*1 ORDER PER CURIAM. NOW, December, 2004, the Petition day
AND
this 29th
GRANTED, and the order of the
Appeal
for Allowance of
is
to Eidem v.
REVERSED,
pursuant
Commonwealth Court
WCAB,
(2000).
relin-
864A.2d 460 Pennsylvania, Appellee COMMONWEALTH of v.
Harvey ROBINSON, Appellant. Miguel Pennsylvania, Appellee
v. Robinson, Appellant. Harvey Miguel Supreme Pennsylvania. Court of Argued April 2003.
Decided Dec. *16 Ennis, Broomall, Lauer, Easton, D. Mary Philip Rebecca Robinson, Harvey Miguel appellant. Paradis, Allentown, LeVan, Lynne C. Jennifer
Jacquelyn Dantos, Allentown, Maria L. for the Amy Zapp, Harrisburg, PA, appellee. Com. CAPPY, C.J., CASTILLE, NIGRO, NEWMAN,
Before: LAMB, SAYLOR, EAKIN and JJ.
OPINION Justice NEWMAN. this
Harvey Miguel (Appellant) brings ap- Robinson direct *17 of the of Common Judgment from the of Sentence Court peal1 (trial court) him to that sentenced Lehigh County Pleas of murder. After first-degree conviction for following death his we by Appellant, the record and the claims raised reviewing affirm. History and Procedural
I. Facts 5, 1992, Allen- Wednesday, August At 12:35 a.m. on about at the reported burglary to a police dispatched town were at 1430 East Gordon Burghardt (Burghardt) residence of Joan Street, Burghardt, City on the East Side Allentown. female, 225 to weighing a white twenty-nine-year-old address, one-bedroom, at that a first- resided alone pounds, told the neighborhood. floor in a residential She apartment 11:00 had entered her between police apartment that someone she returned Tuesday Wednesday, and 12:30 a.m. when p.m. fan, that a from a friend home. noticed taking Burghardt been on before had leaving apartment, which she left closed, off, and the open turned door she had left was patio door, locked, about ripped screen on the was had been which inches, near just enough through, six to a hand eight get Burghardt reported mechanism. also locking $40 In from a bank in her dresser drawer. missing bag was $50 apartment ap- her respects, Burghardt reported all other undisturbed. peared to have been 9, 1992, Sunday, August At 11:30 a.m. on approximately that: complain Burghardt’s neighbor telephoned police (1) days nights; had been on for three Burghardt’s stereo (3) (2) doorbell; the screen had been out no one answered one of those nights; during of the for three window beating Burghardt it like nights somebody had sounded walls, arrived screaming. police When up, hitting front at noticed the screen for the Burghardt’s apartment they next to leaning upright on the apartment ground window, and the screen for the open, the front the window was beneath ground rear out and on the pushed lying window was judgment jurisdiction appeal a 1. This Court has of a direct from imposed. 42 penalty in which the death has been sentence in case 9711(h). § Pa.C.S. *18 window, The the open. patio that was also screen on which cut about six inches next to the door handle. long door was blaring loudly The television was and the front door and the The patio door locked. screen door was closed but patio were not locked. the the found
Upon entering apartment, police Burghardt dead, on her stomach on the room floor in front of lying living couch, large her couch. There a amount of blood on the was walls, severely and floor. She was beaten about the head. found, from the the body apartment ap- Aside where was orderly. to be neat and With the of the peared exception screens, or pry there were no marks on doors windows or entry. other of forced The that the police evidence concluded perpetrator through entered residence the front window and exited the rear through window. death,
At the time of her a Burghardt wearing sleep was pair jockey ripped shirt and shorts that were at the crotch her A pulled up. hips She was unclothed from down. dresser in the and a open pair drawer bedroom was of black shorts on the floor. There blood spots was were white stains on the back of the shorts. A shirt peach-colored located on the closet door. It contained a lot of blood in patterns appeared distinctive that been made by swipe have marks from weapon. whatever was used as the murder
The subsequent autopsy Burghardt revealed had been sexually bludgeoned assaulted and to death by thirty-seven injuries individual blunt force to her scalp, causing extensive skull fractures and to the brain. damage weapon The was a circular, cylindrical three-quarter instrument about one-half to inches in diameter a smooth surface and about ten to twenty long. inches The force of the blows was so deliberate that, down, and tremendous as instrument came it embed- ded hair the fracture and between skull. hands, injuries also had on
Burghardt defensive both evi- dencing attempting she was alive and herself protect from her Serology assailant. tests established that all of the scene, blood and hair found at the those including samples shirt, colored peach on the black shorts and were found However, the shorts had those victim. consistent with outside, ejaculat as someone had though stains on the seminal on the shorts onto them. Tests of the semen stains showed ed (DNA) later profiles that were matched deoxyribonucleic from blood.2 An Appellant’s the DNA obtained profiles at crime scene indicated spattering of the blood analysis 5'10" tall and stood over perpetrator approximately attack.3 during victim later, at about 6:45 a.m. on ten months Approximately 9, 1993, to a call police responded June Allentown Wednesday, Street, a at 1058 East Gordon reported missing person of a also on the East Side of Allentown. neighborhood, residential *19 normally punctual A became when the suspicious resident delivery girl, Schmoyer (Schmoyer), Charlotte newspaper. cart left newspaper Her was newspaper. failed to deliver in front of a thirty minutes approximately unattended newspaper house and the had been delivered neighbor’s arrival, police their found the neighbor. Upon another day’s newspa- cart half-filled newspaper unattended with house; separate copy newspaper; of the a of the pers front and its headset from each other separated a Walkman radio houses; streaks on the finger on the between two and ground of one of the nearby garage of the door windowpane concluded that a had ensued and struggle houses. Police female, weighing a Í80 Schmoyer, fifteen-year-old white pounds, had been abducted. heavily a wooded area at day, searching
Later that while (Reservoir), East nearby police Allentown’s Side Reservoir that led them to the bloody body Schmoyer, found a trail beneath some Her sweatshirt was logs. which was buried had been sweatpants underpants her and slightly pulled up; a large, gaping her knees. She had pulled down toward throat, separate gash, in her stab wounds below wound back, on her a on patterned stab wounds and bruise multiple An autopsy twenty-two side of her cheek. revealed right N.T., 10/31/94, pp. 1258-61. out, Appellant 3. As it turned is 5'9" tall. wounds, (including sixteen in the back seven that were
stab (of fatal), in the front area of the neck any and six which fatal). one or three have been In combination of would addition, cutting scraping there and wounds in the neck were area, indicating they inflicted while the victim was con- were measure, protective scious and her neck bent down as a sweatshirt, indicating more cuts to the back of the seven occurred in that the cut but the struggle some sweatshirt was The a body penetrated. weapon single-edged was not was At long. knife about four inches least two wounds were to the hilt of the blade. up Schmoy and DNA tests indicated that
Subsequent serology er had intercourse before death. DNA shortly Appellant’s vaginal was found on her swab and blood consistent with that blood, Schmoyer’s and inconsistent with that of found on her the trail sweatpants, along was sweatshirt leading body, to her and on leaves at the crime scene near her Schmoyer head.4 All of the blood found on or about was that of Schmoyer Appellant; consistent with either or none the blood inconsistent one of their A profiles. was with of a hair on the knee of comparison right Schmoyer found consistent hair from head and inconsistent Appellant’s with hair; Schmoyer’s comparison with own of a hair found Schmoyer on the sweatshirt of consistent Appellant’s with and, hair pubic again, Schmoyer’s inconsistent own hair. *20 28, 1993, (Sam-Cali), On June Denise a thirty- Sam-Cali eight-year-old weighing pounds, white female 160 to 165 and n Street, her husband resided at 1141 East Highland on Allen- alone; evening town’s East Side. That she home her was husband out of during night was town. She awoke to noises from a near her within walk-in closet bedroom door. house, attempted As Sam-Cali to flee the an assailant grabbed house, her. exited the but grabbed She the assailant her walk, back, on the front her again flipped got her on and on top using of her his knees to hold her down. N.T., 10/31/94, pp. 1261-64. he began fight, pushed
As and assailant Sam-Cali her, face at least mouth, her punched on her choked down him the inside him and bit on punch four times. She tried ran through He her and then right raped of his arm. upper the back After- by way patio-door. escape the house wards, had been beaten police. called the She Sam-Cali marks, head, strangulation her neck had severely about the in a wrapped A butcher knife lip large and her was slashed. floor found on the napkin lying from her kitchen was paper incident, Following her door. this Sam- outside of bathroom for a their East Allentown residence and her husband left Cali days. few later, after a.m. on shortly weeks
Approximately two 7:00 Fortney (Fortney), forty-seven- July Jessica Jean 14, 1993, female, resided with weighing pounds, who year-old white Street, at North on family Bryan members of her other Side, Fortney found dead her bed. East was Allentown’s half-naked; pulled down underpants her shorts were was only area and around groin her knee and mid-way between and black. She had dried one Her face was swollen thigh. nostrils, nose, There her and neck. was lips, eye, blood about and on the behind the sofa spatter directly blood on the wall floor to the sofa. The on the first was lampshade next window there no screen in it. open; morn- early died in the Fortney The revealed autopsy (probably ing by strangulation hours as a result of suffocation manual) fifty There in excess of and blunt trauma. were many compatible being of them with injury patterns, different of them indicated by a closed fist about the face. Some beaten hands. object, an such as a on her assailant’s Other ring, attacker his Fortney’s placed revealed that injury patterns causing spatter her blood to during beating, knees on her wall, established Serology and him. tests lampshade, on hours of her intercourse within a few Fortney had sexual Fortney It later determined that death. fluids from body
had different blood Blood and profiles. Appellant’s pro- consistent Fortney’s vaginal swabs were *21 matched Fortney’s vaginal fluid from swabs file and seminal DNA.5 Appellant’s homicide, of days Fortney evening
Four after the on and her husband returned home. At July Sam-Cali in 4:00 a.m. the next heard a noise morning, about Sam-Cali Thereafter, the back door opened. the house and then alarm went off. The intruder fled. From that apparently on, an at night police stayed Allentown officer the Sam-Cali residence. 31, 1993, July
At 1:25 a.m. on Officer Brian approximately (Officer Lewis), home, at the heard Lewis who was Sam-Cali jarred the doors and noticed someone at the front being fingertips The officer of a hand black-gloved window. saw head, the screen to the He then a and removing window. saw body, then the rest of the enter the home. When the intruder home, fully challenged inside the the officer him. The intruder to the kitchen and The exchanged. went shots were bedroom, officer retreated to the he heard and banging where kitchen, ripping Upon returning at the kitchen door. the officer the kitchen The intruder empty. escaped by found breaking through several on a wooden door and glass panels pushing out the rear storm door. a.m.,
At about 3:30 or 3:45 to a Officer Lewis was called hospital local he identified as Appellant where the intruder at fresh, home earlier that evening. Appellant Sam-Cali had bleeding legs. wounds to both of his arms and He also had a healing scar of a bite mark several old on his upper weeks right day, arm. Later that obtained blood and hair police residence, from samples searched his where (1) found: a black ski a they pair gloves mask and under (2) cushions; soaked, the sofa several of blood a drops (3) green-and-purple striped rugby-type laundry; shirt (4) bathroom; additional blood additional pairs (5) a black gloves, including pair large gloves; rubber blood (6) socks; a pair high-tech stained shorts and of black sneak- bedroom; ers in .380 Appellant’s loaded semi- N.T., 10/31/94, pp. 1263-65. *22 closet, in used to handgun automatic the bedroom which prior disappearance to its some time belong Sam-Calis 31, July before on the in the stamp upper cartridge handgun
The head most that on the found empty cartridge casings was identical with morning. at the Sam-Cali house earlier that Officer Lewis shirt, shorts, sneakers, the horizontal black striped identified house, knit and rubber found at as cap, gloves Appellant’s at those worn the intruder the Sam-Cali residence. Fur- ther, Appellant person identified as the who assault- Sam-Cali and her. raped ed patterned design
It was later established that the size, cheek Schmoyer’s bruise on was consistent with high-tech and characteristics of the sneaker- design, wear Appellant’s seized from bedroom. There no evidence was injury to exclude the that the on her face possibility found was sneaker. by Appellant’s Similarly, patterns caused chevron that and belonged Schmoyer found on the Walkman radio the scene of her disappearance corresponded found at with spacing Appellant’s sneaker. shape 4, August The on 1993. At police Appellant interviewed time, Appellant that told the officers that he drove his two- automobile, Laser and that he never drove his Chrysler door automobile, mother’s four-door blue Ford license Tempo plate ZGP260, fact, In at except jobs. approxi- number to look for 7, 1992, mately September 3:45 a.m. on a little less than one death, month after an Allentown officer Burghardt’s police stop Tempo Appellant made a traffic of the blue Ford was 3, 1993, another Allentown officer operating. police On June the blue Ford at 2:40 a.m. and its stopped Tempo Appellant, way one-way was cited for on a operator, driving wrong At a.m. on the day Schmoyer’s street. about 6:25 abduction death, 9, 1993, Stengel, City June James an Allentown Reservoir, blue, at the a four-door automobile employee saw (which damage he later identified as a Ford to its Tempo) with in At about a.m. on right parking side the Reservoir lot. 6:40 day, carpenter way Appellant on his to work identified strangely only as a blue automobile and three operating acting July at about 3:30 a.m. on Finally, from the Reservoir. blocks 31, 1993, at the after the sought hospital when he treatment incident, in of the blue Appellant possession last Sam-Cali ZGP260, automobile, plate right Ford license side Tempo This automobile- body damage. by Appellant’s was owned North registered Kearney mother and was to 709 Street. subsequently Blood found the vehicle were later patterns determined to be from Appellant.
Additional evidence also established that resided Street, Allentown, 1992, Kearney August at 709 North murdered, until Burghardt September when Joan 14, 1993, May July from until his arrest on again *23 1993, time mur- during Schmoyer Fortney which and were in, dered and assaulted. did not reside or Appellant Sam-Cali visit, 23, 1992, Lehigh County September May between and 1993, time, 14, because, during period this of he was detained juvenile in a placement facility charge. Ap- on an unrelated (1) residence at North pellant’s Kearney 709 Street is about: Street, Schmoyer four blocks from 1057 East Gordon where abducted, was and about one mile from the Reservoir where (2) found; her from 1430 body was five blocks East Gordon (3) Street, murdered; and Burghardt where lived was five or Street, Highland six blocks from East Sam-Cali where (4) assaulted; and and from North resided was two miles Street, Bryan Fortney where and murdered. It lived was that from Appellant also established 1984 until resided Street, Allentown, at 310 North Second which is less than the place Fortney’s one block from murder. 12, 1993, October to the three relating
On incidents involv Sam-Cali, ing Appellant charged with Information Nos. 2450/1993, 2451/1993, 2452/1993, and which included three offenses, of burglary6 counts and related two counts of at homicide,7 offenses, tempted rape8 one count of and related assault,9 multiple aggravated counts of indecent and one count § 6. 18 Pa.C.S. 3502. 2501; § §
7. 18 Pa.C.S. 18 Pa.C.S. 901. §
8. 18 Pa.C.S. 3121. §
9. 18 Pa.C.S. the same to be carried a license.10 On of firearms not without that it intended day, Appellant the Commonwealth informed February on try together.11 Subsequently, these Informations 8, 1994, Informations filed additional (1) in the order: as related against Appellant following 0055/1994, homicide, charges included No. which Schmoyer homicide, indecent kidnapping,12 rape, aggravated criminal (2) assault;13 assault, as related to the Bur and indecent homicide, .0056/1994, charges No. which included ghardt homicide, trespass,14 rape, aggra criminal criminal burglary, (3) assault, assault; as relat and indecent vated indecent homicide, 0058/1994, No. included Fortney ed to the which homicide, trespass, criminal burglary, of criminal charges assault, indecent and indecent assault.15 rape, aggravated filed on October Common charges Similar to Information try that it intended to Appellant wealth notified 0055/1994,0056/1994, together.16 Nos. 0058/1994 (1) 28, 1994, to: guilty pleas entered February On homicide, firearms not to be criminal burglary, attempted 2450/1993, No. carried a license in Information without (2) 29, 1993; on relation to the attack on Sam-Cali June 2451/1993, in relation to in Information No. burglary 19, 1993; and July break-in at the residence on Sam-Cali homicide, criminal and firearms not to be attempted burglary, *24 § 10. 18 Pa.C.S. 6106. Nichols, Esquire, represented Appellant in with
11. David connection Record, through charges. Original CS-3. these See CS-1 2901(a)(3). § 12. 18 Pa.C.S. §
13. 18 Pa.C.S. 3126. 3503(a)(l)(i). §
14. 18 Pa.C.S. 0057/1994, day, in Information No. the Commonwealth 15. On the same acts, charged the nature of these Appellant with additional criminal but present appeal. charges disposition related to the of the is not Appellant's Initially, Office undertook defense the Public Defender’s 16. February Shortly filed in of 1994. in relation to the Informations thereafter, representation, the Public Defender's Office withdrew from 22, 1994, appointed citing April On the trial court a conflict of interest. Marinelli, Esquire, represent Appellant in relation to these Carmen and, 9, 1994, September appointed James charges subsequently, on also Burke, Esquire, Appellant’s in to assist defense. 2452/1993, carried a license in Information No. without relation to the at the July events Sam-Cali residence on the trial court Subsequently, Appellant sentenced to a forty-and-one-half eighty-one year prison sentence in con- nection his guilty pleas. 0055/1994,
The on parties proceeded Information Nos. 0056/1994, 0058/1994, and, and after a trial that from lasted 8, 1994, October 10 through jury November found Appellant guilty of three murders of the first degree all of the other offenses relating Burghardt, Schmoyer, Fortney homicides. Following trial, penalty phase on No 10, 1994, the jury vember sentenced Appellant death for each of the first-degree three murder convictions. The jury found the following aggravating circumstances each case: (1) the killing was committed during perpetration of a (2) felony;17 Appellant had a significant history felony (3) involving violence;18 convictions the use or threat of “has been convicted of another murder committed in any jurisdiction and committed either before or at the time of the offense at jury issue.”19 The found the additional aggra vating circumstance of “torture”20 in the Burghardt and Schmoyer homicides. The also found the following as mitigating circumstances pursuant to the “catch-all” provision (1) § of 42 Pa.C.S. 9711:21 “family background and environ (2) ment;” “use of alcohol and drugs;” and “school history.” See Sentencing 29, 1994, Verdict Sheets. On November trial court imposed additional sentences for non-capital offenses. 9711(d)(6). §
17. 42 Pa.C.S. 9711(d)(9). §
18. 42 Pa.C.S. l(d)(ll). §
19. 42 Pa.C.S. 971 9711(d)(8). §
20. 42 Pa.C.S. provides 21. The part statute in relevant as follows: Mitigating [a]ny circumstances shall include ... other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. *25 9711(e)(8). § 42 Pa.C.S. De motion on
Thereafter, a post-sentence filed Appellant trial errors. On 8, 1994, and pre-trial various alleging cember for the Motion 28, 1996, filed a se “Clarification pro he March to Counsel,” his expressing preference of New Appointment May appeal. on direct On counsel’s ineffectiveness raise trial for Notes of Testimo 6, 1996, filed a se “Motion Appellant pro 17, May By order dated Discovery.” Trial and for Post ny 21, 1996, the trial court relieved 1996, May on and filed appoint and representation trial counsel of further Appellant’s counsel.22 ed new 9, 1996, to amend his December until
Appellant given was motions. On post-sentence file motions or new post-sentence Motion 23, 1997, Supplemental se pro filed April Appellant 720,23 dismissed which was Relief to Pa.R.Crim.P. pursuant for into it right incorporate Appellant’s prejudice without Thereafter, counsel filed counsel. by appointed motions filed 28, 1997, supplemen July motions on post-sentence amended 1997, 15, and second September motions on post-sentence tal 10, 1999. September motions on post-sentence supplemental before the trial court were held evidentiary hearings Several 29, 2001, trial 1999. of June By 1998 and Order during Appel respects, except motions in all court denied the in the degree of the first of death for murder lant’s sentences a re- and Schmoyer homicides were vacated24 Burghardt Appellant given appointed and Initially, Law Offices were 22. Worth 1996, or file post-sentence motions September to amend his until However, July judge the trial post-sentence motions. on new Law Appellant alleging a member of Worth received a letter from result, by July order of interest with him. As a had a conflict of Offices 31, 1996, counsel, Waldron, Esquire, appointed to separate John J. determining purpose the existence represent Appellant for the limited of counsel, court-appointed and a any interest with his conflict of 8, 1996, By August purpose. order hearing was scheduled on 9, 1996, represen- were relieved of further August Worth Law Offices appointed represent him. counsel was and current tation time, Pa.R.Crim.P. 1410. this Rule was codified as 23. At the aggravator pointing out that the found opinion, In after its l(d)(l 1) capital § to all three in relation embodied in Pa.C.S. (1) sentences, explicitly aggravator is that: this the trial court observed the time of the either before or at limited to murders “committed issue;” (2) Burghardt was committed before homicide offense at homicides; Schmoyer Fortney homicide was Schmoyer
185 42 Pa. in accordance with ordered proceeding sentence followed.25 statutory appeal § This C.S. 9711.
