phase
dire
published
Additional articles
the voir
way
in
in no
that prejudicial
were factual
nature and
show
disseminated at
the time of
widely
material was
trial.
have
nine
Finally,
carefully
we
reviewed the
hundred
hun-
extensive
dire examination
one
pages of
voir
wherein
prospective
questioned. Sixty-six
were
jurors
dred and one
if they
were asked
had heard
prospective jurors
of these
what,
if anything,
case and to
detail
explain
about this
nothing
remember
the case.4
knew
Eight
could
about
they
pervasive
pretrial
prejudicial
3. The characterization of continued
appears
publicity expressed in
of Chief
Nix
no-
the Dissent
Justice
only
presented
appears
in the record
to us for review. It
where
Appellant's
pages
allegations,
Such
de
brief at
15 and 16.
factual
hors
record,
by reviewing
prac-
cannot be
court and the
considered
brief,
asserting
appellate
allegations
facts
do
tice of
in an
which
record,
recently again
appear
us
in the
has
been condemned
SEPTA,
(1985).
Reilly,
al.
Pa.
Gerald J.
et
When asked about of specifically Appellant’s conduct, prior criminal one (notes venireman was not sure 42) of Questioning, Voir Vol. and p. was striken for cause. A Appellant second venireman had heard that had offenses, prior (Vol. 191) 1, p. but knew no details and was striken for cause. A had third heard in the courtroom that Appellant (Vol. halls was involved with molesting child IV, 222-223) pp. similarly and was stricken A for cause. venireman, fourth chosen as juror, had heard Appel- that neighborhood Ill, 134) lant (Vol. was troublemaker p. but did not know of any prior criminal conduct had not learned from anything reports media of the newspaper other,, article which any prior mentioned offenses. The (62) veniremen had sixty-two knowledge no of Appellant’s prior criminal conduct nor recollection reports media about that conduct.
Considering knowledge the almost unanimous lack of veniremen, Appellant’s prior criminal conduct we presume cannot few mentioning media accounts prejudicial reporting conduct was at all. The was extensive, sustained, and, pervasive view of the venire- answers, men’s it is community obvious that was not Appellant’s saturated with knowledge prior offenses. Clearly, cooling period the six-month off had had its effect and any possible prejudice dissipated. had been they expressed inability impose
because had death sentence any under circumstance. its discretion in not abuse the trial court did Accordingly, change. for a venue motion denying Appellant’s CLAIMS III. INEFFECTIVENESS inef- his trial counsel argues further Appellant during the trial and that his in four instances fective and a new trial granted. be vacated therefore must sentence in ineffectiveness claims is inquiry The threshold fore which counsel has the issue/argument/tactic whether ineffec the basis for the assertion of forms gone which *11 con tiveness, merit, for counsel cannot be arguable is of for to assert a meritless to ineffective failure sidered be v. Stoyko, 475 A.2d claim. (1984). three made First, points to comments Appellant in the during closing argument his Attorney the District he were so to sentencing hearing argues prejudicial which for that his trial counsel must be found ineffective him to failing object.5 summation, Attorney explained District in his the
Early the jury: to under the that the alleges
The Commonwealth that law it a and killing make torture/murder circumstances doubt, such beyond if so find a reasonable you therefore circumstance, outweighs and it the aggravating as an present- the defense counsel has mitigating circumstances will not be asked make emotional you, you ed to some You will not be asked decide based on decision. under your jurors You will told that as pictures. duty be as representa- laws of this Commonwealth and under the community you you of of this people tives the must — You the death have takén a impose penalty. must — those and them impose sworn oath now to follow laws during sentencing hearing counsel cannot Ineffectiveness trial guilt granting a new trial. The verdict of still stands be a basis for might changed although verdict of sentence of death be to that of imprisonment. life represent you people community and in this 26, 1982, pp. 138-139. community. argues
Appellant
believing
that the
misled into
it
no
had
choice but
death
impose
penalty
as
representative
community,
and that the prosecutor’s
insistence that the
penalty
imposed
improp
death
was an
expression
er
Common
opinion,
of his
us in
forbidden
wealth v.
477 Pa.
(1978).
Pfaff,
There are circumstances sufficient here us for as a under the community require law that we impose must now the death penalty. gentle- Ladies and men, you weigh defense counsel must says aggravat- ing against mitigating, correct, and he is it is not but of number. The question Commonwealth must prove a reasonable doubt that this beyond crime was especially heinous and atrocious and that the defendant’s mind was one manifesting exceptional depravity the de- during fendant the course of this had the intent to killing great pain great suffering. cause It is the Common- wealth’s position that the evidence clearly shows that could be aggravating so circumstance is *12 a a gravity such and such nature that next to it standing the fact this defendant had significant no prior criminal record —he does have two thefts that were en- evidence; tered into that this is a young defendant man— standing those things next to him clearly clearly cannot — outweigh what this has defendant done to thirteen-year- Christopher old Brine. gentlemen, Ladies and under circumstances, these it your duty your duty— sworn — represent to people the this Commonwealth and to impose penalty defendant, the death on the Alan Lee so, Pursell. Were it not had these circumstances not existed, you so, would not required be to do but you now find these circumstances true they and that have been to you shown and this death is qualifies one which as a torture/murder under the law because of the itway
occurred, you against must —return a verdict you must — Christopher of the way of death because the defendant Common- and of the laws of this Brine died because 1982, 26, 144-145. pp. wealth. use the
Here,
argues
prosecutor’s
the
Appellant
death
(“we”
impose
penal-
must now
the
person plural
first
inva-
represents
confused the
unwarranted
ty)
jury
the sentence.
