*3 NIX, C.J., Before LARSEN, and FLAHERTY, zappala jj. McDermott, papadakos, and
OPINION OF THE COURT PAPADAKOS, Justice.
We are presently required to review the conviction of murder of the degree first and the death sentence of Florencio pursuant Rolan to 42 9711(h)(1).1 Pa.C.S. Ap- § pellant was arrested and charged homicide, with criminal and robbery possession crime, of an instrument of for the death of Santiago, Paulino who was shot to death in an abandoned house in the City Philadelphia.
Appellant was tried in the Court of Common Pleas of Philadelphia County, before a with the Honorable George Ivins, J. Senior Judge, presiding. 19, 1984, On May the jury returned its of guilty verdicts of murder of the degree first possession crime, an instrument of not guilty 21,1984, On robbery. May a.separate sentenc- ing hearing conducted, following which the same jury Appellant determined that be sentenced to death. Post-ver- denied, dict motions argued were and the trial court sentenced death on the murder of the first degree conviction and to a concurrent term of one to two years imprisonment for the weapons offense. This auto- matic appeal followed. being
It the practice of this court in death cases to review the sufficiency evidence, of the begin we our review of this case aby discussion of whether the record *4 evidence was sufficient to support the verdict of murder of degree2 the first as returned by jury. See Common- 9711(h) provides: 1. 42 § Pa.C.S. (h) Review of death sentence.— (1) subject A sentence of death by shall be to automatic review Supreme Pennsylvania pursuant Court of to its rules. 2. degree The Crimes Code defines murder of the first as: intentional,” criminal homicide ... committed an "[a] i.e. "will- ful, premeditated killing.” deliberate and 2502(a), (d). 18 Pa.C.S. §
5 cert. (1982), A.2d 937 Zettlemoyer, 500 Pa. 454 wealth v. (1983). 1327 970, 103 2444, 77 L.Ed.2d denied, 461 U.S. S.Ct. sufficiency in apply reviewing The we standard whether, admitted at viewing all the evidence evidence winner, there most the verdict light trial in the favorable find every enable the is sufficient evidence a reasonable doubt. Com of the crime beyond element (1987); v. Pa. 533 A.2d Jermyn, monwealth (1987); Sneed, v. 526 A.2d Commonwealth Pursell, A.2d 183 Commonwealth trial, all with reason- together The at presented evidence Commonwealth, discloses the of the inferences in favor able 13, 1983, May 8:30 on p.m. At following. approximately victim, arguing Santiago, the were Appellant and Paulino Streets and another at the corner 17th Wallace with one and a money The over Philadelphia. argument was former Appellant’s Betsy was “Betsy.” woman named out house and recently Appellant's had lover who moved (her lover). house new up had residence the victim’s taken at brother, Santiago, present The Francisco victim’s exchange between and overheard argument men. entered a argument, Appellant of this
At the conclusion looking for the a few minutes later came house and nearby rifle a .22 carrying was now caliber Appellant victim. in an abandoned he the victim and brother Francisco found Street, had entered use where the two house on Wallace house, the abandoned Appellant As entered the bathroom. and, rifle at his pointing the loaded he found both brothers immediately fired said, money” me the victim, “Give from Santiago’s chest a distance one into Paulino shot through quickly then exited feet. about six alley. down an door and ran house’s back arrived at the vacant they summoned police The were premises of the and areas A search p.m. house 9:00 about lying rifle loaded .22 caliber thereto revealed the adjacent day next The autopsy performed alleyway. the rear *5 the gun identified shot wound as cause of death. A for warrant the arrest of was Appellant 14, issued on May 1983, following the day shooting, but he ap- not was prehended November, 1983, until when he was finally locat- ed in York Upon apprehended, New City. being Appellant waived extradition and returned to Philadelphia. was
Taking all of these circumstances a together, jury could conclude a beyond doubt reasonable that Paulino Santiago’s death was a homicide. From the nature a could infer injury, jury that the homicide was intentional and malicious. Since thе armed Appellant looking came for victim, his the jury could conclude that the killing was premeditated. Finally, jury could accept eyewitness of the testimony victim’s brother beyond and conclude Appellant reasonable doubt that committed the crime. Ac we are cordingly, satisfied that sufficient evidence exists in this to support record jury’s verdict murder of the first degree, Appellant’s dismiss sufficiency challenge.3 argues that
Appellant
the trial court
its dis
abused
cretion
it
his request
when
denied
to recuse itself from this
Appellant brought
case when
it to the attention
trial
court
it
presided
that
had
over another
trial on different
charges
In
against Appellant.
trial,
the previous
guilty
by
jury
Judge
found
of murder
with
Ivins
and,
presiding
on
this
appeal,
Court reversed the sentence
and remanded the
conviction
matter
for a new trial.