II. Discussion Sufficiency of the Evidence A. sufficiency of the to the required review
“This Court first-degree of murder a conviction to sustain evidence Com imposed.” has been penalty the death every case where Koehler, 225, (1999), 334, 233 v. Pa. A.2d monwealth 558 737 (2000) denied, 829, 79, L.Ed.2d 41 121 148 cert. 531 U.S. S.Ct. 16, Zettlemoyer, v. 500 Pa. 454 A.2d (citing Commonwealth denied, 970, 2444, 103 77 cert. (1982), 461 S.Ct. U.S. 937 denied, 1236, 31, 1327, 104 rehearing 463 U.S. S.Ct. L.Ed.2d (1983)). regard this assessment perform L.Ed.2d 1452 We 77 claim of raises a appellant explicitly less of whether Zettlemoyer, 454 A.2d at 942 n. insufficiency of the evidence. stated that: previously We have claim, an sufficiency a of the evidence reviewing When and all reason- court must view all evidence appellate in the most favorable arising light able inferences therefrom in order as the verdict winner Commonwealth to enable the the evidence was sufficient determine whether this, Fortney light In of the trial court committed before the homicide. Schmoyer improper that it was for the to consider the concluded homicide, Fortney Burghardt because homicides in relation to the Burghardt Similarly, they homicide. were committed after the Fortney in relation to the homicide should not have been considered homicide, Schmoyer Schmoyer it was committed after the because Accordingly, the court vacated the death sentence for homicide. trial Burghardt first-degree and Fort- murder convictions related to ney homicides. case, appellate by Opinion 25. To facilitate review of this and Order 28, 2001, August designated Appellant's the trial court convictions (relating Burghardt pursuant Information to the Nos. 0055/1994 homicide), homicide) Schmoyer (relating where it 0056/1994 death, eligible interlocutory appeal pursuant vacated the sentence of 702(b). granted appeal § We in those cases. to 42 Pa.C.S. Thus, allowance (1) present Appellant challenges: guilt in the matter determi- concerning Burghardt, nations his convictions in relation to murders of (2) Fortney; Fortney Schmoyer, and the sentence of death for the homicide. 186
fact finder to find that all of the elements of the offenses a beyond were established reasonable doubt. Hall, 269, 190, (1997); v. 195 701 A.2d denied, 1534,
cert.
118
The facts at presented Appellant’s above-recited Commonwealth, light viewed most favorable to the clearly establish the of the murder sufficiency first-degree in relation to the homicide.26 Fortney Specifically, conviction presented the evidence sufficient for the abundantly that, 13, 1993, to conclude in the late hours of night July 14, 1993, early morning July Appellant, pos hours of and/or deliberation, sessing requisite specific intent and unlawfully Fortney.27 killed by Appellant
B. Claims Raised
a number of
for this
Appellant presents
arguments
Court
consider.28
of them
inef-
Many
allegations of counsel
involve
properly perform
statutory obligations,”
"To
our
this Court reviews
26.
sufficiency
penalty
of the evidence in all
where the death
is
cases
imposed.
Zettlemoyer,
Presently, Appellant
See
187
variety
patterns
indirectly
complexity and
of the fact
only
related to the
Rather,
present counsel for
appears
matter.
it
involved in this
attempt
this Court in an
a deliberate
to overwhelm
Appellant has made
conclusion,
elaborate, legal
reach this
because some
conundrum. We
arguments previ-
boilerplate reincarnations of
the raised claims are
Commonwealth,
rely
by
while others
on
ously rejected
the courts of this
involve meritless
of the trial record or
blatant mischaracterizations
allegations
ineffectiveness.
of counsel
advocacy
by present counsel
appellate
embarked on
approach
The
Ruggero J.
brings
the words of the Honorable
to mind
Appeals
Third Circuit:
States Court of
for the
Aldisert of the United
appellate
experience behind
a half of federal
court
With a decade and
me,
a
say
we
a trial court it is rare that
I can
that even when
reverse
successfully
that the trial court committed more
demonstrates
brief
open
I have said in
court
than one or two reversible errors.
points, a
appellant's
that contains ten or twelve
when I read an
brief
any
them ...
it is
presumption
[and]
that there is no merit to
arises
appellate
...
the effectiveness of
presumption
that reduces
[this]
advocacy.
Aldisert,
Competence
Appellate
Professional
and Profession-
"The
Bar:
Appellate
Eye
Responsibility-A
al
View From the Jaundiced
445,
original).
Judge,”
Cap.
(emphasis in
11
U.L. Rev.
458
judiciary,
Though
quoted by
passage
this
much
members of the
often
hollow,"
"rings
present
While we cer-
as demonstrated
case.
advocate,
attorney
tainly
duty
be a zealous
we
understand the
pose
presently
what we
encounter does not
that conduct such as
and,
parties
anything,
if
a disservice to
advance the interests of the
Hart,
(3d
See, e.g.,
287
the client.
United States v.
F.2d
Cir.1982) (“[b]ecause
objections
of the inordinate number of meritless
finding
appeal, spotting
like
pressed on
the one bona fide issue was
Ellis,
haystack");
in a
also Commonwealth v.
needle
(1993) (“[w]hile
A.2d
criminal defendants often believe that
*28
by raising
greatest
way
pursue
appeals
the
of
the best
to
their
is
number
issues, actually,
opposite
selecting
important
few
is true:
the
most
success”).
greatest
succinctly
presents the
likelihood of
As
issues
stated
Robert H. Jackson:
observed
Justice
contentions,
currency,
through
Legal
depreciate
like
over-issue.
appellate judge
habitually receptive
sugges-
The mind of an
receptiveness
tion that a lower court committed an error. But
assigned
Multiplicity
errors increases.
declines as
number of
any
[Experience
at lack of confidence in
one ...
on the bench
hints
multiplying assignments
will
convinces me that
of error
dilute and
good
weaken a
case and will not save a bad one.”
Court,”
Jackson, "Advocacy
Supreme
Before the United States
25
L.Q. 115,
(1951)
Temple
(emphasis supplied).
119
See also Smith v.
527, 536,
2661,
Murray, 477
106 S.Ct.
fectiveness.
572
813 A.2d
(2002),
announced,
rule,
726
this Court
as a
general
claims
of
of ineffective assistance
counsel should be raised for the
in
proceeding.
first time
a collateral
Id. at 738. The holding
retroactively
all cases
applied
pending
Grant was
to
on
direct
Id.
in
appeal.
Subsequently,
Commonwealth v. Free
man,
532,
(2003),
denied,
A.2d 385
827
cert.
- U.S.
-,
30,
(2004),
On
as
this Court decided Common
Bomar,
426,
(2003),
wealth v.
Pa.
Presently, because Appellant raised claims of counsel court, ineffectiveness before the trial trial court conducted evidentiary claims, extensive in relation hearings to these addressed their merits in its opinion, this case falls within exception narrow “Grant rule” articulated in Bomar. appeal focusing possible, ments on on one if central issue or at issues”); (3d key on a Vaughn, most few Buehl v. 166 F.3d Cir.1999) (commenting effective-appellate element of "[o]ne strate- gy selectivity deciding arguments is the exercise of reasonable which raise”). Though we are mindful of the ramifications of our decisions cases, capital gives no circumstance carte blanche the borderline *29 legal system represented by Appellant's abuse of the as the conduct of present attorney in this matter.
189 the counsel ineffectiveness claims will address Accordingly, we that this through following standard by Appellant raised on numerous occasions: past has set forth Court ... point presume As the for our review we starting this presumption, appel- counsel is effective. To overcome First, lant establish three factors. he must must show Second, claim has merit. underlying arguable appellant that counsel had no reasonable basis for his prove must In action determining action or inaction. whether counsel’s reasonable, do not there question we whether were other more courses of action counsel could logical which rather, pursued; have we must examine whether counsel’s any Finally, appellant decisions had reasonable basis. must establish that he has been counsel’s ineffec- prejudiced tiveness; burden, in order to meet this he must show that for the act or omission in the outcome of the question, but been If it is clear that proceedings would have different. appellant prejudice prong has not met the of the ineffective- standard, may ness the claim be dismissed on that basis alone and the court need not determine [initially] whether prongs the first and second have been met. Rollins, 532, 435,
Commonwealth v.
558 Pa.
738 A.2d
441
(1999) (internal
omitted);
citations
see also
v.
Commonwealth
Miller,
623,
denied,
504,
(2002),
Pa.
819 A.2d
517
cert.
540
50,
(2003);
U.S.
S.Ct.
1. Pre-trial a. Severance Appellant argues that the trial court erred in denying his motion for of the charges involving severance the different victims.
Pennsylvania Rule of Criminal Procedure 58229 provides relevant part: . trial, Appellant’s
29. At the time of this Rule was codified as Pa. R.Crim.P. 1127. *30 190 or informations separate in indictments charged
Offenses of each of the if ... the evidence together be tried may trial for the other in a separate offenses be admissible would no so that there is of capable separation and is ... of confusion danger 582(A)(1)(a). indict- separate or not “Whether
Pa.R.Crim.P.
trial
is within the sole
be consolidated for
ments should
be re-
court and such discretion will
of the trial
discretion
or
and
prejudice
a manifest abuse of discretion
only
versed
Newman,
v.
injustice
clear
to the defendant.” Commonwealth
(1991);
393,
275,
see
Pa.
598 A.2d
277
also
Commonwealth
528
(1981).
Morris,
164,
715,
Pa.
425 A.2d
718
v.
493
solely
is inadmissible
of distinct crimes
[While e]vidence
tendencies[,
criminal
evi-
s]uch
demonstrate a defendant’s
or
...
a common
scheme
plan,
dence is admissible
to show
crimes, or to
of
embracing
multiple
commission
design
of
long
proof
of the
so
as
identity
perpetrator,
establish the
true
the others. This will be
when
prove
one crime tends
in the
of each crime.
there are shared similarities
details
Keaton,
529,
442,
A.2d
537
v.
556 Pa.
729
denied,
1163,
(1999) (internal
omitted), cert.
528 U.S.
citations
(2000);
1180,
also see Common
120
Although Appellant class,”30 argues he in case of the same this were considered a distinctive enough not similar to be crimes were Appel- single perpetrator. Specifically, of a operandi modus Appellant, p. 12. 30. Brief for (1) Fortney away
lant out that: lived two miles from points (2) Burghardt Schmoyer; temporally the crimes were not related, months; but ranged period over eleven there no “real relationship” way the victims were killed.31 Moms, however,
As in is difficult to conceive of “[i]t any joinder situation propriety where could be clearer.” First, at all place A.2d of the attacks took in the Allentown, general same locale—the East Side within mere or, case, blocks from where Fortney’s lived as *31 described, used to As previously Appellant’s live. residence at (1) the time of his arrest was about: four blocks from where abducted, and one Schmoyer was about mile from the Reser (2) found; body voir where her blocks from five where (3) murdered; Burghardt lived and was or six from five blocks assaulted; (4) where Sam-Cali resided and was and two miles from Fortney where lived and was murdered.32
Second, in relation to the temporal relationship the between crimes, this Court has in the past held that “remoteness in time ... between offenses” does not render consolidation se, but is improper per simply another factor to be considered Newman, analysis. in the See A.2d at 278 (allowing introduction of evidence of another crime in of an spite offenses); eighteen-month the gap between two Common- 423, 1264, (1989) v. Hughes, wealth 521 Pa. 555 A.2d 1282-83 Appellant, p. 31. Brief for 13. Fortney's appears
32. While it true that away is home to be further from mentioned, Appellant's point residence than the other sites we first out long that two miles is not such a distance as to render this crime so distinguishable Schmoyer Burghardt from the homicides that a See, inappropriate. e.g., consolidation of Informations would be Com- Wable, 334, (1955), monwealth v. 382 Pa. 114 A.2d 336-37 which prosecution a place involved for murder of a truck driver that took at a Court, stop along Pennsylvania Turnpike, citing rest the where this committed, similarity way in the the crimes were found no error in (1) allowing testimony concerning: another murder of a truck driver at stop county along Pennsylvania Turnpike; a rest in the same (2) shooting highway a a approximately of truck driver on a in Ohio Second, Pennsylvania Turnpike. fifteen miles from we take also 1986, Appellant note that from 1984 until than resided less one block Fortney from where lived and was murdered. not between crimes was too gap that a ten-month two (holding Donahue, v. A.2d remote); con- opinion) (allowing testimony (plurality 127-28 of child abuse in a case three-year-old acts where cerning abuse). Presently, by alleged death caused child victim’s months, at a of eleven span period the attacks issue August ten months from (approximately “idle” longest period 1993) taking place of between through of 1992 June note Preliminarily, homicides. we Schmoyer Burghardt of time as to long period is not such a that eleven months improper. render consolidation that, during as previously explained, further out point We “idle” did not period, Appellant an extended of this portion in, visit, County, because he was detained Lehigh reside or In respect, present this juvenile placement facility. a Rush, eight years similar to where remarkably matter assaults. 646 A.2d at commission of two similar separated case, In that observed: we interval cause the occur- Normally lengthy such a would remote; however, too for most rences to be considered (with days) exception eighty-four eight years] [these Excluding imprisonment, incarcerated. this appellant was days acceptable is within span eighty-four time *32 remoteness standard. at
Id. This rationale is to the matter hand— equally applicable juvenile detention at a period Appellant’s the of excluding crimes four facility, spanned approximately the placement months, remoteness stan- “acceptable is well within which Newman, supra; our decisions. See dards” set forth sum, the Hughes, supra. only In these observations reinforce regard conclusion to the consolidation trial court’s with Informations. various joinder improp that
Finally, complains was Appellant the er, relationship” way no “real the because there is truth, can further from the Nothing killed. be victims were contact any prior the knew or had however. None of victims raped beaten and within savagely All were Appellant. with area and two leaving of Allentown Appellant two months
193 Each of return to that locale. months of his and one-half a by hand or range murdered at close brutally victims was case, left behind In instrument. each hand-held evidence, exception incriminating physical no virtually microscopic, through subsequently discovered of what was cases, Appel- samples In all three examination. scientific scenes. Each from the crime DNA were recovered lant’s hours. early morning in the night committed at or attack was characteristics— personal the same all victims shared Finally, females, in and around who lived they overweight, were white the East Allentown area. adequate been held evidence has
Previously, analogous
connection for consolidation
logical
a sufficient
establish
Keaton,
also held that
A.2d at 537. We have
trials. See
729
of a common
testimony
sufficient to
similar evidence was
allow
crimes
See
way
perpetrated.
or
in the
were
plan
scheme
(1997)
Elliott,
132,
We have trial on motions for appellant’s change The court’s decision rests the sound discretion of the trial within venue/venire not on judge, ruling appeal whose thereon will be disturbed In the trial reviewing absent an abuse of that discretion. decision, upon any our must focus whether inquiry court’s issue, argues that his In relation to severance also failing argue properly present counsel was ineffective for presented The record discloses that counsel in fact severance motion. Accordingly, argu- argued trial this that motion before the court. ment is without merit. Sam-Cali, subsequent 34. The article described the initial attack on residence, Appellant's apprehension. See incidents at her ultimate Kathryn Casey, Caught My Rapist,” September “I Journal, Ladies’ Home 1994. Vol. CXI. No. 9. dd. 168-71. 225-26.