determining
function of
jury’s
sion of the
prosecutor’s
the
addition-
objectionable
also finds
Appellant
representative
as
al
to the
role
jury’s
reference
had no choice
jury
his final insistence that
people, and
are meritless.
arguments
These
impose
but
death.
attorney
a district
is well-settled that comments
It
unless “the unavoidable
do not constitute reversible error
be to
prejudice
jury,
such comments would
effect of
fixed
hostility
in their minds
toward
forming
bias
weigh
objec
could not
the evidence
they
defendant so that
Beas
true verdict.” Commonwealth v.
render
tively and
a
v.
(1984);
Commonwealth
Those comments which remind only served to representative community community, of its sentence of the effect jury irrespective of consider any jury consideration which would of its cause. Tabron. prosecutor’s advocacy context, not mislead or comments, read in did These when it no choice thinking that had but corner the into death, as be sentenced determine the- defendant prefaced comment was Appellant suggests, each because aggravating if found an an accurate caution that *13 outweighed doubt which beyond circumstance a reasonable circumstances, the laws of this then under any mitigating Commonwealth, to determine that obligated was jury the the death be penalty imposed, 9711(c)(l)(iv).6 42 Pa.C.S. § context, In prosecutor the was well within the bounds of reasonableness and in legitimacy arguing jury that the would have to impose a sentence of death.
Furthermore, the District Attorney’s conclusion that the be jury would a required penalty return death in accord sentencing guidelines, with the expression is prosecutor’s personal regarding opinion the defendant’s guilt, credibility, and, therefore, or trial strategy Pfaff inapplicable.
Finally, reading our close of the District Attorney’s clos- he in ing indicates that addressed the jury the first person (we, us) plural on fifteen occasions. This tends support Appellant’s prosecutor contention that the confusing was inferring the he a jury by part was also its deliberative process determining However, a prosecu- sentence. the tor also person addressed jury (you, second your) times, forty-four minimizing effect the first any person usage have may had the jury. whole,
Reading closing as it is clear to us that the jury being as addressed exclusive finder life or death, and prosecutor that the was not to inter- attempting fere with the jury’s function. short,
In we do not find the in- prosecutor’s comments or flammatory prejudicial, bias fixing hostility against Appellant which would prevent jury from objectively weighing the evidence and returning true sentence. There was no ineffectiveness in not objecting to this closing. 9711(c)(l)(iv) 6. 42 provides: § Pa.C.S. jury.— Instructions (1) verdict, jury sentencing Before the retires consider jury
court shall following instruct on the matters: (iv) the verdict must sentence of death if the unani- mously aggravating specified finds at least one circumstance (d) mitigating subsection no circumstances or if the unani- mously aggravating finds one or more circumstances which out- weigh any mitigating circumstances. The verdict must be a sen- imprisonment tence of life in all other cases. *14 of ineffectiveness examples contended Appellant’s Since need consider merit, we not what arguable without are those pursue for failure to been may reasons have counsel’s meritless claims. to his counsel’s fail points trial secondly
Appellant died, and tipstaff the court to for a mistrial when ure move We representation. of ineffective example cites this as disagree. only for is when an request proper a mistrial
The
of
at
Pa.Rule
a defendant occurs
trial.
to
prejudicial
event
1118(b).7
tip-
The death of the court
Procedure
Criminal
way
the
and in no
prevent
occur in
courtroom
staff did not
continuing.8 Accordingly, Appellant’s
ed the trial from
particular
aby
to
completed
have his trial
right
valued
Robson,
jeopardized.
tribunal was
(1975). Additionally, Appellant
Pa.