Rolon,
Commonwealth v.
486 Pa.
Appellant’s to statement made misconduct reference prosecutorial is argued improperly which it during closing argument to As we testify. failure upon Appellant’s commented A.2d Crawley, noted in Commonwealth ad is to comment (1987), prosecutor permitted not on the merits testify refusal a defendant’s versely upon com obviously him. comments against Such charge and the self-incrimination privilege against promise Com of innocence. presumption constitutional defendant’s 467 A.2d v. Travaglia, monwealth Turning case, to this Appellant points follow ing language the prosecutor during delivered his close the jury: I go through would like to the law
“[MR. DiDONATO:] now. The facts were I long, not that think don’t that there аny your mind, you doubt know Florencio Rolan was the man that shot and killed Paulino Santiago. You absolutely have heard no evidence that would otherwise, indicate none whatsoever.” (N.T. 5/17/84, 80.) p.
Trial counsel immediately objected statement arid mistrial, moved for a that the arguing statement improperly referred to the fact that the defendant had not testified. The court denied the objection request mistrial, for a but instructed the follows: gentlemen
Ladies and of the jury, you are to note: The comment involving production evidence, you are to *7 completely disregard plаce that. It has no in this case as it presently stands. So the what district attorney has must, said question, disregarded. without I though Even tell you again, will this comments of counsel, it, time may whatever make no they have control over your understanding your recollection. It is your recollection alone and nothing else. But this bordered legal little on aspects. bit the is Iwhy telling That am you to completely, absolutely, and dis- unequivocally regard the comments.
(N.T. 5/17/84, p. 82)
It is prosecutor well established that a must have reason- able in presenting latitude a case to jury and must be free to her present arguments his or “logical with force and vigor.” 471, D’Amato, Commonwealth v. 514 Pa. 526 A.2d (1987). 300 read in When closing, context prosecutor's argument does not seem to us to reflect ad- versely upon Appellant’s decision not testify. to The simple statement was a declamation that all the evidence lead to unerringly Appellant the conclusion that had com- argument mitted the murder. Such an already has been
9 v. 514 Crawley, Commonwealth Court, by approved an merely represents (1987), 334 526 A.2d Pa. to argue right unquestioned the prosecutor’s instance of guilt. the defendant’s evidence that the establishes 'Amato, D 526 A.2d v. Commonwealth Pa. 185 A. Capalla, v. Commonwealth (1987); (1936). adequate immediate and event, the trial court’s any
In Appel- possible prejudice cured cautionary any instruction comment. prosecutor’s from the have suffered may lant inef- Next, trial counsel rendered argues that during proceedings voir dire of counsel fective assistance had who questions persons to venire specific posing not under penalty the death willingness apply indicated for circumstances, to excuse agreeing appropriate had they indicated that persons all who cause those venire of the death considering imposition objections appropriate and in cases. circumstances appropriate under that claims indicate ineffectiveness clearly Our cases First, perform counsel’s components. measured two are if it is of its reasonableness light ance evaluated merit. arguable claim is of underlying that the determined counsel’s actions were it is determined that trial Once unreasonable, the defendant demonstrate require we him. Commonwealth prejudiced the ineffectiveness how Pierce, A.2d 973 excused from the venire who were As those individuals answering discharge predicated upon panel, their *8 following questions: panel, pose I of the gentlemen jury ladies and
“Now any any you Do of have questions you: to all following impo- to considering objections philosophical moral or circumstanc- appropriate under penalty of the death sition case?” or in an appropriate es case, court the trial process In the selection with panels each of three questioning general used 1106(e). provided by Pa.R.Cr.P. agreement Appеllant’s The quoted question above was asked of each of the three panels during used voir (25) dire and twenty-five veniremen responded positively to the inquiry. Following consultation court, prosecutor, with trial trial counsel and Appellant, it was agreed to (25) excuse these twenty-five veniremen because of their rejection indicated application of the penalty. death
Appellant
argues
now
that his trial counsel was
ineffective for agreeing to the dismissal of these veniremen.