195 juror opinion guilt formed a fixed of the defendant’s or pre-trial publicity. innocence as a result of the A in the trial court change necessary venue becomes when concludes that a fair and cannot be selected impartial in county Normally, in the the crime occurred. one which a fair trial of who claims that he has been denied because in the pretrial publicity prejudice empan- must show actual cases, however, jury. In certain elling pretrial pub- licity pervasive inflammatory can be so or that the defen- juror dant need not actual prove prejudice. (1) prejudice presumed publicity
Pretrial is if: the is sensa- tional, inflammatory, and slanted toward conviction rather (2) objective; than factual and the the publicity reveals record, prior defendant’s criminal or if it refers to confes- sions, admissions or reenactments of the crime the (3) accused; and the is publicity police derived from officer prosecuting reports.
Even is a pre-trial prejudice presumed, change where venue or venire is not warranted unless the defendant also extensive, publicity that was so sus- pre-trial shows tained, and that pervasive community must be deemed it, been have saturated with and that there insuffi- publicity cient time and the trial for any between prejudice dissipated. testing have In whether there has cooling period, been a sufficient a court must investigate a panel prospective jurors expo- what has said about its sure to the in publicity question. This is one indication of Thus, cooling whether has been sufficient. period determining efficacy cooling period, a court will consider the direct effects of a publicity, something defen- allege dant need not or it is prove. Although conceivable pre-trial could be so that publicity extremely damaging a might change court order a of venue no matter what jurors said about their prospective ability hear the case bias, fairly without would be most unusual case. Normally, prospective jurors ability what tell us about their to be be a impartial guide will reliable to whether publicity is still so fresh in their minds that it has removed
196 the trial objective. The discretion of ability
their to be in this area. latitude judge given wide 893, Drumheller, 117, 902 570 Pa. 808 A.2d v. Commonwealth denied, (internal omitted), cert. 539 U.S. citations (2003); Hughes, also see 156 L.Ed.2d S.Ct. Pursell, 1279; 495 A.2d v. A.2d at (1985). 183,187-88 that, referring to “sensational
Initially, despite note we media, ... public all of the highly inculpatory publicity *35 of of the incidents to the date day discovery the of the from trial,” of the Ladies’ Home Journal exception the the with brief, any refer to article, specifically does not Appellant in his Appellant, p. Brief for 15. or media outlet. publication other make contention any fails to Accordingly, Appellant because other than pre-trial publicity item of relating any specific article, even if we aforementioned Ladies’ Home Journal the that his publicity, of such we find assume the existence in relation to those items. See Commonwealth fails argument (observing A.2d that v. Casper, does not warrant a pre-trial publicity the mere existence of prejudice). of presumption
Furthermore, the record thoroughly reviewing after by made complaints Appellant. are not the persuaded we the jurors of the in relation to part bias on Any potential during dealt with coverage sufficiently media of the case was counsel, dire the defense individually-conducted voir when court, jurors trial the potential and the asked prosecutor, or read about the case. they anything had heard whether other, Indeed, excused for unrelated rea preliminarily unless prospective jurors sons, questioned about each of concerning familiarity knowledge the case and their their that jurors media outlets. stated the incidents from Some further they ques about the incidents and were they knew be ability their to decide the case would tioned about whether jurors that The record reveals of the who were affected. case, through their gained knowledge most aware homicide Schmoyer’s circulated at the time of reports media year more than a which was apprehension, Appellant’s indicates the clearly This begin.35 trial set before the any that minimized off “cooling period” a sufficient of presence surrounding the events at of the publicity ill effects potential issue.36 selected jurors and four alternates
Ultimately, the twelve impartial be fair and when they trial all stated that would undertaking independent After an review the case. hearing are proceedings, of the voir dire we transcript the entire inability not result in the publicity that did pretrial convinced County. There- impartial Lehigh a fair and to select fore, denying not its the trial court did abuse discretion is not Appellant change motion for a venue/venire reason, For this we find relief on this claim. any entitled allega- not entitled to relief on his similarly that Appellant in relation to the motion to tion of counsel ineffectiveness change venue/venire. concerning alleged the argument
We also believe question persons failure counsel to venire Appellant’s Home article is unmeritori- patently about the Ladies’ Journal prospective jurors they formed an We note that who indicated coverage were uncompromising opinion about from the news *36 168-69; 103-06, N.T., See, N.T., 10/10/1994, pp. e.g., excused. 1155-57; 10/13/1994, 1041-42; 1087-89, N.T., 10/14/1994, pp. pp. 1406-07; N.T., 10/19/1994, 1265-66, pp. Similarly, potential 2441-46. through Appellant’s guilty pleas jurors learned the media about in who were also excused. relation to the incidents at the Sam-Cali residence See, N.T., 10/18/1994, e.g., pp. 2082-85. matter, guided by particularly In are the words of the U.S. this we Dowd, 717, 722-23, Supreme Court in Irvin v. 366 U.S. 81 S.Ct. (1961), L.Ed.2d 751 required jurors totally ignorant ... It is not that the be of the facts swift, widespread days In of and diverse and issues involved. these communication, important expected of an case can be methods vicinity, scarcely any public the interest of the in the and of arouse qualified jurors will have those best to serve as not formed some opinion particular- impression or as to the merits of the case. This is any ly in criminal To hold that the mere existence of true cases. accused, preconceived guilt notion as to the or innocence of an more, presumption prospective to rebut the of a without is sufficient juror's impartiality impossible would be to establish an standard. It juror lay impression opinion if can or and is sufficient aside his presented in render a verdict based on evidence court. that, a Presently, Appellant specifically argues ous. “[a]t minimum, a of inquiry counsel should have made careful [trial] article, and the jurors regarding the Ladies Home Journal any questions.” Appel record is devoid of such Brief for lant, declaration, p. (emphasis supplied). Contrary this dire, during Appellant on numerous occasions voir counsel for potential persons, asked venire two of whom were later ac alternate, jurors as an sub cepted they and one as whether N.T., scribed to or read the Ladies’ Home Journal. See 10/11/1994, 341, 565; 10/13/1994, 961,371171; N.T., N.T., p. pp. 10/18/1994, 2100; N.T., 10/20/1994, p. p. 2788. We believe clearly this indicates that counsel were aware of Appellant’s and, fact, the article in the Ladies’ Home in ques Journal potential persons publica tioned the venire in relation to that Therefore, reject tion. we this claim without its reaching merits, allegation because the record before us contradicts the made by Appellant. Jury Array
c. that his trial counsel ineffective Appellant argues failing modify to ask the trial court the procedures in employed Lehigh County pool to select members of the of jurors try points Lehigh available to this case. He out that County jurors trial are from from the purchased selected lists (PennDOT) that Pennsylvania Department Transportation county, contain names of residents of the who are registered procedure with PennDOT. maintains that this is “unlawful, and constitutional improper, legal and violates [his] (1) juries “it rights” likely unrepre because: to result ... community, sentative of a cross section of the ha[s] continuously represent population failed to certain identifiable time;” groups period process over an extended “the citizens, systematically youthful, elderly excludes disabled youthful, because the percentages elderly disabled 13, 1994, Attorney specifically questioned 37. On October Burke *37 prospective person Home venire whether she subscribed to the Ladies' and, answer, receiving whether Journal after an affirmative asked she reading Appellant. person remembered an article about The venire did N.T., 10/13/1994, reading p. not recall this article.
199 substantially voters is smaller than the of percentages youth- ful, elderly and disabled citizens in the population of the (3) “the county;” process systematically large excludes num- service, bers of non-caucasian from population jury because the of percentage driving non-caucasians or regis- otherwise substantially tered with is smaller than the per- [PennDOT] (4) in centage of non-caucasians the of the population county;” “the process systematically large youth- excludes numbers of ful, service, elderly jury and disabled citizens from because percentage youthful, elderly of and disabled citizens driving or registered substantially otherwise smaller [PennDOT] than the percentage of non-caucasians in the population (5) county;” system violates the statutory require- “[t]he jurors.” ments for the selection of trial Brief Appellant, 18-19. pp. statute, applicable Pennsylvania
The entitled “Selection of prospective jurors,” in provides part: relevant annually jury
At least selection commission shall pre- pare jurors. master list of prospective The list shall registration contain all voter for the county, lists which lists reference, be may incorporated by or from names such other in lists which opinion commission will provide a number of prospective jurors names of which is equal to or than greater the number of in names contained registration the voter list. 4521(a). §
42 Pa.C.S. We have held numerous occasions on that to establish a prima violation of the requirement facie that a jury array fairly represent community, defen (1) dant must prove that: the group allegedly excluded a (2) in group distinctive the community; representation group juries this venires from which are selected is fair not reasonable relation to the number of people such in the community; this under-representation is due sys tematic exclusion of in the group process. selection Johnson, See (Raymond) 23, Commonwealth v. 838 — (2003), denied, U.S. -, A.2d cert. 125 S.Ct. (2004); (Roderick) 160 L.Ed.2d 471 Commonwealth v. John son, Pa.283, (2002). 815 A.2d For purposes
200 “ in or inherent by means caused ‘[systematic’ analysis,
this (Roderick) John- juries were selected.” the system which son, A.2d at 575. 815 trial, Lehigh County drew Appellant’s the time of
At
county.
in the
list of licensed drivers
from the
jury pool
its
Com
in
N.T., 10/19/1994,
years ago,
2329-58. Four
See
pp.
cert.
(1999),
131,
v.
A.2d 485
Lopez,
monwealth
559 Pa.
739
(2000),
denied,
2203,
1206,
201
to a
Sixth
deprivation
as to amount
substandard
counsel”)
Com
(emphasis
original);
right
Amendment
(1997),
346,
313,
A.2d
324-25
v.
550 Pa.
706
Henry,
monwealth
Horn,
F.Supp.2d
218
Henry
v.
granted
part,
corpus
habeas
(Lark PCRA),
(E.D.Pa.2002);
548
v. Lark
Commonwealth
671
Cox,
(1997);
v.
Pa.441,
698 A.2d
(1996) (counsel
not ineffective
A.2d
jurors “assured” the court
jurors
failing
“life-qualify”
where
instructions),
*39
court’s
the law and the
they
would follow
999,
567,
denied,
118
Presently, testimony replete the notes with prosecutor counsel and the both defense examples where to jurors be able be they asked the whether would prospective could deciding they fair and in the case and whether impartial the imposing proper the trial court’s instructions follow the to ensure that questions posed sentence. Additional were automatically penalty, not the death but jurors impose would by as to them statutory guidelines explained follow the would the legally required jury the trial That is all that is of court. therefore, and, reject by Appellant. the raised argument we that, claim, Appellant by
In a related contends allow jurors to about their ing prosecutor question prospective excluding from the capital punishment attitudes towards jurors challenges, court-sanctioned “for cause” all jury, by trial penalty, a fixed to the death court opposition with “death-qualify” erroneously permitted Commonwealth also annexes an ineffectiveness claim to jury. Appellant object to this citing this his counsels’ failure to argument, error the trial court. supposed however, light repeated
This
lacks merit
argument,
Court and this Court
holdings by
Supreme
United States
any persons
exclusion from the
of
whose views
allowing
prevent
substantially impair
on
or
capital punishment would
jurors in accordance
performance
their
of duties as
See,
McCree,
v.
e.g.,
instructions and oaths.
Lockhart
476
(1986);
162,
1758,
106
wealth v. 554 Pa. 721 A.2d 778 held that ing repeatedly process Court “[t]his determine jurors any has screening prospective whether moral, him religious, prevent or ethical beliefs that would or penalty her from for the death is consistent with voting trial”), denied, a fair cert. 120 guarantees of U.S. Lambert, 942, 145 (2000); v. S.Ct. L.Ed.2d (1992). Similarly, 603 A.2d the ineffec fails, argument tiveness because we will not find counsel objection. to raise a failing ineffective for meritless that the trial court erred in Appellant argues also permitting question prospective jurors about prosecutor imposing whether them from Appellant’s age prevent would Again, the death maintains that trial penalty. failing objection counsel ineffective for to raise an on this ground.
“The
of the voir dire rests in the sound discretion of
scope
the trial
not
unless
judge, whose decision will
be reversed
error is established. The
dire is to
palpable
purpose
voir
empanelling
impartial jury capable
ensure the
of a fair and
following the instructions of the trial court.” Commonwealth
*40
(internal
1,
859,
(2000)
citation
Bridges,
v.
757 A.2d
872
denied,
1102,
2306,
omitted),
535
122
152
cert.
U.S.
S.Ct.
Marrero,
(2002);
L.Ed.2d 1061
see also Commonwealth v.
546
1102,
(1996),
denied,
977,
Pa.
522
687 A.2d
1107
cert.
U.S.
(1997);
118
We note the prosecution, questioned potential jury defense counsel relation to their feel- Appellant’s age members about and its See, N.T., ings imposition e.g., about of the death penalty. 10/17/1994, N.T., 10/18/1974, 1975-76; N.T., 1920; p. pp. the defense and the 10/19/1994, that both p. Given issue, fail on this we persons the venire prosecution questioned present trial court in the on the any part to see error objection that the any mutual light inquiries, In of these case. the trial ground raised on this before defense would have Accordingly, as meritless. we have been overruled court would of ineffectiveness. reject allegation also this be that a new trial should additionally maintains peremptory challenges he forced to use because was granted been excused “for who should have persons, to strike venire cause,” challenges his before peremptory and he exhausted (1) alleges that: Specifically, Appellant was seated. (Smith) that he could not repeatedly stated Ronald Smith juror, if a because of his mother’s concentrate selected as (2) (Furr) not Lynn Furr was obligations; illness and business cause,” she had seen although to be excused “for allowed case; child, had a who was a concerning media reports (as Schmoyer); pastors knew Morning carrier for the Call was her Schmoyer; ability attended and doubted at the church (3) not Taglang (Taglang) Ann was impartial; to remain cause,” “for she demonstrated although allowed to be excused given that a sentence should be opinion a fixed death murder; (4) Rosen first-degree of a for Susan event conviction (Rosen) cause,” “for although not allowed to be excused a victims and indicated it therapist treating rape she was to remain Dr. impartial; would be difficult her to be (Zager) Michael was not allowed excused “for Zager cause,” doctor, a although expressed he was medical who concerns,” and “specific hardship professionally acquain- forensic were pathologists, two who ted/associated (and did) at testify trial. expected determining prospective
The test for whether *41 he or is juror disqualified willing should be is whether she and render a any scruples able to eliminate the influence v. according to the evidence. See Commonwealth verdict (1989); Lane, 390, 1246, 1249 521 Pa. 555 A.2d 204 Colson, 440, 811, (1985),39 denied,
v.
507 Pa.
490 A.2d
818
cert.
1140,
2245,
(1986).
476 U.S.
106 S.Ct.
“Jurors
for cause when
do not
have the
or
to eliminate the
ability
willingness
influences
they
operating
under which
are
and therefore cannot
render
according
verdict
to the evidence.”
Impel
Commonwealth v.
lizzeri,
296,
422,
(1995),
443 Pa.Super.
661 A.2d
appeal
427
denied,
725,
543 Pa.
Commonwealth v.
Pa.
89 A.
(1913). “The
proving
burden of
that a venireman should be
Burke,
Abrogated
grounds by
on other
Commonwealth v.
(2001).
The defendant
Colson
she
ties to
should
been excused “for cause” because
“had
have
families and
wit-
prosecutor’s
prosecution
the victim’s and
(1)
Indeed, this
person:
nesses.”
In
v.
encounters would verdict. Id. impartial potential jurors Appel that all The record reveals the instructions they could follow lant mentions indicated fair verdict delivering impartial trial court in from the they may The fact that of the case. based on the evidence questioning during some responded equivocally have *43 “for cause.” them to be excused automatically require does not decisions complains also of “inconsistent” Although Appellant jurors allegedly positions in similar by the trial court because argu not address those differently,40 we will were treated into have us delve contrasting inquiries ments. would Such who, judge, having the trial discretionary judgment dire in jurors the voir prospective through seen and heard the matters. rulings to make such position is in the best person, Lane, Lewis, supra. supra; See Appellant, made specific allegations by Turning jury, on the difficulty serving expressed Smith indeed N.T., obligations. of his mother’s illness and business because 10/10/1994, However, that: Smith also testified pp. 301-02. (1) rendering not him from prevent his mother’s illness would (2) verdict; ability to concentrate impartial a fair and his his by be affected only “possibly” the trial would during N.T., 10/10/1994, additionally 298. Smith p. mother’s illness. that, from familiarity newspa his with the case despite stated accounts, impartial a fair and he be able to render per would N.T., 10/10/1994, It appears 296-97. pp. verdict. a sufficient expressed not feel that trial court did Smith N.T., 10/10/1994, jury duty. pp. from hardship to be excused 303-04. instance, several Appellant maintains that the trial court excused
40. For persons, arguably similar or even less onerous venire who indicated Smith, per- prospective venire hardships than and dismissed another Call, son, Morning because daughter paper a carrier for the whose was case, refusing grant challenge a "for reaction to the while of his alleges ground that the in relation to Furr. He also cause" on same profession- Zager to his to strike Dr. "for cause” due trial court refused automatically excusing medical doctor obligations, another al while exception. jury pool, hardship” from the because of "undue out that Furr had in pointing is correct child, case; was had who concerning reports media seen (as and knew Schmoyer); Morning Call a carrier for However, Schmoyer. church attended at the pastors to his cause. much assistance offers these observations none of reports media mere exposure note that Initially, we to sit on unable person venire prospective render a does not McGrew, v. jury. See Commonwealth has juror fact that a (observing “[t]he A.2d or an impression has an a case and or heard about read cause if rejection for is not ground or a prejudice opinion, not fixed that his opinion believes and the Court he testifies from the solely his mind up can and will make and that he case”). at the trial presented be evidence which will “emotional re- that she had an Furr stated Admittedly, a Morning Schmoyer, who happened to what sponse” for this carrier, paper once a carrier because her son was Call N.T., 10/12/1994, pp. about him. and she worried a fixed However, opinion that she did not have Furr testified 872-73, at 883. She innocence. Id. guilt or Appellant’s about *44 differently reacted “I think that I have later stated: don’t also parent” than other any a fixed opinion or with more of homicide Schmoyer to the response her further characterized be.” any as would parents ... much the same as a “reaction at 883. Id. at the knowing pastors acknowledged Furr
Although
in
also involved
by Schmoyer, who were
church attended
“no
service,
having
person-
testified to
funeral
she
Schmoyer’s
N.T., 10/12/1994,p. 884. We
in the matter.
al involvement”
relation-
amounts to “a close
this association
fail to see how
counsel,
situational,
financial,
familial,
parties,
or
ship,
disqualification
a basis for
victims,
to provide
or witnesses”
Colson,
In relation to Taglang, Appellant maintains that she demonstrated an uncompromising opinion that a death sen given tence should be in the event of a conviction for first- degree however, murder. A of her testimony, review entire belies this assertion.