Next, argues ineffective assistance Appellant adequately to cross-examine his trial counsel failure of criminalist, who established the blood Commonwealth’s with that on shoes was consistent Appellant’s found have counsel should asserts trial Appellant victim. matching victim’s methods witness’s questioned from shoe Appellant’s removed with blood blood matching in the a mistake occurred determine whether meritless. This contention is process. 1118(b) provides: Pa.R. Criminal Procedure
7. during (b) prejudicial occurs to the defendant When an event mistrial; may shall be for a the motion only the move trial defendant Otherwise, may judge trial made when the event disclosed. necessity. only for reasons manifest declare a mistrial presence in the of most of tipstaff died in a local hotel 19, 1982, testimony any had received. before been on The criminalist testified that he conducted two types samples Appellant’s tests on blood and found on blood undershirt, Appellant’s boots, trousers, shoes, belt, as on samples well as of blood found body, near the victim’s the rock used lacerate head, log victim’s and on the used to the victim. asphyxiate All items were tested to type blood and the identify presence of iso-enzymes three *15 EAP).9 (PGM, AK, The results of these tests established samples that the of blood found rock and log, the victim, blood found near the and the blood found on Appel- lant’s shoes matched that of the victim’s.10 Appellant’s blood to was also found be similar to the except victim’s whereas, 2-2, Appellant’s PGM count the victim’s PGM count was 2-1. cross-examination,
On ques counsel extensively process tioned witness about the to used absorb the shoes, samples blood from the about the method in used testing specimens, and the enzyme typing pro about cess. We conclude that trial counsel’s cross-examination circumstances, was adequate under the Appel dismiss arguments lant’s contrary. to the
Finally, Appellant alleges the ineffective assistance of counsel withdrawing for his motion for a mistrial after a prosecution witness testified that had in Appellant jail been before.11 Our review of the record indicates that after Officer out Krake blurted the reference to Appellant’s prior jailing, defense counsel mistrial, immediately requested in-chambers, whereupon on-the-record discussion was agreed conducted. Defense counsel to withdraw his motion iso-enzymes 9. present varying samples These are in amounts in all human blood. Christopher Type 10. Brine’s blood was A with a PGM at 2-1 AKan at 1-1 and an EAP at BA. 1982, N.T., p. 121: only question Officer Krake: Now the was asked of him is the attorney. name his Connelly: right. Mr. All Well, given? Court: itwas Gary Officer Yes. got jail Krake: He said Skiba. "He me out of before.” 230 agreement present exchange prosecution’s for the
in testimony inculpatory. have been whose would witness he that it where indicated Appellant, with colloquy After mistrial, the motion for his decision to withdraw was the motion and cautioned permitted withdrawal Court statement of Officer disregard completely the jury Krake. been the mistrial motion would have pursuing
While circumstances, we no ineffec- merit, under the find arguable had a reason- strategy employed because it tiveness interests. Appellant’s to effectuate designed basis able Dunbar, (1983); v. 503 Pa. A.2d Commonwealth Hill, (1973). A.2d 587 inculpa- not to introduce agreement The Commonwealth’s exchange continuing Appellant for against evidence tory can be considered have advanced certainly the trial with interest because this evidence promoted Appellant’s anyone had admission defendant made only death, Christopher Brine’s concerning his involvement *16 he would testimony contradiction to the and was direct given police. he had to the at trial and to statements give chosen a reason- can that the course had Since we conclude interests, Appellant’s designed basis to effectuate able effective. constitutionally is deemed counsel’s assistance Dunbar.
Moreover,
have
indicated that in criminal
we
often
cases,
of a
reference
prejudicial
effect
witness’s
possible
under
may,
conduct of a defendant
prior
to the
criminal
circumstances,
caution
be removed
immediate
certain
Richardson,
Commonwealth v.
jury.
instruction to the
ary
v.
(1981);
521,
Accordingly, any that resulted from the remark and, require insufficient mistrial under the circum- stances, counsel’s decision to the motion withdraw was not ineffectiveness.
IV. TRIAL COURT ERRORS We now turn to Appellant’s arguments the trial court erred in not granting mistrial when Common- witness, Krake, wealth Officer volunteered irrelevant and prejudicial testimony. examination,
On direct Officer Krake testified he interro- gated Appellant after his arrest. During that interroga- tion, glasses found near the victim’s body were placed front of Appellant and Officer Krake testified to what occurred as follows:
Well, if I recall right, he was sitting with his hands crossed I watching because was for physical reactions at point. fashion, His hands were crossed more stomach, toward across the area his and I at noted increased, time that breathing his that his hands were moving at a faster rate prior, than had been they after him, Trooper which “I Conley said see how can it happened. good That boy you. looked You took that You boy. raped 21, 1982, that boy.” January p. Trial counsel objected to this but testimony, the trial judge objection overruled the and instructed the as follows:
At this I point stop will now and I will now tell the jury and caution them that like any by Trooper remarks this Erby Conley must considered in light the the circumstances which were made it they because was questioning you and that must understand that this at time there no evidence whatsoever of sexual molesta- 232 out, molesting has brought sexual that
tion that has been sort, brought that and brought anything out or been Commonwealth, therefore, forth the put by out and it particular may give that inference disregard to you are 1982, 21, p. 120. you. that sometimes inadmissible testi is no doubt
There dramatic, emotionally inflammatory, so that mony sois it, forget spends lengthy even if the Court cannot jury so, instructing do we do not that this it to but believe period that statement was It does not appear is such a case. and once the the Commonwealth intentionally by elicited made, gave a prompt the trial court statement was disregard any inference to the to jury decisive instruction to molestation and guilty was sexual Appellant light police in the of the interro only consider the statement exploit not the reference The Commonwealth did gation. all light again. to Under brought and the matter was the circumstances, trial instruction to court’s prejudice was and the disregard proper, the remark See, require a mistrial. resulted, any, if was insufficient to Richardson, 521, Pa. 1162 496 437 A.2d v. Commonwealth A.2d (1981); v. 474 Pa. 376 Whitfield, Commonwealth Williams, 368 (1977); v. 617 Commonwealth Brown, (1977); Pa. A.2d 249 (1971). A.2d trial court erred next contends that the Appellant testify Dr. wheth when it refused to allow Rozwadowski er, Christopher by Brine’s death occurred opinion, his The called defense disagree. expert torture. We prosecution for the He had testified was the coroner. The sought defense guilt phase trial. during of death in order to rebut to the manner testify have him as torture occurred. prosecution’s arguments question to allow a defense trial court refused death committed issue of whether ultimate However, testify allowed to as torture. the witness was his that the could expertise matters within other properly consider: *18 (District
MR. CONNELLY Attorney): Okay, what are to ask him you going specifically?