This argument must fail
it
that,
because
overlooks the fact
an
following
extensive consultation
counsel,
with trial
Ap
pellant himself agreed to the dismissal of these veniremen
and so stated on the record. Since
Appellant’s
it was
decision
forego any
to
questioning
further
into the venire
men’s views on the death
he
penalty,
cannot now be heard
to complain that his trial counsel was ineffective for follow
ing Appellant’s own deliberate choice. Commonwealth v.
Szuchon,
506 Pa.
(1984).
A.2d 1365
To have
followed such a course under these circumstances would
have been meritless and counsel cannot be deemed ineffec
for
tive
failure tо assert a meritless claim. Commonwealth
Peterkin,
511 Pa.
(1986);
Under such derelic- questions ask further was a decision not to tactical performance his as trial counsel or that his tion of duties indi- of the record Pierce. Our review was unreasonable. and the posed of veniremen general questions that the cates were of individual members questions posed panel specific select- of individuals who were to insure that sufficient law and find the facts willing apply all to ed were defen- This law a conscientiously. guarantees is what the dant, McCree, 162, 106 476 U.S. S.Ct. Lockhart v. (1986), such an are satisfied that L.Ed.2d 137 and we The fact that trial counsel was selected. impartial panel parame- as to the posed specific questioning not have may for a willingness a to vote prospective juror’s ters of under these cir- appropriate an case sentence of death counsel not the conclusion that justify cumstances does selected. impartial jury a fair and was failed to assure that Thus, of veniremеn questioning while the issue further merit, that counsel’s must conclude may arguable we circumstances under these performance was reasonable and, therefore, ineffectiveness reject must Appellant’s claim. of ineffective assist- charges also two instances
Appellant First, he phase. during ance of trial counsel stipulating his ineffective in argues that trial counsel was into of his record prior the introduction evidence criminal way prosecutor to the character- objecting and for not prior closing jury. ized record his prosecutor attempted to estab- phase, At the penalty had aggravating Appellant lish an circumstance that as involving use or felony convictions significant history 9711(d)(9). person. Pa.C.S. threat violence § of this proposed The submit evidence prosecutor circumstance, in- felony four convictions prior aggravating conviction, a 1976 manslaughter voluntary cluding It conviction, burglaries. prior and two aggravated assault Appellant was convicted agreed by trial counsel these felonies and he stipulated to their introduction into evidence. argues further that when the prosecutor ar-
gued to the jury that these four convictions could be con- sidered as a establishing significant history felony of con- victions involving use or threat of violence to the person, he misled the jury burglaries because the are not such crimes.
Appellant argues that the trial court compounded the which, harm it when did not instruct the as prior felony convictions involved the or use threat of violence person.
Thus, Appellant’s complaints basic revolve around the admissibility and of prior consideration his convic- burglary tions. law,
At burglar common a was generally defined as one “by night who breaketh and mansion-house, entereth into a with intent to commit a felony.” The law regarded this crime as a very heinous offense because of the for threat harm that it represented to the inhabitants the mansion- house represented and it because invasion and forcible right disturbance of the habitation which all people had right to expect a civilized society. Because of the great public policy involved in shielding being from citizenry attacked in their homes and in preserving domestic tranquil- ity, punished burglars the law with the of death.4
Thus, the common recognized law as a crime burglary involving use or threat of violence the person its very nature. It recognized, however, was also common law definition inadequate was an safeguard be- punished cause it for only nighttime intrusions into homes. the need developed protect As people from the threat of situations, violence in other responded law and the scope of the offense gradually enlarged by judicial interpretation legislation. See, Toll, and Pa. Crimes Code See, Law, IV, 4. pp. Blackstone’s Commentaries on the Book 223-228.