Initially, Taglang thought stated that she she could be fair impartial deciding case and that she had no moral, religious, or philosophical beliefs that might impair her N.T., 10/17/1994, in that regard. Thereafter, abilities p. 1835. that, testified if Taglang homicide, of a guilty the penalty only should be death. Id. at 1841-42. At one point, response question posed by trial court— you “Do have a fixed pretty opinion that is somebody kills somebody, person gets answered, “Yes, killed?”—Taglang Yes, I do. I do.” Id. at 1842.
However, the following exchanges place took later: is, Prosecutor: All asking you we’re to do can you put aside your personal beliefs and listen to what the aggravating are, circumstances listen to whatever the defense portrays circumstances, as mitigating and balance them? If you come to the conclusion that the aggravating circumstances outweigh the then death mitigating, is appropriate. (Nodded Taglang: affirmatively.) *45 hand, Prosecutor: On the other what defense counsel wants know is or not if you whether conclude that some of the mitigating circumstances that they may present, else, including age—and they may if present something they in circumstances convince mitigating choose—if fact so consider you that would outweigh aggravating, you they instructions. life and follow Court’s (Nodded Taglang: affirmatively.) you your do feel answer you
Prosecutor: Do think—how would be? question Taglang: I I I could. could. guess
* * * and, beliefs your personal aside you put Prosecutor: Can and, two, one, the case on the evidence follow decide respect to the law? Court’s instructions with Taglang: Yes
[*] [*] [*] more comfortable you, you The Court: Let me ask do feel the death your deciding about what role would be now life penalty imprisonment? or
Taglang: Yes. Yes. that, once you you you
The Do think could handle Court: aside idea of a testimony? you put your heard all the Could life, a for a that aside? you put life for a tooth tooth? Could it okay your personal That be for views but isn’t may Pennsylvania. Could that be set aside? law Taglang: Yes.
N.T., 10/17/1994, 1844-46, 1857-58. From the tran- pp.. above “rehabilitated,” it is clear that as script, Taglang properly ultimately put personal she testified that she could aside her notions and follow the court’s instructions relation to the law, juror. required by which is all that is law of a Rosen, that, respect
With contends be and her mother as person therapists, cause this venire worked victims,41 “situational rape affinity” who treated she had therapist indicated that her mother a sex who dealt with Rosen N.T., 10/18/1994, rape pp. Rosen victims of incest. 1996-97. (1) parts: counseling described her own work in three "school-based abuse, ideation, abuse, dealing teenagers physical of sexual suicide teenagers depression, pregnancy;" and children in assessments law; (3) out-patient therapy. trouble with the Id. at 1997-98. *46 impartiality.” her and undermine her judgment would “cloud however, overly Appellant, p. Again, Appellant Brief for 52. Rosen. referring given by selective in to the answers immediate reaction to the news It is true that Rosen’s N.T., 10/18/1994, Appellant guilty. pp. accounts that was 1968-70. Rosen also stated that because of her work with abused, might “it raped sexually women have been who Id. at 1972-73 (emphasis be hard for me to stay impartial.” Nonetheless, that she be supplied). Rosen also testified would burden of judge’s regarding able to follow the instructions a fixed that proof through already opinion even she had and that the of the trial Appellant guilty penalty phase the facts ability weigh not affect her to look at and all of would 1972; or innocence. Id. at guilt and make a determination of After the and trial counsel prosecutor explained 1974-75. nature of the Rosen testified that penalty phase proceedings, sentence, could a life if the circum- impose mitigating she Id. at outweighed aggravating stances circumstances. Finally, 1980-81. when counsel for defense asked Rosen her about put opinion whether she would be able to aside fixed Appellant’s guilt impartially judge and “be able to fair and render a fair and testimony coming impartial that’s verdict,” responded Rosen as follows: media, always
I think in
has a
listening
everyone
opinion listening
fixed
to what’s on the news. So when we
here,
it
do come in
I think
have to realize would
we would
But,
starting
all be different. You would be kind of
fresh.
so, see,
I
I think I
is to do. So
right thing
know what
it,
think I
do it.
I would do
I mean.
probably would
Id. at 1989-90.
of the voir dire
Hence, a
tran
reading
fair
script
categorical
reveals that Rosen did not indicate a
bias as
that
profession
result of her or her mother’s
and shows
she
put
objective juror.42
could
aside her
views and be an
personal
Rosen,
argument
relating
support
Appellant
In
cites to
of his
(1995).
Perry,
Pa.Super.
In
Commonwealth v.
During questioning, Zager stated that there no were “insurmountable” that problems prevent would him from be- that, selected, ing juror N.T., and if he would serve. 10/14/1994, pp. 1454. He also stated that there would be that him from nothing keep concentrating would on the case Later, during trial. Id. at 1454. he following: added the mean, I thinking here, I’ve been for the last few minutes some of weighing your questions from before about the hardship and that sort of I’m thing, and sort of increasingly honest, hesitant at this if I can point, be about the hardship that be on placed my—the physicians would other in my practice and that sort of if that thing, weighs in.
Id. at 1455. Dr. Additionally, Zager acknowledged that he knew Drs. Isadore Mihalakis and Wayne Ross—forensic pa- thologists, expected testify who were during the trial— because he trained under both of them at one point for a brief period of time his during residency at Lehigh Valley Hospital trial) (approximately years before two and intermittently dur- ing the course of his Id. at practice. 1457-58. Dr. Zager acknowledged that his relationship with Drs. Mihalakis and trooper this state "an honorable man and that he had no doubts trooper’s] veracity;” whatsoever personal experi- about [the his possibly” trooper's ences "would affect the testimony. evaluation of this court, however,
Id. at 991. The trial challenge refused the defendant's cause," prospective juror "for because the also stated that he could impartial trooper's credibility remain and assess the "on the same any reversed, standard as Superior other witness.” Id. The Court finding that "presumed the trial court should have a likelihood of prejudice” regards person. to this venire Id. Aside from the fact Court, that Superior we are not bound decisions of we note present testimony that situation not remotely does disclose even Perry. similar to them in a friendlier him to regard make tend Ross would Id. at 1458-59. manner, try objective. to remain but he would testimony pre- that he would consider also indicated He objective Id. at 1447-48. in an manner. by both sides sented Dr. Za no testimony shows evidence The above-cited incurred a hard his would have practice, patients his or ger, he trained Zager Dr. stated that Additionally, although ship. testify at trial and expected expert under the witnesses Zager Dr. professional capacity, them in his interacted with familiarity with the that he could set aside his also related form based on the witnesses, objective, opinion an remain answers, In of these we light at trial. presented evidence Zager’s because of Dr. connection prejudice presume cannot Ross, the remote nature especially given Mihalikis or Drs. relationship.43 their sum, deferential of its decisions this given
In our view above, we find explained the law and the rationale area of “for denying abuse its discretion the trial court did not Lane, persons. supra; to these venire See challenges cause” Lewis, Colson, *48 supra. supra; that he of a fair argues deprived also was
Appellant Lamar Cramsey exclusion “for cause” of by improper trial to the death upon respect based his views with (Cramsey), Cramsey that ex although maintains penalty. Appellant penalty, the death he scruples against conscientious pressed penalty that he could the death ultimately indicated consider in an case. appropriate juror be may a recognized, prospective
As have often we capital punishment his on excluded “for cause” when views of his substantially impair performance or prevent would given by in the instructions juror as a accordance with duties A.2d at juror’s Bridges, oath. 757 judge the trial See reasoning, argument light Appellant's that his counsel was 43. In of this cause,” challenge Zager failing Dr. "for because of his for ineffective witnesses, fails. See Common relationship with the Commonwealth Johnson, Pa.118, (James) 588 A.2d 1305 v. 527 wealth (counsel's constitutionally deter effective once it is assistance deemed merit). arguable underlying claim is not of mined that the
213 Stevens, A.2d 521 Pa. v. 873; Commonwealth into the substan- not need to delve (1999). we do Presently, however, decision, for even the trial court’s analysis tive excluding erred in that the trial court assuming arguendo cause,” light error harmless “for such Cramsey chal- peremptory had several fact Commonwealth Cramsey If not been selected. left after the lenges cause,” peremptori- have could “for struck challenges. See juror remaining its removed this ly reason, entitled Lewis, Appellant this A.2d at 1381. For argument. on this to no relief process, to the voir dire relating
'In final claim his “improp that his counsel was ineffective argues Appellant on several justification, conceding] legal erly, without frankly’ degree first ‘quite the crimes were occasions contending Although 55. Appellant, p. Brief for murders.” took on multi place detrimental conduct supposedly that this only cites occasions, Appellant of his support argument, ple erroneous, however, 10/19/94, citation is “NT 254.” This p. 19, 1994, number transcript of the from October pages as the Moreover, statement alleged through from 2316 pages does not on appear made the defense counsel also 2354, 2454, 2554, from transcript the 254th Octo page 19th, record.44 or the 254th of the entire voir dire page ber Thus, argument. Appellant’s are unable substantiate we
Nonetheless, occasions multiple have discovered that on we dire, counsel for made references during voir on the seeking that the a conviction fact Commonwealth was special and that there were charge first-degree murder See, associated with such conviction. penalty proceedings N.T., 10/19/1994, By way of these refer- e.g., pp. 2566-67. *49 ences, Appellant began questioning prospective counsel for jurors feelings potential prejudices concerning about their that such statements were capital punishment. We believe the context of this case. entirely proper within Overall, pages. span over 2800 44. the notes of voir dire in this case
2.
Phase
Guilt
a. DNA Evidence
contends that his trial counsel was ineffective with
testimony
experts by
to the DNA
of
respect
Commonwealth
cross-examining
respect
not
evidence or
them with
introducing
the
of
statistical mod-
acceptance
existence
alternative
els.
contends that his counsel should
Specifically, Appellant
(1)
questions concerning:
have raised
the witness’
specific
evidence;
analysis
reliance on the
rule”
of the DNA
“product
the
and the use of
impact
population substructuring
in
“ceiling
analysis
the
statistical
of DNA evidence.
principle”
Blasioli,
in
v.
years ago,
Six
(1998),
that, in
First, brief hints at nothing Appellant’s showing even that the application “ceiling principle” use and could generate results that “have into question would thrown testimony of the Commonwealth witnesses.” Trial Court Second, Opinion, contrary 43. his p. Appellant’s allegations, trial extensively counsel cross-examined the Commonwealth witnesses, N.T., expert testing validity testimony,45 their 11/1/19944, 1415-58, 1464-68, 1488-93, and, pp. specifically, brought out the existence of the method of “ceiling principle” 11/1/1994, N.T., analysis samples, p. statistical of DNA 1415. Third, Appellant exploited counsel for variance examination, Similarly, during prosecutor brought direct out fact that some scientists criticized the statistical methods used N.T., 10/31/1994, laboratory. pp. FBI 1284-89. *50 probability analysis samples the DNA in his closing argu N.T., 11/8/1994, ment. 2239-40. pp. Accordingly, this ineffec argument tiveness fails.
b. Sam-Cali
appeal,
On
a
Appellant presents
number of claims
Sam-Cali,
to Denise
relating
who testified about her assault in
29, 1993,
the early morning hours of June
the subsequent
house,
break-ins at her
and Appellant’s apprehension.
Initial
he
ly,
argues that the trial court
in allowing
erred
Sam-Cali
testify, because this
prior
allowed evidence of
bad acts and
uncharged criminal conduct to be introduced to
jury.
Appellant maintains that Sam-Cali was not a
to any
witness
and,
charged
offenses
yet, provided “lurid and inflammato
ry” testimony, linking Appellant to these incidents. Brief for
Appellant,
p.
Appellant also claims that his counsel was
(1)
for failing
object
ineffective
to:
to this testimony; and
a
request
limiting instruction in relation to this evidence.
Initially, we note that Sam-Cali’s testimony is admissible
under the same principles supporting
joinder
of the three
homicides, i.e., to
the identity
establish
of the perpetrator, his
motive, intent,
a
Elliott,
common criminal scheme. See
Miller,
supra;
supra; Hughes,
Furthermore,
supra.
such
testimony would be allowed under the “res gestae” exception
to the rule against admission of
of prior
evidence
crimes. As
(Direct
explained
we
in Commonwealth v. Lark
Appeal), 518
Pa.290,
(1988),
Evidence of distinct crimes are not admissible a against defendant being prosecuted solely for another crime his show bad character and his propensity committing However, criminal acts. evidence of other crimes and/or may violent acts be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by him showing person to be of bad character.... [One such] special circumstance where evidence of other crimes may be relevant and admissible is where such evidence was part the chain or sequence of events which became part of the develop- natural formed part the case and
history of circumstance, sometimes special This ment of the facts. general exception res gestae to as the referred crimes, is also known of other evidence proscription against i.e., rationale, of other crimi- evidence story complete as the of the crime on story complete nal acts is admissible *51 near in context of happenings its immediate by trial proving place. time and omitted). In citations in internal original, at 497 (emphasis
Id. residence are case, at the Sam-Cali the incidents present the in question. the three homicides with intricately interwoven two place approximately took initial assault on Sam-Cali The testimony Fortney homicide Sam-Cali’s before weeks of story” Appellant’s jury “complete provided in of 1992 August homicide Burghardt from the spree criminal sum, the trial 1993. In as July of capture to Appellant’s merely not offered testimony was explained, court “Sam-Cali’s crimes to commit similar propensity [Appellant’s to indicate he charged, crimes how he committed these ... but to show the circum- them, them and he committed why committed 32. Opinion, p. Trial Court apprehension.” stances of his raised reject arguments. the ineffectiveness alsoWe First, substantive claim. in relation to this by Appellant on testimony sever objected to Sam-Cali’s counsel Appellant’s it because occasions, prejudicial, that it on the basis al perpe of crimes evidence other jury to consider allowed 1918-21, N.T., 11/3/1994, pp. See by Appellant. trated limiting for a did not ask Second, Appellant counsel for while such testimony, request in relation to Sam-Cali’s instruction best) (at redundant, that the appears as it have been would and, after required an asked if such instruction trial court fact, prosecutor, from the response affirmative receiving an limited of this evidence. purpose as to the jury instructed the 1919-21, The trial court N.T., 11/3/1994, 1965-66. pp. See of the limited use Sam-Cali’s jurors about cautioned again N.T., See the final instructions. during testimony 11/8/1994, 2279-2280. pp.
217 that, in Sam-Cali, argues also In relation 83, 83 373 U.S. Maryland, v. duty Brady under of its violation (1963), evi exculpatory to reveal L.Ed.2d 215 10 S.Ct. that, her during failed to disclose dence, the Commonwealth “told the Allentown police, Sam-Cali interviews with initial Rosado,” she whom ... was Saul that her assailant police Brief for one month. for about employed and previously knew p. 67. Appellant, (1) suppres- three elements: comprises
“A violation Brady (2) im- evidence, or exculpatory prosecution sion (3) defendant, to the prejudice favorable peaching, Pa. Paddy, v. defendant.” Commonwealth claim, (2002). Contrary Appellant’s Sam-Cali A.2d assailant, but named merely as her identify not Rosado did because Sam- police pursue, lead for the possible him as a her. a motive to harm that he have had thought might Cali Rosado, he about was interviewed police After told Sam-Cali beard, full having a suspect, as a because: and dismissed hair, tattoos, description did not match Rosado long *52 interviews; her initial during gave the assailant that Sam-Cali (2) after not her assailant said that Rosado was Sam-Cali not evidence could Simply put, at his this looking picture. been exculpatory. have
Moreover,
trial,
already
Appellant
to this
had
prior
burglary, aggravated
guilty multiple
(including
to
crimes
pled
homicide)
at
assault,
in relation to the incidents
attempted
According
July
residence in
of
the Sam-Cali
June
See, e.g.,
to
these crimes.
perpetrating
admitted
ly, Appellant
(1984)
551,
Additionally, light Journal,46 argues the Ladies’ Home that his counsel Appellant was ineffective because he failed to cross-examine Sam-Cali bias, incen regard any receipt “with financial of financial of other book magazine, any tives from existence [and] or Brief mentioned magazine Appellant, p. deals.” 70. As trial, earlier, prior Appellant pled guilty to slew charges concerning criminal the incidents at resi Sam-Cali’s Therefore, place dence took the summer of 1993. financial received irrespective any gain may Sam-Cali have Journal, given Appel from the article the Ladies’ Home admissions, not veracity testimony lant’s of her could have been undermined in the manner presently suggested Ap If pellant. anything, rigorous cross-examination of Sam-Cali on issue been counter-productive Appel this would have Hence, lant’s cause. this claim fails. ineffectiveness that a trial be Appellant argues also new should granted because the to introduce Commonwealth was allowed testimony concerning from Sam-Cali and officers police two noted, Appellant’s apprehension. guilty As we pled to the charges concerning episodes at Sam-Cali’s resi dence, As including surrounding apprehension. events his stated, have also these incidents an integral part we were the facts that the basis of convictions. provided Appellant’s Accordingly, this evidence was introduced and properly Appel *53 any lant is not entitled to relief.47 35, supra. 46. See also note more, jurors
47. Once we note that the trial the about court cautioned testimony concerning Appellant's apprehen- the limited nature of the and, testimony presented again, during sion at the time the was its final N.T., 11/3/1994, 1955-56; N.T., 11/8/1994, pp. pp. instructions. See 2279-80. Hypnosis
c. a number of in relation to the Appellant presents arguments of Denise hypnosis Stengel (Stengel), Sam-Cali James against during who testified him the trial. The substantive First, relating claims to these witnesses are similar. Appel- lant contends that his counsel by allowing was ineffective testimony these witnesses to be introduced without requirements the introduction of of a regarding testimony Second, hypnotized witness met. he that being alleges defense told that was never these witnesses were hypnotized. that, Finally, Appellant urges that by failing disclose Sam- Stengel Cali and hypnotized, were Commonwealth violated Brady, the dictates of supra. initially
We will address the pur Commonwealth’s ported hypnosis failure to disclose the at witnesses arrest, 4, 1993, Following August issue. his on a letter from notified Appellant Commonwealth that under Sam-Cali during went hypnosis investigation.48 Appellant signed N.T., 11/24/98, the letter and it.49 receiving admitted pp. 76- 77. As it relates to the hypnosis Stengel, during post- counsel, Marinelli, sentencing hearing, Appellant’s Carmen case, explicitly during testified pre-trial stages this N.T., he informed that Stengel hypnotized. 11/13/1998, facts, that, 36-37. it pp. Given these is clear prior trial, the Commonwealth indeed disclosed to the defense of its potential hypnotized two witnesses were and there Brady was no violation. above,
As in a explained related claim of counsel ineffectiveness, however, that, Appellant asserts even if this Court finds that the gave prior notice to the Lehigh County 48. The letter was sent to the Prison. signifi- claims that he did not understand the contents or and, accordingly, cance of the letter did not discuss it with his attor- N.T., 11/24/98, However, neys. pp. Appellant's 76-77. failure to counsel, alleged communicate this information to his due to an misun- derstanding importance, imputed of the letter’s cannot be to the Com- duty Brady monwealth’s under to disclose evidence favorable to the accused, because, alia, present they just inter in the case did that. *54 counsel ineffective concerning hypnosis, court his was
trial
that
the trial court follow
failing
request
require
“for
to
Smoyer require-
of the
with the balance
through
[so-called]
69.