THE That’s I exactly COURT: what wanted to know next. (Defense Counsel): first,
MR. SKIBA Okay, I am going to go into the of whether or he aspects say can he at the conscious time—at time. I him any expect state that he ormay may not have ormay may not been— have been conscious. may He have been unconscious with first blow.
MR. CONNELLY: That’s what he testified during the trial. second,
MR. SKIBA: theOr That indicates—if he was unconscious—that he would not have suffered any pain. I think the crucial nature of that is evidence obvious. I will state that there was no systematic what he —from could see—no systematic pain pain intent cause and—
MR. CONNELLY: He testify can’t about intent of the defendant. see,
MR. SKIBA: From what he can type ran- dom actions that were used inflict the injuries here he would be able to state that those did not indicate himto systematic pain. Now, intent to cause Judge, the—
THE a right COURT: You have to cross examine him this, on I too. am going to allow it in.
MR. SKIBA: Thank you, your Honor.
MR. No opinion torture, CONNELLY: I as it? take THE COURT: Pardon me?
MR. opinion CONNELLY: No toas whether or not the victim was tortured.
THE COURT: That’s correct. opinion No as to wheth- er or not he was tortured. You cannot.
N.T. at 118-119 (January 1982). The trial judge here testimony allowed about the mechanism of death of pain amount respect, victim felt. In this he was plainly correct. expert Such testimony on the issue of and material without in- appropriate will torture often as final arbiter of whether role fringing jury’s place. torture took judge the trial erred argues
Finally, Appellant
*19
to
jury concerning
for instructions
the
requests
his
denying
doubt,
evidence,
and the defend
reasonable
circumstantial
v.
scene,
Commonwealth
Libo
the
citing
on
presence
ant’s
Commonwealth v.
504,
(1943);
nati, 346 Pa.
A doubt reasonable before person to hesitate reasonably careful and sensible A his own affairs. importance of acting upon a matter of the evidence must arise out fairly reasonable doubt present- out of the lack of evidence presented that was A reason- of the crime. to some element respect ed with a real It may able doubt must be doubt. not be an one nor it imagined may be a doubt manufactured to So, carrying unpleasant duty. avoid out to summa- rize, find you may the defendant on guilty based suspicion guilt. has mere proving burden defendant reason- guilty beyond a 26, 1982, doubt. p. able Now, I would like cover times People many alibi. the term In use “alibi” the sense. sparsity case, the defense alibi was used the defendant. Obviously the defendant cannot he guilty unless alleged at the scene of the crime. The defendant has show present offered evidence to that he was not at the crime but rather it evening that was supposed occur that he was park, around trailer and his mother him on up backed this. You should consider this evidence *20 with all along the other evidence in the case in determin- ing whether Commonwealth has met its burden proving beyond a reasonable doubt that a crime was committed and that defendant himself committed or part committing took in the crime. The evi- defendant’s present dence that he was not together either itself or with other may evidence to sufficient raise a reason- able doubt of his in guilt your minds. If have a you guilt, reasonable doubt of you defendant’s must find him not guilty.