Appellant, p.
ments.” Brief for
Smoyer,
v.
Although is witnesses, hypnotized during who were relation to are unable to conclude that investigation, we it that ground, appears relief on this because any entitled Initially, the trial Smoyer guidelines of the were satisfied. all prior calling Stengel that Sam-Cali transcript reveals stand, the court that these advised offering tape to submit hypnosis, underwent witnesses 10/31/1994, sessions. See N.T., pp. recordings hypnotic Thus, 1136-1145; 11/3/1994, believe N.T., 1963-64.50 we pp. in Smoyer guideline unambiguously satisfied that the first to both relation witnesses. Smoyer guideline, Appellant main-
In relation to the second after changed hypnosis, recollection tains Sam-Cali’s because, being able to remember thereafter was she only initial attack on 1993. during the June sexually assaulted objected Thus, that if his counsel would have Appellant implies (which not), testimony may he did Sam-Cali’s ground on this been precluded. have Court, Appellant, "[t]he contends that In his brief to this counsel Attorney hypnosis” of Sam- [c]ourt did not advise the District however, assertion, Appellant, p. is a false- Brief for 62. This Cali. hood, N.T., 11/3/1994, by transcript. plainly contradicted as it is pp. 1963-64. is, by Appellant made the assertion
Irrespective of whether nature of the attack fact, accurate, note that the sexual we evidence. independent, physical by confirmed on Sam-Cali was became Moreover, testimony, aware way of other night question. on the sexually assaulted Sam-Cali on Sam-Cali was Hence, nature of the attack the sexual *55 witnesses, established, by other related to the soundly Thus, if even we by Appellant. disputed could not be (as (1) by Appel- suggested ineffectiveness counsel assume: (2) of the trial court lant) part error on the in this or regard; of this un- the introduction Smoyer, in to adhere faffing harmless. testimony was still truthful equivocally guideline, Appellant Smoyer to the second respect With earlier, As related memory. in change Stengel’s a alleges Allentown, City of the of who employee an Stengel was Reservoir, of body the Charlotte at the where worked 9, Shortly after on June Schmoyer was discovered 9, 1993, a.m. he saw at the Reservoir at 6:25 on June arriving area, feet from approximately in the twelve parking a vehicle light as a Stengel car. Mr. described this vehicle his own blue, During side. damage right to its four-door sedan with stated that investigators, Stengel initial the his interview with N.T., 11/1/1994, pp. a “Dodge.” he the vehicle was thought 1495-13. interview, on the basis of this initial June
On Vance, P. a session with Oscar Jr. Stengel hypnotic underwent (Vance), Montgomery the Detective of the Coun- County Chief immediately However, before Attorney’s District Office. ty hypnosis, inter- undergoing Stengel extensively Mr. interview, a catalogue, this he shown During viewed. compiled Auto Theft Bureau that by the National published book, Stengel From this automobiles. pictures various he at the type a as the of vehicle saw Tempo identified Ford N.T., 9, 1993. morning on the of June See Reservoir 7/16/1998, 65-72. pp. testimony of several to undermine the
Appellant attempts identification, witnesses, timing who confirmed of the hypnot- that the identification was result suggesting ic are unconvinced by efforts—Stengel session. We these 9, 1993, recognized the vehicle he saw on as a Ford June Thus, to his Tempo, prior hypnosis.51 Appellant’s argument in fails its substance.
Turning Smoyer guideline, third Common to the trial court that hypno wealth revealed Detective Vance dispute tized both witnesses. Defense counsel did not however, “neutrality” hypnotist. Presently, while not attacking professional qualifications, Appellant his maintains (1) was not “neutral” because: he is a Detective Vance (2) officer; law enforcement his who offers services law clients; enforcement took question interviews place County the offices of the District Attor Montgomery ney’s Office. Romanelli,
In Commonwealth v.
It perhaps hypnotist employed by police true cannot, by virtue of his employment, give appearance *56 however, are, a being private practitioner. as neutral as We to formulate a se unwilling per police hypnotists rule that neutral, instead, are not prefer to examine the facts of but each case.
Id. at 1387 neutral he (finding hypnotist although worked issue). for the police department investigating the crime at unsubstantiated) Aside from bold Appellant’s (yet woefully bias, assertions of there is no evidence that Detective Vance Thus, not “neutral” to the or parties the issues involved. here, especially hypnotist, being where the aside from a enforcement community, member law is not related to investigating jurisdictional officers and is from a different territory altogether, presence we will not find the bias. Accordingly, we find that the third Smoyer guideline was that Appellant’s satisfied and claim of counsel ineffectiveness fails because the substantive claim lacks merit. Stengel correctly
51. We also note that identified the model and de- color, unique (e.g., damage) scribed other characteristics of the vehicle Appellant apprehended. more than a month before There is absolutely Appellant suspect no evidence that was even a at that time.
223 a Smoyer specification, despite As it relates to the last of the trial by prosecutor willingness request court, objected that defense counsel to appears explicitly it jurors in relation to the cautionary given instruction any fact, fact that In he did not want the Sam-Cali and hypnosis. hypnotized brought jury. the attention Stengel were cautionary no instruction in obliged gave The trial court counsel, the actions of defense cannot this Given we regard. any find that trial error occurred. claim,
Moreover,
regard
Appel-
to the ineffectiveness
the outcome of the
explain
proceedings
lant has failed
how
if trial
have been different
counsel had not refused the
would
not
cautionary
Accordingly, Appellant
instruction.
has
estab-
Pierce,
lished
under the Commonwealth v.
515 Pa.
prejudice
(1987),
153,
governing
d. Admission Appellant challenges a number of items of evidence physical by introduced the Commonwealth. will address them We kind.52 Photographs
i.
It
been a
principle
jurisprudence
has
steadfast
of our
of the victim are not
se
pictures
per
inadmissible. See
331,
763,
(1998),
King,
Commonwealth v.
554 Pa.
721 A.2d
denied,
1119,
942,
cert.
528 U.S.
120 S.Ct.
L.Ed.2d 473
1367,
denied,
959,
422,
1373,
502
112
587 A.2d
cert.
U.S.
S.Ct.
(1991). In
these
admissibility
225 597, McCutchen, 499 Pa. 454 v. (citing Id. Commonwealth (1982)). A.2d 549 in trial court erred contends that the
Presently, Appellant (1) showing Burghardt’s a allowing photograph into evidence: (2) police;53 it various in the was found body position scene; crime surrounding and the Schmoyer’s body of pictures (4) (3) area; neck and cheek Schmoyer’s a of photograph the sur Fortney’s body of photographs various- color (5) Sam-Cali, scene; showing crime of rounding photographs (6) 28, 1993; on her condition after the attack June his injuries by Appellant during of sustained photographs the introduction of these Appellant argues that apprehension. merely testimony cumulative of the adduced photographs was pictures effect of these out prejudicial at trial and that their weighed probative value. issue, at we
Having
photographs
reviewed
that the trial court abused its discretion
cannot conclude
evidentiary
outweighed any possi
that their
value
determining
correct
out
Appellant
pointing
ble
effect.
is
prejudicial
(1)
splatter
that:
the victims’ wounds and blood
were visible
(2)
pictures;
on some of the
several Commonwealth
testified as to the locations of the bodies and the
witnesses
note, however,
in question.
nature of the crime scenes
We
gruesome
that neither this
nor the
nature of the
testimony
impediment
admissibility
is an
pictures
photographs
See,
Marinetti,
e.g.,
of the homicide scene.
226 Pa. A.2d Gorby,
monwealth v. in allowing photographs, no abuse of discretion “which (finding on the neck as well as depicted large gaping gash victim’s hands, thirteen other knife wounds located on the victim’s *59 chest”); Chester, (finding at arms back and 587 A.2d 1373-74 abuse of discretion in of the victim’s allowing photographs no throat, evidence eye, injuries and other head as open slashed kill). of a intent to also note that the trial court specific We the limited the time that the to observe jury was allowed Opinion, p. See Trial Court pictures.
Further, adequately explained that the trial court we believe the for the introduction of these photographs: basis of not her face or photograph Burghardt did show
[A] the injuries, only positioning body police the when the collec- Schmoyer The of photographs arrived. showed logs body tion of and leaves used to cover her demonstrat- method, intent, murder. ing up the and thus the to cover the The of her back and of her sweatshirt photographs top part violent, her, again attack upon demonstrated torturous the intent of her assailant. The of reflecting photograph Schmoyer’s portrayed pattern injury cheek which was It caused-by later determined to have been sneaker. was conjunction testimony regarding used in with the footwear on the impressions compare pattern injury to reflected found photograph impression with the made the sneaker at home. A so that [Appellant’s photograph cropped of gaping Photographs neck wound was not observable. Fortney crime scene demonstrated the intent and malice kill of Finally, photographs used to her. Sam-Cali could again brutality demonstrated the of the assault which cases, compared brutality be used the other of these Fortney. photo- as to While none particularly view, role proper each of them had a graphs pleasant brutality the common play explaining intent to kill. he
Similarly, [Appellantj’s injuries when was photographs They neither nor irrelevant. apprehended prejudicial were cun- [AppellantJ’s bolstered the Commonwealth’s version ning making and resolve in his exit from the homes his victims. (internal omitted).
Trial Opinion, pp. Court 40-41 citation Audiotapes ii. also contends that the trial court errone
ously allowed the introduce various tape of 911 recordings telephone calls and police transmissions.54 observed, As the trial court these did not contain tapes any inflammatory exclamations, and, screams or impassioned while cumulative, they may have been somewhat certainly were not prejudicial. Opinion, See Trial Court p. We find no error in the way the trial court ruled on these issues. Videotapes
iii. Additionally, Appellant argues that the trial court erred in allowing present Commonwealth to a videotape of Schmoyer’s newspaper delivery route and a videotape of the *60 however, Schmoyer crime scene. Again, we find no abuse of instance, discretion in the trial court’s For rulings. the silent of the videotape newspaper delivery route was relevant to show the residential neighborhood from which Schmoyer was abducted, because it resembled the locale where each of the other homicides and the attacks on took place. Sam-Cali The of the crime videotape important, scene was it because showed the “blood by trails” left Appellant, injured who was during the attack. The samples taken from these “trails” later were used in the comparative analysis of DNA evidence. Appellant’s
iv. Evidence Removed from Residence Appellant also contends that the trial court erred in allowing the Commonwealth to physical introduce evidence relating to (1) Appellant specifically audiotape recording references: an of the Burghardt’s neighbor call that Depart- made to the Allentown Police 9, 1993; (2) August ment audiotape recordings on police trans- discovered; (3) Burghardt's body missions after audiotape was record- ings 9, by Department of the calls to and the Allentown Police on June 1993, Schmoyer's disappearance; in relation to audiotape and recordings Department Fortney’s to and the Allentown Police after body was discovered.
228 the extent of appears It
the assault on Sam-Cali. his assertion that the on this issue is argument Appellant’s unrelated to the homi- at residence were incidents Sam-Cali’s 88. Given that Appellant, p. See Brief question. cides finding this that these already rejected argument, we have story episode, of the criminal completed incidents claim fails as well. present Schmoyer Testimony
e.
of Karen
for the
testimony
her direct
as a witness
During
Karen,
mother,
to
Commonwealth,
was asked
Schmoyer’s
that her
was
daughter
after she learned
happened
recall what
panic”
herself as
into a
“[going]
Karen described
missing.
my
very dry
...
I remember
mouth was
“very
nervous
N.T., 10/26/1994,
663-64.
shaking.”
pp.
...
hands were
my
the trial court to have
contends it was error for
Appellant
Karen’s
testimony regarding
“feelings
permitted this
to be
learned her
was believed
daughter
she
thoughts” when
case.
it
not relevant or material
this
because was
missing,
regarding “feelings
testimony
such
presuming
Even
case,
this
not relevant or material to
thoughts”
not
the unavoidable effect
testimony
limited and did
have
See,
impartial
of a fair and
verdict.
Appellant
of depriving
Pa.
780 A.2d
Begley,
v.
e.g., Commonwealth
Weiss,
(2001);
v.
f. of Jean Vas Vas, to responded an who emergency paramedic, Jean discovery body, of the victim’s residence after Fortney “very, very gruesome, as brutal and described the crime scene N.T., 11/2/1994, deaths the years.” seen a lot of over I’ve testimony prejudi- that this was contends Appellant p. raise an failing counsel was ineffective cial and that his however, agree we with Again, to this statement. objection testimony in this was reasoning regard—the trial court Fortney at the of the crime scene long description of a part intent. to establish the element of necessary and was residence and the reason, reject argument the substantive For this we in relation by Appellant ineffectiveness claim raised counsel testimony. this Testimony
g.
Lt. Dennis
Steckel
of Lt. Dennis
testimony
contends that the
Appellant
(Steckel),
the Allen
employer
identified his
as
who
Steckel
Division, that he
familiar
Youth
was
Department
town Police
attended, and
school Appellant
knew what
Appellant,
1986,
in 1984 and
was prejudicial
resided
Appellant
where
Appellant
to infer that
had
because it would allow the
juvenile. Additionally,
a
activity
criminal
as
engaged
prior
failing
counsel
ineffective for
argues that his
Appellant
argument, Appel
In
of his
object
testimony.
support
to this
Groce,
15,
917,
452 Pa.
303 A.2d
v.
lant cites to Commonwealth
(1973),
denied,
Unlike
through the
performance
was familiar with
Steckel
files.
police
of his duties or that
name was
Appellant’s
akin to
circumstances more
Common-
present
We find
(1986),
[A] passing accrued to this witness’ reference appellant by dice as a officer. occupation parole to his *62 230
[*] [*] [*] occupation mention of the witness’ as a officer parole [T]he convey and the fact that he knew the did not appellant the jury, expressly implication, either or reasonable the fact of a criminal offense or record. an infer- prior Such ence, most not con- certainly certainly while possible, veyed jury by to the the mere mention of the witness’ occupation and the fact that he knew as there are appellant, variety an infinite that ways appellant might otherwise a a officer. person parole know who was Id. at in (emphasis original). analysis equally 534-35 This matter, to the that the mere applicable instant as we believe employment conjunction reference to the in his witness’ with familiarity convey jury did not that Appellant had a criminal Appellant prior juvenile. record as a See Carpenter, supra; Riggins, Commonwealth v. (1978) (To
A.2d conclude that had commit- appellant prior ted crimes from a detective’s that he single statement lived, knew where the appellant jury indulge would have Therefore, gross speculation). reject we the claims has asserted in reference to the Lt. testimony of Steckel. Testimony
h. of Latanio Fraticeli trial, At one the considered point during calling as a an Latanio Fraticeli eight-year-old girl, witness (Fraticeli). testified, however, judge, Before she the trial witness, revealing identity without called for a recess, in the explaining presence that he wanted first, “to talk to girl the little a little bit see if I can her at put 11/2/1994, N.T., ease a little bit. very shy.” p. She is Thereafter, held, separate proceeding pro- where spective gave specific testimony witness identification that implicated Appellant person would have as the who entered the Fortney night Ultimately, home the of the homicide. witness, Commonwealth decided not to call Fraticeli as its see N.T., 11/2/1994, 1810-1811, pp. parties agreed jury any best course of action would be not to offer the called, jurors for Fraticeli not been and the explanation having dismissed for the The next day. day, were an article appeared newspaper about Fraticeli and her during statements the hearing. jurors Defense counsel requested be exam *63 any ined as to whether of them had the read article. The trial refused, but, court before the start of the proceedings, cau tioned jurors the about from staying away the media coverage of the case.55
Presently, Appellant asserts that the explanation for the recess, given by court, the trial unfair, was unnecessary and “because it ... speculation invite[d] as to what the witness may have said ... drawing the focus away from what ... being said from the witness stand.” Brief for Appellant, p. 89 Thus, in (emphasis original). Appellant argues that the trial Further, court erred in regard. this Appellant contends that warranted, a trial new because the trial court erred in to refusing inquire jurors whether the read the newspaper article concerning Fraticeli.
Although the trial court’s statement may have been
unnecessary, we cannot conclude that Appellant
preju
diced—the remark did not reveal the substance of the witness’
testimony, such as her identification of Appellant, and provid
ed an acceptable explanation for the brief
intermission
the
proceedings. We are also
persuaded
not
that
this passing
statement
the jury’s
drew
away
focus
from
considering
evidence and testimony actually presented by the parties.
is also not entitled to relief
regard
the trial court’s refusal
to question jurors about their knowl
edge of the newspaper
Bruno,
In
Commonwealth v.
article.
(1976),
The procedure highly when prejudicial material is publicized during the trial and the jury is not sequestered is to question jurors individually, out of the presence of the jurors. However, other jurors questioning as a group or N.T., 11/3/1994, 55. p. 1828. be sufficient may instructions
giving special precautionary on the facts of case. precaution depending particular (internal omitted). at 52 citations Id. jurors during
The instructed voir dire individually were trial, day of the the first of the coverage avoid media case. On from jurors keep away trial again court reminded if them to reveal coverage the media trial and invited 10/24/1994, N.T., p. already such occurred. See any exposure his initial judge repeated warning during 24.56 The trial its N.T., 10/24/1994, Moreover, the pp. 32-33. address. See cautionary after the morning trial court instruction gave its earlier published, reiterating article about Fraticeli was instructing jurors they required were statements upon the facts of case based the evidence to determine heard the course the trial. See testimony they during N.T., 11/3/1994, that the trial Accordingly, we find p. *64 to voir entirely refusing court acted within its discretion jurors, inadvertently jury the avoiding notifying dire the thus article, a giving precau the contents of the and sufficient of trial. Also tionary integrity instruction to secure the of the 18, 22-23 Crispell, v. A.2d see Commonwealth (1992). Penalty
3. Phase Mitigation a. Evidence failing that trial counsel ineffective for Appellant argues of the mitigation during penalty phase to introduce evidence support argument, during post- In of his the proceedings. the sentencing Appellant testimony the of sev hearing, presented witnesses, maintains have testified Appellant eral who could penalty phase.57 alleges his the during Appellant on behalf trial the he their names to his counsel or provided that prompted day on 56. We note that the trial court’s instruction that by publishing newspaper about the trial the of an article in the local N.T., 10/24/1994, concerning p. 22. report and a TV DNA evidence. See names, alleges he Appellant that each of the witnesses good ... the [his] have would have testified to character [C]ould disturbance, fact that from extreme mental or emotional suffered [he] type prone that never been ... to the of violence shown. had [he] by way simple of discoverable easily identity was witness’ forty over Appellant presented Additionally, investigation. during the used claims could have been that he exhibits that, this evi- collectively, argues phase.58 Appellant penalty “catch all” of the presence the have established dence would . 9711(e)(8) that (stating § factor. See Pa.C.S. mitigating [a]ny ... other evi include circumstances shall “mitigating of the character and record concerning the mitigation of dence offense”). his the circumstances of defendant and merit. argument without Appellant’s find that We homicide, Fortney to the relation sentencing Appellant In environment,” “use “family background found the circum mitigating as history,” and “school drugs,” alcohol and Sheet, 3. Because Sentencing p. Verdict Fortney stances. See in 42 mitigators as not set forth explicitly these factors are “catch all” 9711(e), provision fall the they § within Pa.C.S. defense, 9711(e)(8). Hence, § in 42 Pa.C.S. articulated factor. fact, mitigating of this We presence established achieving exactly what trial counsel ineffective cannot find do—establishing they failed alleges mitigator. Consequently, “catch all” existence of the fails. presented by Appellant argument Photographs b. deliberation, jury requested phase their
During penalty that were introduced victims pictures see N.T., proceedings.59 during phase Further, have witnesses could and would testified these same which extremely upbringing [Appellant], and the extent to difficult addicted, him and disabl- [Appellant's father caused severe abusive *65 have testi- ing These same witnesses could emotional disturbance. step-father, defendant had a close [Appellant’s with whom fied that family, nurturing relationship, [Appellant] and his as abandoned [Appellant] suffered further emotional disturbance. a result of which Appellant, p. Brief for 22. merit part, the exhibits are academic and athletic 58. For the most placement juvenile while in at various certificates received facilities. pictures jurors view these for ten seconds 59. The were allowed to presentation penalty phase its case-in- during the of Commonwealth’s N.T., 11/10/1994, pp. chief. 2561-62. 234
11/10/1994,p. Ultimately, objection 2772. an by Appel- over counsel, jurors lant’s the trial court allowed to view these courtroom, on an images, displayed easel but for “no N.T., 11/10/1994, 2772, more than 30 seconds.” pp. 2778. Appellant contends that the trial court erred in allow ing jurors access to the their pictures during victims’ the probative images deliberations because value of these was Further, outweighed by prejudice. their although Appellant concedes that of photographs Burghardt Schmoyer were relevant to the issue of the of “tor aggravating circumstance ture,” 9711(d)(8), § 42 see Pa.C.S. he also that Fort argues irrelevant, ney’s were since “torture” not an photos aggravating circumstance in that case. Brief presented See Appellant, p.
Instantly, as
by Appellant, images
Burghardt
admitted
Schmoyer
clearly
aggrava
were
relevant to establish the
Furthermore,
ting
circumstance of “torture.”
as explained
court,
the trial
images
Fortney were admissible to show the
aggravator;
existence of another
that the
namely,
murder was
committed
in the
42
perpetration
felony,”
“while
of a
Pa.C.S.
9711(d)(6).
N.T., 11/10/1994,
§
See
pp.
Having
2779-80.60
independently
photographs,
reviewed
we find no error on
of the trial court in
part
acquiescing
jury’s request.
Brown,
272,
961,
See Commonwealth v.
567 Pa.
A.2d
(2001) (finding
approximately
that
life-size
slides
victim
“highly probative
unnecessary
were
intent to inflict
[the]
or
and that
pain
suffering
killing was
in manner
[the
done]
heinous, atrocious,
cruel,
or means that are
or
or show excep
denied,
1187,
1351,
tional
cert.
depravity”),
537 U.S.
123 S.Ct.
(2003);
c. of Robert Burns The defense began penalty its phase presentation on No 9, However, vember 1994. because the last three defense witnesses, (Burns), including Robert Burns principal St. Hall, Gabriel’s placed juvenile where was as a on prior charges, secretary and a from that facility, out of were and subpoenaed town for the day,61 next the proceedings (at early ended approximately 4:00 pm) were continued to N.T., 11/10/1994, November 1994. pp. 2630-31. On that a.m., at day, starting around 9:30 the defense resumed its case N.T., with the testimony 11/10/1994, William Mocriski. pp. 2641-45. His testimony lasted approximately ten minutes and, conclusion, at its Appellant’s counsel informed the trial court that the next witness—Burns—would not be arriving until N.T., 10:15 a.m. or 10:30 11/10/1994, a.m. pp. 2649- Later, 2651. Appellant’s counsel acknowledged that this wit ness was originally subpoenaed N.T., for 9:00 11/10/1994, a.m. pp. 2651-52. He also related that Burns and the secretary Hall, from St. Gabriel’s who apparently traveling with Burns, were the last witnesses to testify on behalf of Appel N.T., 11/10/1994, lant. pp. 2650-52. The trial court called for a thirty-minute recess and the was taken out of the N.T., courtroom at 11/10/1994, 9:44 a.m. p. 2653. a.m.,
At 10:23 Appellant’s counsel informed the trial court (1) that: Brown, Barbara mother, Appellant’s agreed to testify defense; for the Burns and the from secretary St. Gabriel’s Hall would be called to the witness stand after her N.T., 11/10/1994, testimony. p. 2676. The testimony of Bar- bara Brown concluded N.T., at around 10:45 11/10/1994, a.m. p. However, 2695. time, one although of Appellant’s counsels went to find Mr. Burns and from secretary St. Hall, Gabriel’s they were still present not in the courtroom. a.m., appears 61. It subpoenaed Burns was for 9:00 November secretary, Hall, The 1994. who worked at the St. coming Gabriel's N.T., 11/10/1994, voluntarily. p. 2698. re- 11/10/1994, At that the trial court N.T., point, p. proof make an offer of as that defense counsel quested did, identifying he testimony, which expected substance of *67 on would reflect testimony that their stating the and witnesses at Ga- development and St. personal academic Appellant’s N.T., 11/10/1994, prosecutor The 2696-98. pp. briel’s Hall. that there out testimony, pointing to this stipulate refused to Appellant’s prog- as to the extent of evidence conflicting 11/10/1994, N.T., 2698. p. facility. ress at that to retrieve a.m., who went Appellant, 10:50 counsel By stated that witnesses, to the courtroom and returned the two N.T., 11/10/1994, p. 2700. The court not arrive. they still did a.m., oppor- defense another giving 11:00 the then until waited remaining and the two witnesses. present to locate tunity time, 11/10/1994, because the N.T., 2704-05. At that pp. located, objections by could not be over several still witnesses counsel, parties to the trial court ordered Appellant’s to the the cause argument, explained oral proceed with the expected them a brief gave synopsis delay, . and the sought present prosecu- defense to testimony that the N.T., 11/10/1994, 2699, testimony. pp. that tor’s rebuttal to the trial court admon- jury charge, Following 2703-06. counsel, at Burns, who, arrived according Appellant’s to ished pay ordered him to a.m., contempt, Burns in 11:00 found 11/10/1994, N.T., pp. 2770-71. in the amount of fine $500.00. that sentence must be argues his Presently, Appellant to “unjustifiably” grant trial court refused vacated' because argues He also testify.62 to Burns to a continuance allow to obtain such continu failing ineffective for his counsel was ance. of a for a continuance request
“The or refusal grant court, trial discretion of the a matter the sound vested decision, not be reversed deny request, or will grant its abuse of that in the absence of an an court appellate argument respect Appellant make a similar 62. does not N.T., Hall, Mr. Burns. secretary who arrived with from St. Gabriel's 8/26/1999, p.
287 587, A.2d Pa. 650 Birdsong, v. 538 Commonwealth authority.” to determine (1994). to be considered The factors 26, 34 exercised are: properly court’s discretion was the trial whether the defendant’s (1) strengthen of the witness necessity defense; (2) of the to defendant’s case; essentiality witness (4) trial; at (3) presence his procure exercised diligence the likelihood testify; and he would the facts to which 34; id. at next term of court. See at the produced he could be 385, A.2d 395 Pa. 532 v. 516 Clayton, Commonwealth 99 L.Ed.2d denied, 108 (1987), 485 U.S. S.Ct. cert. Pa.265, (Eddie) Smith, 442 (1988); v. (1971). 98, 101 A.2d ap scheduled to that Burns “was acknowledges delayed.in his day, but was as the first witness
pear Al (emphasis supplied). Appellant, p. Brief for arrival.” *68 the true extent of as to conflicting there is evidence though absence,63 inexcus thing one is clear—Burns was the witness’ in jeopardy. a man’s life stood late for a trial where ably hand, forth to the facts at we the criteria set above Applying an abuse trial court’s actions constituted find that the cannot judicial of discretion. in that Burns not an essential witness
Initially, we note was familiarity only testify Appellant about his with that he could juvenile facility. Again, at a howev- stay a nine-month during er, the of the “catch all” ultimately presence the found jury Therefore, re- testimony would have been mitigator. Burns’ Moreover, testimony it that the of highly dundant. doubtful fact, In it is case. strengthened Appellant’s Burns would have engendered opposite that it have likely more than would during post-sentencing proceed- effect. As demonstrated testify experiences could about his with ings, although Burns Hall, Burns was he was at St. Gabriel’s placed while a.m., subpoenaed appear appears although he was to at 9:00 63. It that during telephone a conversation on November on November 9, 1994, Appellant's counsel that he would not Burns informed trial N.T., 11/10/1994, pp. a.m. to 10:30 a.m. arrive until 10:10 However, actually 11:00 did not arrive until some time at or after Bums Therefore, equally arguable he late as much as two a.m. it is that was thirty as minutes. hours and as little thus particulars Appellant’s stay not aware of the and was as a More easily importantly, undermined witness.64 of Burns testimony would have allowed juvenile introduce evidence damning concerning Appellant’s at Hall. the trial court placement St. Gabriel’s As observed: records at Hall reflect that [Appellant’s St. Gabriel’s [T]he a adjustment poor great initial and “there has not been then, ... deal of since to staff he is improvement according usually His rela- manipulative cooperate. peer slow addition, are In tionships typically unsatisfactory.” [Appel- institution, from the a member’s absconded stole staff lant] it, variety in and violated a of rules and wallet $200.00 regulations.
Trial the trial Opinion, pp. Court 56-57. We observe way court out of its in time to the repeatedly giving went and, ultimately, defense to find its last two witnesses when the located, not gave synopsis witnesses could be hand, their at testimony. Ultimately, given circumstances trial, such as the the fact that Burns the last length n witnessto lateness, testify, and his unexcused find that the we judicial trial court’s action did not constitute an abuse of similarly reject Appellant’s discretion. We claim that his continuance, failing light counsel was ineffective to seek transcript everything indicates that counsel did could to secure the they testimony of Burns. Testily
d. Failure that his trial counsel ineffec Appellant argues were *69 tive for to call him as a failing during penalty witness phase proceedings. correctly points As the Commonwealth out, however, this un argument blatantly ignores Appellant’s equivocal testify, refusal to which he articulated to his attor- acknowledged example, Appellant escaped 64. For Burns from St. clothing during stay facility Gabriel's Hall his at that and stole from N.T., 8/26/1999, pp. Although principal others. 21-22. he was the at Hall, Appellant’s St. not aware of the Gabriel's Burns was reasons there, placement prior background, his criminal did not know whether release, Appellant "actually improved” by the time and never of his any reports. read of the counselors' Id. at 22-24. attempts justify at trial and now to as a misunderstand- neys (which also blames on ing rights of his constitutional counsel). his direct
During post-sentencing hearing, on examination attorney, Appellant’s one of trial coun- by Appellant’s present Marinelli, sels, as Carmen testified follows: trial, sir, In the mitigation phase Defense Counsel: any either or Mr. Burke have discussions you did with in that testify portion as to whether he should [Appellant] the case?
Attorney many [Ap- Marinelli: We had conversations with mitigation guilt In the and also pellant]. phase phase, [Appellant] absolutely, positively innocence refused occasions, testify. many [Appellant] to On did not even wish to talk to us.
[*] [*] [*] you give any Defense Did Okay. [Appellant] Counsel: regard' advice to whether he should or should not with testify?
Attorney our, phases Marinelli: both it I don’t During almost the man to say request, pleaded want we All he could do to him. He refused to testify. help testify. N.T., 11/13/1998, Later, 60-61. he called to pp. testify by previous the Commonwealth and reaffirmed his statements: you please Prosecutor: let us know what efforts [W]ould you get [Appellant] testify made to on his own behalf? Attorney occasions, pleaded. many Marinelli: On Begged, Burke and alone him the myself only we were—Mr. told innocence, way winning he has chance of any guilt testify. or not the death is for him to The having penalty, to hear from the defendant. people want him Okay. you explain people Prosecutor: Did want him deny to hear this?
Attorney Yes, Marinelli: absolutely. *70 him, either for the or guilt Did ever tell you
Prosecutor: testified, if he his innocence, penalty phase, or for come out? definitely record prior would No, Attorney it come definitely Marinelli: whether would not, know, in to because we would nobody going out or record. It objected any prior to reference have his decision. You Judge for the to make would have been I know, much to do—As far as prior his record didn’t have concerned, the record didn’t have much to do with prior was he tried for. What we being the three homicides was here; him on get up get to is wanted to have wanted do we them, stand; eye look the and tell the witness no, this, Mr. they wrong person. I not do have the did occasions, Robinson, refused to do this. many on 10-11; N.T., 9/10/1999, N.T., 9/10/1999, 25. The p. see also pp. counsel, Burke, primarily responsi- trial who was other James testi- during penalty phase, the defense preparing ble in a similar fashion: fied you Let’s start Did Okay. [Appellant].
Prosecutor: him the stand in importance taking him the discuss with the case? penalty phase Attorney I him. begged Burke: to response you? Prosecutor: And what was his Attorney I appeal, Burke: He was obsessed with his after he testify did not him that he had to upon voice right to into the preparing go convicted and we were I talked to him before that about what phase. long penalty in the that he found going he was to have do event case, in his cases. He didn’t care. guilty this
* % * him you attempt explain impor- Prosecutor: Did testimony? tance of his
Attorney Burke: We did. testimony Did let him that the-his you
Prosecutor: know it? pleading be exclusive to for his life and that was would Attorney penalty phase, absolutely. Burke: In the that he didn’t today testified Okay. [Appellant] Prosecutor: that correct? could be limited. Is testimony that his know *71 Attorney penalty phase? Burke: In the Prosecutor: Um-hum.
Attorney No, not correct. As a matter Burke: that’s fact, these It’s not things. denied that he had done he had crimes underlying the person uncommon for the who denies of, tell them jury to sit before the and they are convicted that, I “I didn’t do this. want made a horrible mistake they ... He could have your mercy.” I your sympathy. want the offenses. deny continued to your strategy?