Now, with to respect direct and circumstantial evi- dence, the evidence in this case is circumstantial primarily is but it also of different types. two On the one hand evidence; is, is there direct that is evidence which testi- by a from mony knowledge witness his own such personal something as he saw or heard himself The other ... is type circumstantial evidence which is about testimony point facts which existence of other facts are which in An question. example glasses, of this: The the blood shoe, on the other blood. or any Whether not circumstan- tial evidence is proof the other facts in question in depends part application of common sense and is recognize You should it some- experience. human in circumstantial evidence necessary rely upon times cases; in as this case where particularly criminal In deciding committed in secret. whether crime was of the facts proof circumstantial evidence as accept not to first that the testimony must be satisfied question, you accurate; and and the witness involved is truthful second, of the facts that the witness that the existence the facts to leads to the conclusion testified alone evidence happened. also Circumstantial question If guilt. there prove sufficient to the defendant’s may be evidence, it is not of circumstantial pieces are several convince standing separately that each necessary piece a reasonable doubt. guilt beyond of the defendant’s you Instead, find—the defendant you you may before find— of circumstantial evidence when pieces all the guilty, and lead together reasonably naturally must considered must guilty the defendant the conclusion that guilt beyond reasonable of the defendant’s you convince words, find the defendant you may In other doubt. if only evidence alone but on circumstantial guilty based of that evidence convinces quality total amount a reasonable doubt. guilt beyond of the defendant’s you that, one of the elements you, as I have told Along with intended to kill Christo- is that the defendant of this crime intent possible prove it is not Ordinarily Brine. pher unless, example, for there is evidence direct evidence concerning his state defendant made a statement that the However, case. mind, do not have which we *21 circum- may proved by like other matter be any intent evidence; is, reasonably in inferences that stantial facts and circumstances drawn from all the may be and conduct which have the defendant’s acts including Thus, you in the this case. by may been shown evidence Pursell, to kill defendant, intended that the Alan conclude he intended (sic) evidence on circumstantial or new based circumstantial if the only kill Brine but Christopher to you that the Com- strong enough is to convince evidence
237 has its reasonable beyond monwealth established intent 26, 1982, doubt. 88-91. pp. in
When read its instructions entirety, court’s it were correct and was not error the court refuse to for charge the jury requested with the language exact Lesher, 141, Commonwealth v. counsel. Pa. 473 373 A.2d (1977). 1088
We have read cases cited by Appellant and find that charge fully the court’s and adequately explained reason- doubt, evidence, circumstantial able and the defendant’s in presence, albeit different language than but requested, language with conveying substantially meaning, the same enabling jury to understand the on law those issues. 9711(d)(8)
V. 42 CHALLENGES TO PA.C.S. § also raises Appellant challenges concerning certain sufficiency charge given the “torture” before sentencing. Specifically, Appellant argues that Sec 9711(d)(8) Code, tion the Sentencing 42 Pa.C.S. 9711(d)(8)12 unconstitutionally vague, the trial § charge given insufficient, court’s on torture and that insufficient evidence of torture existed record for the matter to be submitted to the jury. Before our beginning analysis Appellant’s vagueness challenge, we bear mind the presumption Legislature that our acts v. Thornburgh, Snider constitutionally, 159, 496 Pa. 436 (1981), A.2d 593 a heavy and that burden rests on those who would attack judgment representatives of the of the people. 16, Zettlemoyer, 454 denied, (1982), cert. 2444, A.2d 937 461 U.S. 103 S.Ct. (1983). 77 L.Ed.2d challenge our Any sentencing code light must be requirements evaluated Furman v. 408 U.S. Georgia, 92 S.Ct. 33 L.Ed.2d (1972). Furman imposed responsibili the States the ty of drafting sentencing guide codes which would 9711(d)(8) provides: § Pa.C.S. (d) Aggravating Aggravating circumstances shall circumstances. — following: limited (8) The offense was committed means of torture. *22 238 discretion to sentencing authority’s by resorting the
channel specific argue of factors favor the examination of the death Total arbitrari- imposition penalty. the against in the capriciousness imposition is thus eliminated ness of a sentence of death. crime of murder of have determined that the already
We
circum
degree,
specific aggravating
the first
with
coupled
stances,
of
enough
imposition
is a heinous
act to warrant
sentencing proce
death
under
drafted
penalty
carefully
Zettlemoyer.
upheld
phrases
We have also
various
dures.
and miti
aggravating
in our statute’s enumeration
used
challenge
vagueness,
against
circumstances
gating
enough
satisfy
finding
phrases
specific
those
Beasley,
of Furman.
Commonwealth v.
In
requirements
(1984),
vagueness
Similarly,
(42
means of torture”
“the offense was committed
inclu
9711(d)(8))
vague.
legislature’s
is not
Pa.C.S.A. §
aggravating
circum
of the means of torture as
sion
considering
whether
weighed by
stance to be
specific
is a
imposed
sufficiently
death
should be
penalty
of such a term is a
meaning
factor
we feel that the
because
ordinary
so that an
man
knowledge,
matter of common
(See,
State
intended.
at what was
guess
would
have
Dixon,
Fla.,
(1973)).
Accordingly,
When the means of torture employed, are we can believe, doubt, without a reasonable that user of such means intended to torture his or her to victim death. What is intended to be included are those murders of the first degree where the actual commission of offense included such concurrent as to set apart acts the crime from the of capital norm felonies—the pitiless conscienceless or crime which is unnecessarily painful (See to the victim. Dixon, Supreme where the Court of Florida construed its death penalty statute’s aggravating circumstance on “espe atrocious, heinous, cially or cruel” as “the or conscienceless pitiless crime is which torturous to the unnecessarily vic tim.”)
In comparing interpretation our of “torture” with that given court, to the jury the trial hold by we that it was correct and to jury enabled the the law understand on this issue.13
Therefore, we meritless Appellant’s hold contention that charge was insufficient. jury 13. The Court defined torture as follows: “One of them is they say the model Penal in which Code that offense or murder by designed committed means of torture is causes considerable for defendant who pain language amount and that used for particularly aggravating this espe- circumstance the murder heinous, atrocious, cially exceptional manifesting depravity. or cruel Also, place may appropriate trying another I felt that to define you Reports. for reports torture was in American Law These act, many that stated since murder is an intentional courts have determined, torture, regarding specific murder intention that the committing torture murderer has in the homicide. It has been held pain, suffering pain is an to inflict intention both suffering.” pp. 145-149. also that the evidence Appellant argues submitted to the insufficient a matter of on “torture” was as law and jury question that the of torture should not have been submitted jury. Appellant’s argument to the crux of is that presented insufficient evidence was to the on intent to cause and that no from pain this record could conclude Appellant intended to his in such a as injure way victim this offense one qualify as committed means of torture. record,
Our review of this all giving reasonable Commonwealth, inferences to the discloses sufficient evi torture, dence support finding and the intent heinous, atrocious, Christopher Brine to or cruel subject *24 suffering reasonably can be inferred from the circumstanc blows, strangu es of this case. The number of the manual lation, (25) asphyxiation twenty-five with a foot tree branch, witness, by screams heard a and the continued body traumatization of the after death more blows and by burning are acts sufficient for a jury weigh require line drawing required no more than is of a commonly factfinder in other lawsuits. Accordingly, we conclude that sufficient evidence exists in this record to support finding Brine met Christopher by his death means of torture. Florida, 242, 2960, See v. 428 96 U.S. S.Ct. 49 Proffitt (1976). L.Ed.2d 913
Finally, pursuant
to our statutory obligation to review
death cases to determine whether the
sentence of
imposed
death
im-
disproportionate
penalty
is “excessive
to the
cases,” (42
9711(h)(3)(iii)),14
in similar
posed
Pa.C.S.
we
§
have conducted
evaluation of all convictions of murder of
degree
13,
the first
under
of
prosecuted
September
the Act
1978,
756,
141,
P.L.
No.
by
Pa.C.S.
aided
§
comprehensive
at our
study prepared
Order
the Adminis-
9711(h)(3)(iii) provides:
14. Section
(3)
Supreme
Court shall affirm the sentence of death unless it
determines that:
(iii)
disproportionate
sentence
of death is excessive or
to the
cases,
penalty imposed
considering
in similar
both the circumstanc-
es of the crime and the character and record of the defendant.
Pennsylvania
(AOPC). (See,
trative Office of
Com-
Courts
(1984)).
v.
504 Pa.
Frey,
monwealth
For we sustain the conviction of degree murder the first and affirm the sentence of death.15
NIX, C.J., ZAPPALA, J., file dissenting opinions. NIX, Justice, Chief dissenting.
I dissent. While
nature
of force used
the instant
supports
case
finding
specific
kill,
intent to
Common-
Meredith,
303, 311,
(1980),
wealth
490 Pa.
I.
First, appellant
granted
change
should have been
venue under the
standards enunciated Commonwealth v.
Pierce,
(1973).
1981 were presumption that a selected from that locale would be glaring example the defendant. One prejudiced against 28, July front-page newspaper publication was outdone, prior criminal record. Not to be local appellant’s gave reports radio and television stations also detailed offenses. One television appellant’s past por- broadcast “weird,” trayed appellant as a “wild” man who had brand- in the gun neighborhood ished a and who had served one a half for a years prison stabbing. and inflammatory publicity The sensational and nature of the was manifested headlines such as “How Does It Feel To A Be The Mother Of Murderer?” and “Fear Stalks Law- Park Area.” The was appellant frequently targeted
rence
coverage
during
to receive
news
than other inmates
greater
pre-trial
appellant
his
confinement. On several occasions
in the
handcuffs.
displayed
newspaper wearing
blatant, however, was the direct involvement
Most
28,
prosecutor
pre-trial
in the
police
publicity.
July
On
1981,
press
one Officer Krahe called a
conference to an-
appellant
charged
nounce that
had been arrested and
with
murder. At that conference the officer
public
made
found at
scene of the crime had been identified
glasses
appellant’s
as
and that blood was seen on
shirt
appellant’s
night
broadcasting
on the
of the murder.
critical evi-
By
against appellant prior
dence
to the courtroom trial
effect,
police,
appellant
through
tried
the media to induce
See
a climate
establishing
finding
guilt.
conducive to
Louisiana, 723, 726-27,
Rideau v.
U.S.
S.Ct.
(1963). Similarly,
As we stated in
(1980),
elections,
“Legal
... this Commonwealth policemen and members of [I]n the staffs of the office of District Attorneys shall not (a) release to the news media: the existence or contents of any statement or confession given by accused, or his give refusal to tests; (b) statement or to take prior criminal accused, records of the including arrests and convictions; (c) any inflammatory statements as to the case, merits of the or the accused; (d) character of the of a possibility plea (e) of guilty; nor shall the authorities deliberately pose the accused for photographs at or near crime, the scene of the or in photographs which connect him with the scene of the crime. See generally ABA Project Minimum Justice, Standards for Criminal Standards Relating to Fair Trial and Free Press. 1.1 §§ and 2.1 (Approved 1968). Draft We hold that anything short of compliance with these standards can operate to deprive an accused of due pro- law, cess of as this type of material did the instant case____
Id.