Prosecutor: And was that Attorney to ... Burke: Of course. He didn’t have that he you explain [Appellant] Did could Prosecutor: “Look, you’ve made a terrible say jury, continue mistake, spare my but life”? please Attorney Burke: and he have to answer Right, wouldn’t just if he “I regarding say, ... the offenses could questions did not do that.” N.T., 11/13/1998, 26;
N.T., 11/24/1998, 193-95; p. see also pp. N.T., 11/24/1998, 200, 203-04. pp. self-serving no reason to our faith in put Appellant’s
We see his and fully rights that he did not understand proclamations the the of his trial counsel. Given testimony disbelieve two above, ineffec- testimony reject cited we this claim counsel tiveness.
e. Torture in relation to the Appellant multiple raises issues killings Burghardt that and jury’s determination “tor aggravating circumstance of Schmoyer implicated 9711(d)(8).65 ture,” § not address these 42 Pa.C.S. We will (1) Appellant contends that: there was insufficient evidence for the aggravator homi- jury to find the existence of this in relation .to both cides; "irrelevant, unreliable, (2) presented and the evidence foundation;" jury charge proper in relation to this lacked aggravator "inadequate incomplete.” Appellant, pp. Brief 114-129. moot, fact them in light because we consider arguments, the trial in those cases vacated sentences were capital court on an unrelated basis.66 Aggravating
f. References to Circumstance 9711(d)(ll) § 42 Pa.C.S. phase throughout penalty that Appellant alleges court, defense trial and both proceedings, prosecutor, aggravator expressed referred to the attorneys incorrectly 9711(d)(ll), “multiple victim” or “multiple § as Pa.C.S. maintains circumstance. killings” aggravating lessened the “actually confused the these misnomers p. Brief for Appellant, burden of the Commonwealth.” egregious argues very He (emphasis original). “[t]his three sentences of that all statutory requires ‘misconstruction’ *72 death be vacated.” Id. capital that of the three sentences again
We note two Therefore, been we imposed by the trial court have vacated. to be in relation to these sentences consider issues asserted hand, and, at consider arguments moot in connection with will in the the death sentence only relating remaining claims Fortney case. seq., et Code, sets forth §§ 42 Sentencing
The Pa.C.S. in that consider jury may the circumstances the aggravating of these punishment. aggravators One imposing capital articulated as follows: murder com-
The defendant has been convicted another or at jurisdiction in and committed either before any mitted time the offense at issue. the 9711(d)(ll). in out pointing § is correct Appellant 42 Pa.C.S. that, trial, killings” “multiple “multiple the victims” or during alleged in Appellant the errors he articulated also maintains Schmoyer aggravator Burghardt and relation to the "torture" the "necessarily jury’s Fort- [the] infected the deliberations homicides ney" Appellant, p. 129 n. 26. Without even consid- homicide. Brief for errors, purported that "torture” was ering the of these we note merits Therefore, Fortney we aggravator presented in the homicide. not an claim, espe- by Appellant’s wholly persuaded are not unsubstantiated in which cially given clear instruction as to what cases the trial court's aggravator. jury the was to consider this aggrava- as a shorthand for this all by participants was used However, not erroneous and find that this was tor. we in this regard. not Appellant prejudiced the establish The offenses introduced Commonwealth Fortney in relation to the aggravator of this presence the All Burghardt Schmoyer. the murders of and homicide were jointly Burghardt, Schmoyer, tried three homicides were during to as routinely were referred “victims” Fortney, because, Hence, trial, quite simply, they were victims. to unrelated crimes jury astray by was not led references Rather, to refer to by Appellant. they committed were asked they the victims of the crimes concerning evidence were trial, of this adjudicating. Accordingly, within confines aggravating the crimes this given presented prove being simultaneously, circumstance were tried we see no error 9711(d)(ll) § parties referenced Pa.C.S. as when “multiple aggravator. victims”
Similarly, see no error when the term “multiple we 9711(d)(ll). § used in relation to Pa.C.S. killings” was found that During guilt phase proceedings, killed three The asked the women. jurors determinations—namely, to consider these that Appel murdering Burghardt Schmoy lant was responsible finding aggravator er—in the existence of the set forth in 42 9711(d)(ll) § it Fortney Pa.C.S. as related to the homicide. There no error.
Moreover, in rejecting Appellant’s contention that the proof by Commonwealth’s burden of lessened somehow references, court, these out that trial simply point we on occasions, jury instructed the as to the burden of multiple See, N.T., by carried proof e.g., Commonwealth. 11/10/1994, 2739, 2744, 2746. These instructions could not pp. any presume have been clearer and we are bound to that the Baker, jurors followed them.67 Commonwealth v. See error, reject Appellant’s 67. Given that we substantive assertions of his arguments multiple related to counsel ineffectiveness claims these also fail. (1992) (“The our is presumption 614 A.2d law court]”); instructions the trial jury that the has followed [of Freeman, at 827 A.2d 9711(d)(ll) §
g. Jury Charge in Relation to 42 Pa.C.S. trial argues improperly also that the court to the embodied in jury aggravator instructed the relation 9711(d)(ll). gave the trial court Initially, § 42 Pa.C.S. following instruction: are
I over the evidence with counsel and these gone have I circumstances which aggravating mitigating in this charge you applicable are case. but these are the ones that I long
The list is under law in your particular found are relevant and material have few, there are sometimes there are more. case. Sometimes here, the circum- you following aggravating But will see proven by and must be stances are submitted beyond a reasonable doubt.... actual in the statute is Multiple killings. language The agreed multiple killings But we’ve complicated. that, than the actual simple, just say language. more If aggravating killing That is an factor. one occurred with others, an factor. aggravating that’s to be considered And three this defen- you’ve happened since found murders dant, prove I think that that would also have been would beyond a reasonable doubt. Later,
N.T., 11/10/1994, 2745-46. after a sidebar confer- pp. counsel, following: ence the court stated the me to have in the Counsel have asked read—what we I think I had slip you verdict is a shorthand version. told the actual of the Act. language this isn’t safe, language To be me to read the actual they want aggravating circumstances.
[*] [*] [*] one, In that just multiple killings. In down multiple—I put of another murder com- the defendant has been convicted *74 or at the time of the offense at issue. mitted either before are of the precise Those words law. find,
Now, you I also indicated should because heard, [referring numbers one and two you evidence 9711(d)(6) § and 42 42 Pa.C.S. Pa.C.S. aggravators 9711(d)(ll)]. § I can’t to do That’s really you direct that. your finding to make. or not your multiple killings
You’re on own as whether perpetrating felony are a factor and are a factor. while into account consideration found you’ve already Take what you but I can’t direct to find that. 11/10/1994,
N.T., 2760-62.68 pp. convictions relation to the
Presently, Appellant’s homicides considered Burghardt Schmoyer properly were purposes establishing the Pa.C.S. 9711(d)(ll) homicide, § in relation to the Fortney because Fortney these the murder. the preceded murders While given by improperly initial instruction court directed jurors aggravator, subsequent, to find the of this presence account of the provided curative statement the correct law instruction as erroneous. As previous explained retracted jurors are bound to that the presume we followed previously, Baker, Freeman, supra; supra. the curative instruction. See Hence, is not entitled to relief on this claim. Appellant Question Response Jury
h. to a At point during charge, following one ex took the trial court and one of the change place between jurors: just the life in is that so prison, parole,
Juror: On without are sure? there be a chance of if it parole we Would life in prison? that, Court, Again, compelled brief we feel to note his to this part of the does not mention or cite the last curative instruc- given by jury's finding tion the trial court that related the task of presence aggravating circumstances. guarantee—that’s I I can Trial Court: don’t see how *75 if the law? legislature changes But what the present law. way that. That’s the the law is now. guarantee I can’t know, Your Honor. Juror: Just so we if they’ll Trial from now years Court: Who knows two you. the I can’t tell change law.
N.T., 11/10/1994, At the point, prosecutor 2767-68. pp. At the conclusion of the a sidebar conference. requested discussion, following trial the the answer: gave jury the court accurate, life.’ There won’t you, “I am to tell and it’s ‘Life is N.T., 11/10/1994, Life life.” 2769. any parole. p. be is trial court failed argues that the Presently, Appellant if parole Appellant that there no of possibility mention Thus, maintains that Appellant a life sentence. would receive and the trial court by the confused the instructions jury was an an misunderstanding by giving further their compounded include the imprisonment” may possi indicative that “life swer that “not contends bility parole.69 Ultimately, Appellant of instructions that a jury during sentencing the informing of parole life possibility life sentence means without decency that underlie” the evolving fends the standards Appellant, p. Brief for Pennsylvania U.S. and Constitutions. 143. the trial court
Essentially,
contention is
Appellant’s
the instruction
jury
pursuant
should have
provided
Carolina,
2187,
v.
154,
129
Simmons South
512
114 S.Ct.
U.S.
(1994),
a
133
that a “life sentence” means “life without
L.Ed.2d
However,
repeatedly
as this Court has
possibility
parole.”
held,
Simmons
required only
“a
instruction is
where
alleges
by
juror indicated
Appellant
question
69.
that the
asked
also
therefore,
and,
deliberating
yet
prematurely
another
that the
p.
purported impropriety
Appellant,
138 n.
was at hand. See Brief
contention,
v.
support
In
of
418,
cites Commonwealth
31.
this
(1985).
Kerpan,
Kerpan,
But
where the trial
508 Pa.
247
makes the future
of the defendant
prosecution
dangerousness
specifically
an issue
the case and the defendant
requests
such an instruction.” Commonwealth v.
574 Pa.
Champney,
435,
403,
(2003);
832 A.2d
417
see also Commonwealth v.
Robinson,
293,
344,
(1998),
denied,
554 Pa.
721 A.2d
cert.
(2000).70
1082,
804,
Here,
528 U.S.
120 S.Ct.
itAs relates to the statement made the trial court by juror, it response question posed is similar to Clark, this faced in what Court Commonwealth v. (1998), denied,
i. of the Death Statute
Appellant contends that his counsel was ineffective for
to
to bar the
failing move
Commonwealth from
seeking
in
penalty
death
this case
to
pursuant
provisions
various
U.S. and Pennsylvania
Initially, Appellant
Constitutions.
consistently
70. We note that
expressed
some Justices on this Court have
they
require
the view that
would
a Simmons
in
instruction
all cases.
See,
Robinson,
C.J.,
J.,
e.g.,
supra (Flaherty,
dissenting; Zappala,
con-
J.,
curring; Nigro,
concurring).
Clark,
case,
Appellant attempts
distinguish
present
71.
to
because in the
response
jury question
"the trial court’s comments were in
ato
and not
arguments
Appellant, p.
result of counsels’
Brief for
[as
Clark].”
Clark,
141.
differentiation
This
is devoid of merit. See
The claims raised previously §§ et have been seq., of 42 Pa.C.S. ality refer simply Appellant this We by addressed Court. since we first found of decisions issued this Court multitude in Zettlemoyer, supra, to be constitutional present statute Appellant essentially identical what rejecting arguments reason, claim of Appellant’s For this we find raises now. fails, argu- the substantive ineffectiveness because counsel lacked merit. presented counsel could have ments that his Misconduct 4. Prosecutorial that the made a number of prosecutor maintains *77 statement, guilt the the during opening comments improper summation, summation. Addi- penalty phase and the phase a number of counsel ineffectiveness asserts tionally, Appellant improper to these failing object purportedly for claims comments. there is a reasonable long has held as as
“Our Court comments, permit vigorous for the we will basis in the record Miles, 545 Pa. Commonwealth advocacy.” prosecutorial v. denied, 1187, 1295, (1996), 520 500, 1302 cert. U.S. 681 A.2d (1997). See, 1472, id. at 1301- e.g., L.Ed.2d 684 137 117 S.Ct. prosecutor analogize it for the (finding proper 03 that was
249
animals and
behavior of
hunting
actions
defendants’
descrip
crime
this
supported
the account of the
where
prey,
(William) Johnson,
Pa.384,
542
668
tion);
v.
Commonwealth
(1995)
because of
97, 106-07
(finding no basis mistrial
A.2d
as “henchmen”
description
defendants
prosecutor’s
the
inferences
reference
“based on the reasonable
this
where
denied,
827,
evidence”),
519
117
the
cert.
U.S.
drawn from
Jones,
(1996);
530
90,
v.
A.2d “clever, calculating cunning as a ization of defendant defendant so that unavoidably prejudice executioner” did not a properly not the and render jury weigh could evidence verdict). true in must be considered prosecutor comments
“Challenged
King,
made.”
[A] if only error exists logical vigor. force and Reversible destroy prosecutor deliberately attempted has effect objectivity of the fact finder such that the unavoidable be to create such bias inappropriate comments would that the not hostility toward the defendant could enter a true verdict.
Miles,
1300;
at 316.
Paddy,
681 A.2d at
also see
A.2d
“Furthermore,
where the
during
penalty phase,
presump-
no
longer applicable,
prosecutor
tion of innocence is
greater
presenting argument.”
even
latitude
permitted
King,
Moreover,
if
alleged
prosecutor
even
statements
every
been
have held
“not
may
improper,
have
we
a
by prosecutor requires
or uncalled for remark
intemperate
*78
250
Indeed,
Miles,
new overwhelming is so guilt admitted evidence of properly by compar- insignificant effect of the error is so prejudicial that the error a reasonable doubt beyond that it is clear ison verdict, the error is then could not contributed have (citing Id. Common- beyond a reasonable doubt.” harmless (1978)). With Pa. 383 A.2d Story, wealth v. mind, arguments examine the specific standard in we now this by Appellant. raised
a. Guilt Phase Opening i. Statement state during opening his Appellant complains as a referred to jury, prosecutor ment to the N.T., 10/24/1994, 57, not “to and asked p. “predator,” here, of the ferocity lose of the what was involved sight kill,” N.T., 10/24/1994, violence, p. of the intent to Dictionary International defines The Third New Webster’s alia, as, destroys, or de- prays, inter “one that “predator” alia, to, as, practic- or “relating inter “predatory” vours” using robbery or violence or ing plunder, pillage, rapine[;] destructive, harmful, injurious.” aggrandizement^] Webster’s Language Dictionary English International Third New entirely are consistent 1785. These definitions Unabridged, p. portrayed Appellant way Commonwealth attacker, the East Allentown jury—a calculating prowled who area, ferocity. and killed his victims with vicious
Moreover, prosecu- perpetrator, the intent of the which that the is an essential element emphasized, tor’s statement first-degree to establish murder. prove must 2502(a) degree” “murder of the first (defining § See 18 Pa.C.S. criminal ... an intentional as homicide committed “[a] 2501(a) § supplied); also see 18 Pa.C.S. killing”) (emphasis if he of criminal homicide guilty (stating person “[a] intentionally, causes the knowingly, recklessly negligently or Thus, it being”) (emphasis supplied). death of another human jury’s to focus the prosecutor for the entirely appropriate aspect attention on this of the case. *79 above, that believe these statements were
As reflected we by of the the Common- presented the context evidence within Therefore, part finds no misconduct on the this Court wealth. claim that his counsel rejects Appellant’s and prosecutor of the object to these comments. failing ineffective for was Closing ii. Statement that the argues prosecutor’s guilt phase Appellant (1) he: referred to inflammatory summation was because 11/8/1994, N.T., 2246; p. as a “territorial Appellant predator,” (2) “only people [Appellant’s] stated that four have seen to tell only you and action and one of them is alive behavior N.T., 11/8/1994, him,” 2247; p. about her with experiences (3) the that time to the on the jury put nightmare told “[fit’s by returning east side to bed. It’s time to do that verdicts of N.T., 11/8/1994, guilty, guilty, guilty.” p. Additionally, 2272. contends that the Appellant prosecutor improperly commented evidence, when, he upon produce his failure to stated as follows: they
Do think ... if had could refute the you somebody who witnesses, not seen that Commonwealth’s we would have from the witness stand? witness
N.T., 11/8/1994, 2248; N.T., 11/8/1994, see also 2265. p. p. that, comment, of this the Appellant by way prosecutor asserts proof that the defense had some burden of in the suggested case.
Again, Appellant the characterization of as a “territorial entirely is consistent the case the predator” presented by prosecutor, Appellant targeted who maintained that a certain type specific geographical Similarly, of victims within a area. the comment that one of still only Appellant’s victims was alive (1) appropriate, light providing Commonwealth testimony that Appellant Burghardt, Schmoyer, attacked (2) Sam-Cali; Fortney, offering proof Appellant for the of and Fort responsible killings Burghardt, Schmoyer, (3) ney; presenting testimony only as the Sam-Cali victim who survived her encounter with Further- Appellant.72 argument, Appellant present In relation to this likens the case to our Harvell, decisions in v. Pa. Commonwealth A.2d 27 on the east
more, nightmare reference to “the prosecutor’s side,” oratorical squarely gamut permissible falls within flare. guilt phase of the entire summation
Finally,
reading
any
suggestion
not disclose
unfair
prosecutor
does
Indeed,
in the case.
proof
bore some burden of
that the DNA
refers to the fact
by Appellant
statement cited
testimony
via
presented by
evidence
defense
by any
was uncontradicted
expert
several
witnesses
witnesses,
fully
presented
consistent with the case
which
Furthermore,
jurors.73
the trial court instructed
an
inference because
concerning
making
Appel
not
adverse
*80
that,
law,
and
as a matter of
the defendant
testify
lant did not
to establish his
produce any
is not
evidence
required
innocence. See
N.T., 11/8/1994,
2280-82,
According
pp.
the
reject
arguments
the
misconduct
and
ly,
prosecutorial
we
by Ap-
claims asserted
corresponding counsel ineffectiveness
525,
(1974),
Lipscomb,
205
and Commonwealth v.
455 Pa.
317 A.2d
(1974),
during
speculated what
prosecutors
where the
their summations
(2)
jurors;
have said
the
and
Common-
the deceased victims would
179,
Gilman,
(1977),
prosecu-
the
v.
470 Pa.
253 state- closing guilt phase concerning prosecutor’s pellant ment. of allegations prosecutorial all
In relation to
herein,
prosecutor’s
note that the
we also
misconduct asserted
Gibson,
v.
Commonwealth
are not evidence. See
statements
1164(Pa.), cert.
denied,
948,
71,
1152,
522 U.S.
547 Pa.
688 A.2d
Johnson,
(William)
(1997);
668
364, 139
284
118
L.Ed.2d
S.Ct.
jurors,
instructed the
the trial court
Presently,
A.2d at 106.
again
beginning
of the trial and
at
day
on the first
(1)
attorneys
the statements
charge,
although
that:
jury
evidence;
facts or
they do not amount to
important,
are
(2)
to find the existence
only body qualified
is the
jury
N.T.,
N.T., 10/24/1994,
36-37;
pp.
facts. See
pertinent
2276-77,
11/8/1994,
2274,
find that this instruc
2333. We
pp.
any improper prejudice
as a further cure for
tion served
comments. See
prosecutor’s
resulted from
may have
Carter,
61,
A.2d
v.
not to
that the trial court’s instruction
(holding
any preju
as
cured
consider
statements
evidence
prosecutor’s
made
by
been caused
the comments
may
dice which
have
denied,
cert.