All the information released the authorities clearly pointed to Pierce’s guilt, and any prospective juror ex- posed to this publicity must surely have formed opinion as to Pierce’s guilt innocence. definite Moreover, information, some of the such as the accused’s *27 244 record, trial, criminal was not at
past admissible but it prospective through was available to the the news jurors account.
Id.,
196,
added).
Moreover, in we especially type Pierce chastised the police prosecutorial and involvement exhibited in the case at bar:
Statements such as those of the police prosecutor and the in this case create an even more substantial risk of a trial, denial of a fair position because of the hold, community suggest these and also an individuals official disregard safeguards inherent in a fair trial. Officers of the Commonwealth and the have a police special and duty responsibility all of the citizens of the They sight Commonwealth. must never lose of the fact right impartial that an accused has a to a fair trial by jury, “strip can a man of his and only jury liberty,” a man is innocent until presumed proven in a guilty law, and that all men guaranteed court are basic rights under the Constitution.
Id.,
198,
245
guilt through the media in a blatant and deliber-
appellant’s
fair
attempt to render a
trial impossible.
ate
concedes that
majority
report
there was sensational
1981),
28,
30,
29 and
ing
three-day period (July
over
but
concludes that a six-month
off
suffi
“cooling
period” was
dissipate
prejudice.
agree
cient to
I cannot
with
conclusion. That
elapsed
controlling.
six months
original publicity
“inherently
Here the
prejudicial”
the community.
Romeri,
had saturated
124,
1,
(1983),
130 n.
470
501 n. 1
A.2d
cert.
denied,
U.S.
S.Ct.
(1984);
L.Ed.2d 469
*28
143, 154,
287,
481
Casper,
Commonwealth v.
Pa.
392 A.2d
(1978).
the
Although
dissipated
293
somewhat
publicity
following
three-day period
the
in
it
July,
up
continued
the
began.
and intensified when
trial
As stated in
Casper,
v.
“The
in
supra,
Commonwealth
critical factor
finding
the
of presumptive prejudice ...
is the recent and
pervasive presence of ‘inherently prejudicial’ publicity, the
of
is to
fair
likely effect which
render a
trial impossible”.2
Id.,
(citations omitted).
Pa. at
481
However, in this we case do not have to the rely upon presumption of pervasiveness inflammatory the of the cov- erage. That fact is clearly demonstrated the record of the eight (12%) voir dire. Only sixty-six prospective of they stated jurors nothing that knew about the case. Of majority opinion Casper pre-trial publicity concluded the inherently prejudicial was not because the news accounts were factual objective inflammatory, inculpatory. rather than sensational and Additionally, prior convictions and statements or confessions the reported were Casper accused in these accounts. I dissented in proper application because of law to facts of that case demand- Likewise, contrary ed a result. in the instant case where there were reports prior clearly inflammatory convictions as well as informa- supplied reporters by prosecution, proper application tion requires inherently fact preju- law to a determination that there was pre-trial publicity. dicial chosen, (87%) fourteen had seen jurors actually sixteen during reporting July, or heard the sensational 1981.3 Thus error justified on the assignment relief under this pretrial of the prejudice of the inherent theory publicity prejudice. of actual predicated upon finding II.
Second, misconduct prosecutorial evidenced display summation necessitates attorney’s the district Similar to the situation in death sentence be vacated. 461, 171, 384 A.2d Pfaff, (1978), prosecutor impermissibly expressed here the his that the must return a verdict of death: belief circumstances, gentlemen, Ladies and under these ... duty it is sworn your duty your represent people —to — and to impose of this Commonwealth the death penalty defendant, so, Alan Lee Pursell. Were it not had existed, these circumstances not would not re- you so, quired you to do but now find these circumstances to they you be true have been shown to and this qualifies death is one which as a torture/murder under occurred, the law it way you you because must — against must —return a verdict the defendant of death *29 Christopher because of the Brine died and way because 26, 1982, the laws of this Commonwealth. pp. 144-145.
The
language
above
constitutes reversible error because
“the
effect of such
unavoidable
comments would be to
prejudice
forming
on their minds fixed bias and
jury,
hostility
they
weigh
toward the defendant so that
could not
true verdict.” Com-
the evidence
a
objectively
render
monwealth v.
576, 582,
Cliff,
Van
483 Pa.
397 A.2d
Commonwealth v.
(1979) (citations omitted).
1176
Cf.
(1984)
Beasley,
504 Pa.
247 to a response upon direct attack remarks were his Tabron, integrity); Commonwealth 465 (1983) (prosecutor’s 637 remarks made merely A.2d the effect of aware of its verdict on the community). majority maintains that these statements must be in context with an viewed earlier statement during the prosecutor summation which set forth the jury’s obligation to determine and the existence weigh aggra vating and I mitigating circumstances. As read the record closing argument of this the prosecutor, point at the com of, plained argues such a manner that strongly implies the existence of the aggravating circumstance is no longer open Instead, to question. the clear implication of argument amounted to a direction to the their function was limited to the consequence finding aggravating outweighed circumstance any mitigating argument circumstance. This obscured the jury’s critical function of determining whether an aggravating circum stance had fact been established beyond reasonable doubt. 1(c)(1)(iii). Pa.C.S. § And, in the event the burden, Commonwealth met this first the jury’s obligation was at that point weigh that aggra vating against circumstance possible any mitigating circum stances. 9711(c)(1)(iv). Pa.C.S. This vital portion of § the jury’s sentencing responsibility was obfuscated by the argument employed by counsel for the Commonwealth which focused upon the only jury’s obligation to return a death sentence. In my judgment, such a distortion of the jury’s responsibility grievous was a error which clearly tainted the sentencing stage. for the
Accordingly, first assignment of error set forth above, a event, new trial should In be awarded. any second assignment of error require would vacating sentence of death.
ZAPPALA, Justice, dissenting.
The majority concludes that the trial court’s charge to the *30 jury during the sentencing phase on the issue of whether the offense was committed of by proper. means torture was “the of “torture” as inflic- definition majority’s Because the suffering of on a pain amount tion of a considerable atrocious, heinous, or cruel unnecessarily is victim which the narrow goes beyond manifesting exceptional depravity” Legislature, I by intended circumstances aggravating at [Majority must dissent. 196] as follows: charged The trial judge Now, may like to define certain terms that usually ... we meaning. Unfortunately under not have common we Pennsylvania, of cases of laws is no legal the definition of torture. There do have state, our for me to follow and “This is what precedent So, say is what our laws torture is.” Courts”—or—“this in a case like this is that we must look happens what some sort of a definition of the word elsewhere for So, several, I’ve looked at and these are “torture.” of them is the up definitions I’ve come with. One two that the offense or they say Penal which Model Code is for designed murder committed means torture pain causes a considerable amount of the defendant who for language particularly aggravat- and that the used this “heinous, especially circumstance is the murder was ing atrocious, manifesting exceptional depravity.” or cruel Also, I place may appropriate another felt be in the you to define for “torture” was American trying stated that They reports stated —these Reports. Law act, an Courts have many since murder is intentional torture, determined, specific murder inten- regarding committing torture/murder has in the homi- tion that the held that intention to inflict cide. It has been suffering, pain suffering. or both pain, 26, 1982, Defense counsel had p. January 146]. [N.T. charge. of torture to the prior to the definitions objected p. 128]. [N.T. difficulty charging resolution of the judge’s trial definition of torture without the assistance on the decisions was admirable. It is guidance appellate however, of torture cir- the definition
imperative, more than that of the trial court’s and that cumscribed *31 majority pain The infliction of adopted by today. which heinous, atrocious, or cruel unnecessarily manifesting is be to include exceptional depravity may interpreted acts in not resulting the death of a victim which are committed category means of torture. The former is more inclusive by pain the latter. For on an example, than infliction defenseless child in death resulting may innocent and well author, by understood and this jury, satisfy be definition of torture. It sufficient majority’s would be itself, however, an by establish act committed torture. I perceive The with the definition is problem majority’s to a it impermissibly suggest jury may it would defendant, focus on the character of the rather than on the means which the murder was committed. While it by may result, is unintended it an inevitable one. Legislature clearly intended to differentiate between heinous, atrocious, are especially murders which or cruel and murders means of Proposed torture. amendments suggested language were which would delete the which is 9711(d)(8) codified at Pa.C.S. and substitute as an § aggravating circumstance that murder was especially Legislature heinous. The rejected considered and the pro- posed amendments. 1978 Legislative Journal —Senate at
While the trial court offered two definitions of torture to jury, impact on the of the definition discussed herein is demonstrated in the record itself. Prior to the deliberation, a juror requested exception- the court to define 26, 1982, depravity. al p. The trial [N.T. 149]. refused, judge correctly directing to use its com- mon understanding of the term. After two hours of delib- erating, jury requested the court to redefine torture. stated, The trial judge before,
As I stated to you precedent we have no to follow so I less two Pennsylvania, have used more or terms or Law Reports definitions; American two one from the Model Penal Code. Now, and the other from the as far as the American concerned, Reports Law is since murder Courts, in many an intentional act other Courts outside determined, murder Pennsylvania regarding have torture, the intention that the torture/murder has specific the homicide. It has been held that this is committing suffering, pain an intention to both pain, inflict Code, to the Model Penal suffering. respect they With used for this language particularly aggra- state that the is the murder was hei- vating “especially circumstance atrocious, nous, manifesting or cruel exceptional” you— “exceptional” the word “depravity.” know what means — *32 Well, often heard the words “a mind.” depraved You’ve means, “depravity” that’s what type mind that’s hope I I depraved. your question. answers will out and you again, you send can still continue your deliberations. 26, 1982, pp. exchanges be-
[N.T. 150-151]. emphasize tween the court and the the difficulties I in defining which have outlined torture to include heinous depraved act. For purpose charging aggravating on the torture, I circumstance of would define “torture” as the continued or prolonged physical infliction of or mental with the intent to cause pain suffering. abuse Because definition majority’s encompasses concept of hei- nous, atrocious, manifesting or cruel exceptional depravity, I dissent.
Argued Dec. 1984. July Decided