115 S.Ct.
prosecutor),
U.S.
(1995).
b. Phase *81 Closing i. Statement summation, phase in relation to the Finally, penalty he argues that his counsel was ineffective because Appellant object following failed to statement: there, not gentlemen, And as he sits ladies and we have for the any calling heard remorse. We have not heard any there, He to some like a and degree, sphinx victims. sits in the to to life or death you impose have decide whether particular case.
Think any about or not there is remorse. whether this
N.T., 11/10/1994, According Appellant, to pp. 2706-2707. Fifth Appellant’s comment on an impermissible constituted self-incrimination. right against Amendment guilt phase either the testify during did not Appellant Hence, the statement cited of the trial. penalty phase or reference to valid improper Appellant’s to be an appears above should have right federal constitutional exercise of his convinced, however, trial counsel. We are objected been prose as a result of the prejudice that suffered no Appellant cutor’s comment.
First, that not that at issue is a brief statement did we note not the fact that did Appellant contain a direct reference to Second, specifically the trial court testify the trial. during to the defendant entirely up that is jury instructed “[i]t infer any must not draw adverse testify you whether to 11/10/1994, N.T., feel p. 2740. We ence from his silence.” ill effect adequately any that this instruction more than cured before) (as did not comment that we stated fleeting of this exercise of his Appellant’s even contain a direct reference to Baker, supra (the See pre Fifth is right. Amendment Freeman, instructions); For all of supra. sumed to follow the nqt reasons, entitled to relief on this Appellant the above ground.74 Statutory of the Death
C. Review Sentence that is not entitled Having Appellant concluded raises, that he must affirm any relief on of the claims we that it sentence of death unless we determine Appellant’s factor any arbitrary or other product passion, prejudice, support that the evidence fails to or unless we determine See at one circumstance. finding aggravating least 9711(h)(3). § Pa.C.S. allegedly all Appellant that the cumulative effect of also contends during guilt penalty phases improper prosecutorial comments integrity of his convictions and sentences. of the trial undermined that, light when argument of our conclusion We do not address this basis, allegations prosecutorial considered on individual none Freeman, any at relief. See 827 A.2d misconduct entitles (observing ... no number of failed claims is settled ”[i]t individually”). may they collectively attain merit if could not do so
255 record, Upon Appel review we find that lant’s death sentence not the of product passion, preju dice, Furthermore, any arbitrary or other factor. we conclude support finding that the evidence was sufficient to of three Fortney; circumstances in relation to of aggravating killing (1) namely: during perpetration was committed killing (2) had a felony;75 significant history felony of a violence;76 the use or threat of involving convictions been of another murder committed in Appellant “has convicted jurisdiction and committed either before or at the time of any the offense at issue.”77 affirm the
Accordingly, regard we verdict and sentence Pleas, ing Lehigh No. 58 of 1994 County Court Common Criminal Division.78 We also affirm the Order of the trial court 55 56 regarding Lehigh County Nos. Court Pleas, of Common Criminal Division.
Former Justice LAMB did not participate the decision of this case. a concurring opinion.
Justice NIGRO files Justice files a concurring opinion. SAYLOR Justice concurring. NIGRO
I join the result reached I majority, as agree with its ultimate conclusion that Appellant is not entitled to relief. however, I separately, write to address its analysis as it relates to two of Appellant’s claims.
In one of his claims of error many regarding the voir dire process, trial Appellant argues court abused its in refusing discretion to dismiss several venirepersons cause, thereby him to forcing peremptory use his challenges 9711(d)(6). § 75. 42 Pa.C.S. 9711(d)(9). §
76. 42 Pa.C.S.
l(d)(ll).
§
42
Pa.C.S.
971
(i),
§
Prothonotary
78. Pursuant
Pa.C.S.
of this Court is
hereby
complete
directed to transmit
record of this case to the
Pennsylvania.
Governor of the Commonwealth of
*83
ultimately
In
re-
venirepersons.
analyzing
those
strike
claim,
decision in
majority
the
cites to this Court’s
jecting this
Colson,
490 A.2d
v.
507 Pa.
Commonwealth
in
(1985),
held that the trial court did not err
the Court
where
though
for cause even
that
refusing
venireperson
to dismiss
mother,
other
the victim’s
venireperson, among
things, knew
the victim’s
the
who discovered
prosecution
knew
witness
officer, and believed
prosecuting
the wife of the
body, knew
her husband.
actually
employed
had
once
the victim
to the
duty
principle
I
this
to adhere
recognize
Court’s
While
decisis,
I
not
simply
I
to note that
do
compelled
am
of stare
Rather,
it
abun-
court’s conclusion.
is
with the Colson
agree
me,
clear,
venireper-
to
that the nature of the
dantly
at least
in that case created a
ties to those involved
many
son’s
the venireperson’s
likelihood of bias so as warrant
sufficient
(“A
for cause should be
challenge
Id. at
disqualification.
a close relation-
juror
the
has such
prospective
when
granted
counsel,
familial, financial,
situational,
the parties,
or
with
ship,
witnesses,
victims,
presume
that the court
a likelihood
or
will
or
prejudice by
a likelihood of
his
or demonstrates
prejudice
Nevertheless,
I
do
question[s].”).
her conduct and answers
case are
that the relevant facts in the instant
even
not believe
Colson,
in
of the venireper-
to those
as none
remotely similar
relationship
the
type
at issue here had
same
sons
Indeed,
view,
my
in
in
the
Colson had.
venireperson
case as
in the instant case are
venirepersons
the situations
in
venireperson
more akin to the situation of the
Com-
much
(1980),
Patterson,
Justice SAYLOR
I concur in the
the
I
by
majority,
While
result reached
respectfully
supporting
disposition
differ with its rationale
the
claims,
of
the
Appellant’s
including
following.
of several
First, I
trial
Appellant’s
view the resolution of
claim that the
for trial
consolidating
court abused its discretion
charges arising
separate
from the three
homicides as a closer
189-91,
See
at
majority.
Majority Opinion
case than does the
(“[I]t
of
situation
any
is difficult to conceive
In
v.
(1981),
under
conditioned consolidation
offenses
Court
identity justification upon
fairly
requirement
an
strict
correlation
requiring
high
“such a
operandi,
distinctive modus
proof
of the crimes that
the defendant
the details
anyone
it
else but
very unlikely
committed one makes
the others.” Id. at
259
Second,
in
particularly
light
and
of the trial court’s decision
to
the crimes
the case
a
candidate for a
try
jointly,
strong
was
or venire. Of the 159
change
venirepersons
venue
who
negative response
questions probing
a
to
questioned,
were
the rare
The
char
exposure
exception.
prejudicial
media
was
acter of the
is also
from
dire
publicity
apparent
response
voir
Indeed,
the trial judges
s.2
involved made various acknowl-
majority opinion
appears
incorporate
tendency
a
also
to
in the decision-
“identity”
plan”
al law to conflate the
and “common scheme or
exceptions
general
against
Majority
to the
rule
consolidation. See
193-94,
however,
Opinion
My preference,
at
260 see, N.T., case, e.g., concerning notoriety the
edgments coverage efforts to diffuse the effect of the at and their See, process. e.g., the throughout also voir dire apparent were (voir (“We dire), people judged guilty at 1278 cant let be N.T. id. at 2167 Morning says.”); Call or innocent what (“You tried, in newspa- and tarred and feathered would be you personal experience, paper I can tell from per. And straight.”). in not it wrong reporting often I therefore this issue as a question, Like the severance view in of the trial court exceeded the close one terms whether discretion, that of its and would caution outer boundaries given, should be circumstances involv careful consideration crimes, notorious, to a alleged serial ing highly publicized, a in order to ensure a fair change defense for venue request however, majority I concur that Ultimately, trial. on this ground, verdict need not be disturbed present and based on the cooling-off period,3 the existence of a given like, media, was, it.”); my he did the news and the immediate reaction (referencing indicating either at an article "was id. ("I crime”); admitted to some other id. at 2142 remember convicted or excited, hearing they the time of the arrest that were or the about killer”); ("But guess I possibility that we had our first serial id. at 2166 newspapers, you the conversations have at work. You its more so shouldn't, you you opinion. Whether nor do kind of form an should (from personal opinion.”); form an id. at 2190 media accounts there, conversations, indicating guilt yes.”); "I feel there is some id. at ("It guilty, that the defendant seems to be based on the seems media.”); public put in the id. information that seems to have been out ("I newspaper leading at believe I said the information was (“I it.”); say way, saying can what that he had done id. at 2407 from reading appears guilty.”); (expressing it that he is id. at 2441-42 I'm accounts); ("In opinion guilt media id. at 2564 fixed based on case, following pointing ... if there's DNAevidence out there that is is, direction, only which I think there I think there’s one answer in that it.”). acknowledged, regard, significant in this that a number It should be very concerning Appellant. venirepersons had read recent articles dire, however, suggests that the more sensational The tenor of voir Appellant’s coverage contemporaneous with the crimes and occurred See, N.T., dire) (voir (noting e.g., venireperson at 2609 that the arrest. Appellant's crimes "when it was a hot item but that it learned faded.”).
261 to screen out venirepersons court’s extensive efforts trial were fixed.4 opinions whose
Third, I
characterization that all of
majority’s
differ with
83,
Smoyer,
of
v.
requirements
(1984),
in relation to the hypnoti-
A.2d 1304
were satisfied
476
Sam-Cali,
testimony
Majority
of Denise
see
cally-refreshed
498,
217-19,
particularly
at
864 A.2d at
since
Opinion
that this
not
that follows this statement assumes
analysis
219-21,
at
A.2d at
Majority Opinion
in fact the case. See
864
Indeed,
Ms.
to the
testimony relating
499.
since
Sam-Cali’s
nature of her attack
from the
solely
sexual
was derived
session, it
hypnotic
plainly
Smoyer’s
inadmissible under
Pa. at
at 1306.
Smoyer,
second criterion. See
476 A.2d
Opinion
the trial court
as much.
Notably,
acknowledged
See
Motions,
that,
on
at 33
aside
slip op.
(finding
Post-Sentence
of the other
requirement,
Smoyer
from the notice
none
re-
satisfied).
I
quirements
difficulty
were
also have
with
majority’s finding
neutrality
purposes
Smoyer
of
for
of
on the
of a
who is a member of the law enforcement
part
hypnotist
221-24,
community.
Majority Opinion
See
at
particularly considering the deference due the trial court's determina- relationship tion that was not so substantial as to warrant a presumption prejudice. an claims to demonstrate Smoyer dice relation 222-24, A.2d at 501. at entitlement to relief. See id. Next, majority’s disposition Appel- that the to the extent failing counsel in claim of ineffective assistance of lant’s miti- the catch-all falling under develop mitigating evidence at Majority Opinion see analysis, gator suggests quantitative (“We 232-34, trial counsel ineffec- at 507 cannot find 864 A.2d they exactly Appellant alleges what achieving tive all miti- the existence of the catch failed to do—establish 237-39, disagree I id. at 864 A.2d at gator.”); see also presented, weight this The evidence approach. *88 is the mitigator, to “count” the catch-all ability and not the qualitative statutes penalty factor the death dispositive sentencing. capital determination in approach to the selection 9711(c)(4). in light and Accordingly, 42 generally See Pa.C.S. fall under may of which range mitigation of the broad evidence circumstance, I that the the catch-all believe the umbrella of failure to to the asserted inquiry pertaining ineffectiveness a generally compari- should entail present adequate mitigation in the presented that mitigation son of the evidence was defendant of trial in relation to that which the penalty phase presented. later claims should have been Accord Common- Williams, 207, 248, A.2d wealth v. in relation to approach this (implementing comparative inquiry). of the ineffectiveness strategy prong reasonable however, majori- I approach, agree this Applying not entitled to Appellant ultimate that ty’s determination trial, At presented relief on this claim. counsel post-sentence Appellant members testified that family friends and who present- and Trial counsel also loyal, helpful, companionable. brother, to his testified testimony Appellant’s ed from who in his developments arising and positive conversion to Islam result, Appel- authorities testified to prison life as a and who Further, attempted record. trial counsel positive prison lant’s his by Appellant affecting faced hardship to demonstrate testimony from development, including emotional and social alcoholism, aggres- his father’s family concerning members siveness, abusiveness, interven- history as as the well juvenile classes and special efforts such as educational tion in this addressing his disturbance directed placements, testimony psychi- also from a presented Trial counsel regard. arising drug his difficulties from and alcohol regarding atrist disorder. personality and an anti-social abuse that ineffective for contends defense counsel was educators, (including numerous witnesses failing present officials, friends), counselors, who have attested as would character, propensities, family good to his non-violent demonstrating as documents his background, multiple as well A community. good in and connection to the achievements evidence, however, of this is cumulative what was portion To the extent that during penalty phase. presented review, I upon information is do not supplied, additional a or that it being weight consider it is as of such character verdict, penalty particularly affected the likely would have actually pre- into consideration the evidence that was taking common Additionally, pleas sented. deference is due that there acceptance testimony court’s of counsel’s presentation decision to curtail of character- strategic evidence, in light based substantial rebuttal evidence on Opinion was available to the Commonwealth. See Post- Motions, at 56-57. slip op. Sentence
Next,
Appellant’s
I do not subscribe to the
claim
view
*89
of torture adduced in the penalty-
relative
evidence
moot,
of trial is
in
of the vacation of his sentences
phase
light
in
of
killings
Burghardt
Schmoyer.
relation to
Ms.
Ms.
241^12,
at
at 512.
Majority Opinion
problem
See
864 A.2d
The
prejudice implicated by
of
this claim is
potential spillover
the reason for the Morris
careful circum-
precisely
Court’s
offenses, Morris,
scription of consolidation of criminal
see
493
176,
720,
I
reject
Pa. at
425 A.2d at
and would not therefore
out of
the claim that such
in
prejudice may
hand
have ensued
a case in
a defense
for severance has been
request
which
denied,
spillover
where the claimed
relates to a
particularly
Moreover,
subject
inherently prejudicial
as
as torture.
an
in
cases to
independent obligation
capital
Court has
review
product
the record to ensure that the verdict was not the
of
arbitrary factor. See
or
other
passion, prejudice,
any
9711(h)(3).
§
claim
particular
Pa.C.S.
As this
touches on
statutory obligations
regard, again,
this
I believe
Court’s
implicated.
that merits review is
such
On
review
record, however,
I am satisfied that
its
performed
Appellant’s
duties as instructed in relation to
claim as framed.5
Finally,
majority’s analysis
I differ with the
of Appellant’s
object
failing
claim that his counsel were ineffective for
prosecutor’s improper
Appellant’s
references to
exercise of
Fifth
to remain
right
during
penalty
his
Amendment
silent
its
In this
I do not
statements
phase
respect,
regard
summation.
N.T.,
2706,
any remorse,”
not heard
at
“we have
“[w]e
id. at
victims,”
2706-07,
any calling
have not heard
for the
id. at
there,
2707,
to some
like a
degree,
sphinx,”
sits
“[h]e
id.,
remorse,”
any
about whether or not there is
as
“[t]hink
indirect or
If
to a
fleeting.
repeated,
explicit references
defendant’s failure to make himself heard at trial
not
were
claim, Appellant
testimony
In
his
focus on the
of Dr. Mihalakis
concerning
physical suffering, claiming
the victims' emotional and
subject
expert testimony.
proper
Appellant’s
it was not a
for
See
Brief
previously
aggrava-
While the Court
at 122-26.
has
stricken a torture
331,
testimony,
King,
tor based on similar
see Commonwealth v.
554 Pa.
336-38,
(1998), majority
721 A.2d
781-82
a
of the Court has more
recently
nothing prejudicial
commentary by
stated that there is
in brief
concerning
Dr.
his
a
Mihalakis
assessment of
victim’s terror. See
545, 553-55,
Lopez,
Commonwealth v.
854 A.2d
(2004). Although disagreed
Lopez,
Lopez,
I
with
this statement
see
here,
J.,
(Saylor,
concurring),
potential passion. to arouse See N.T. at 2562 don't like—I guilt kept pictures phase these out of the and innocence but because dealing aggravating possibility we're with circumstances and the torture, you compelled hope you'll I'm to let I see these. not be too them.”). however, upset Appellant, spillover does not raise the (in prejudice argu- photographs separate claim in relation to these ment, Appellant separately prejudicial does claim that the effect of the value, photographs outweighed probative Appellant's their see Brief at 82; claim, however, spillover aspect, this is not focused on the but rather, admissibility purpose on the threshold issue in relation to the *90 instance). which the evidence was offered the first 265 silence, the direct references to his sufficient to constitute to such failure image sphinx relative invocation Moreover, its recently repudiated is. the Court has surely (for commentary example, approved decisions that similar 997, Lester, 644, 669-70, Pa. 722 A.2d v. 554 Commonwealth (1998)), on extent that such decisions were based 1009 Fifth inopera an erroneous that the Amendment was position capital in the of a trial. See Common penalty phase tive 385, Freeman, 532, 573-74, 410 Pa. 827 A.2d wealth v. (2003).6 controlling I that the
Accordingly, would hold
relevant
establishing prejudice
difference arises out of the burden of
(since
in the form
allocable to
the issue here arises
misconduct),
of an
claim of
as com-
unpreserved
prosecutorial
on the
to establish harm-
pared to
burden
Commonwealth
preserved
a reasonable doubt relative to
beyond
lessness
of trial error.
v. How-
generally
claims
See
(1994) (distin-
ard,
86,
1300,
99-100,
538 Pa.
645 A.2d
1307-08
review).
error
guishing
prejudice
between
and harmless
v. Pennsylvania DEPARTMENT COMMONWEALTH TRANSPORTATION, OF OF BUREAU DRIVER
LICENSING, Petitioner. Supreme Pennsylvania. Court of
Jan. justification law "demeanor” 6. The decisional also offers a to authorize commentary prosecutorial capital on a defendant's failure show See, Rice, 212-13, e.g., remorse. Commonwealth v. however, (2002). justification, A.2d loses force where the This prosecutor affirmatively states that the defendant has not been heard (or matter). concerning any subject, from remorse other for that