13 vari (1974). occupied pеople 397-400 Since pp. Annotated structures, and day both buildings types ous right peaceable argued that their forcefully night, it was intrusions non-privileged without fear habitation well, in day both places all these harm extended to bodily Law, 715- Scott, pp. Criminal See, v. night. La Fave Pa. also, 200 Procopio, v. See Commonwealth 717 (1963) into build (entry A.2d 773 Court 188 Superior Hellner, 160 Pa. Ct. Superior v. ing); Commonwealth warehouse); Commonwealth (1947) into (entry A.2d 512 (1942)(entry Lindie, Superior 147 Pa. Ct. v. Ashe, v. smokehouse); ex rel. Foster into Commonwealth (1937) (entry into barn Ct. A. Superior Landres, 84 Pa. outhouse); Superior or Commonwealth v. Ste (1925) (entry factоry); into Commonwealth Ct. into (1921) (entry freight- Superior Ct. 27 fanczyk, *11 Carson, 179, Pa. 30 985 166 A. car); and v. Commonwealth (time immaterial). (1895) of entry Code, a is defined as burglary Crimes Under our current if he a burglary “A of enters person guilty follows: is secured or structure, separately or occupied or building commit a crime thereof, with intent to occupied portion therein____” 3502(a). defi- The common law 18 Pa.C.S. § buildings, to include entries into expanded nition has been structures, buildings parts secured of occupied separately of occupied buildings separately parts structures and or non-privileged recognizes lаw that Our now structures. a such burglary of areas is because entries into these any This threat of persons. a pose entries threat violence has that great Legislature is so persons violence degree (18 of the first felony offense as a graded punishment a of ten 3502(c)) which carries Pa.C.S. § twenty years imprisonment. is degree of the first felony as a burglary a
Grading unprivileged theory consistent with totally likely are people structures buildings and where entries into safety. recognized threat to their We is a clear to be found 14 ago
this
long
Court,
fact
when this
speaking through Mr.
(later
Justicе Maxey
Justice)
Chief
said: “Every burglar is
potential
assassin and when his felonious purpose encoun-
ters
opposition
human
his intent
to steal becomes an intent
to kill and any weapon he finds at hand
weapon
becomes a
of murder.”
(emphasis
the original). Commonwealth v.
Grand,
Le
511,
336 Pa.
(1939);
A.2d 896
Commonwealth
Redline,
v.
486,
(1958);
Moreover, in the Act, Uniform Firearms Act of December 6, 1972, P.L. 6, 1973, No. effective June § Pa.C.S. seq., burglary et specifically defined § crime of violence. Persons who commit crimes violence using illegal may punished firearms addition punishment imposable for underlying violent crime. 18 Pa.C.S. 6103. Such statutory provisions spell out in capi- § Legislature’s tal letters the continuing protect- concern for ing general populace from threats of violence to their persons. *12 lines,
Along person these if a can demonstrate that building or structure was abandoned at the time of the illegal entry, a successful a defense to burglary prosecution 3502(b). be offered. may 18 Pa.C.S. This necessarily § said, follows from what have we because a building where abandoned, or structure can shown to be be there can be no threat of encountering person another and in putting him fear of violence. that the crime convinces us foregoing
The discussion viewed as and continues to be always of has been burglary pers to the use threat of violence involving a or crime be arguments rejected. must contrary Appellant’s on.5 Appel stipulating in to was not ineffective Trial counsel convictions, not objecting in burglary prior lant’s record of during closing his reference to them prosecutor’s to the reference to to the trial court’s objecting or not argument cannot be Because counsel charge jury. in its to the them issue, Appel a meritless failing for assert ineffective must dismissed. ineffectiveness claims lant’s he argues that the evidence submitted Appellant also character, and mental family background his concerning crime were sufficient establish at time of the state (e)(2) (e)(8).6 The jury and mitigating circumstances discretion, chose, in its evidence and presented with the scheme, it is legislative right. it its Under our as was reject factor any mitigating question whether exclusively jury of the upon concludes its review jury exists and where the found, acting it is within its can be evidence that none using burglary propriety 5. To the extent that we discussed aggravating circumstance 9 in Commonwealth to establish convictiоns (1986), we note that our discus- Christy, argument disposed We of the therein was obiter dictum. sion Christy jury impermissi- heard a new trial because the was entitled to because, Christy, jury did not whatever the heard ble evidence aggravating jury did not find the existence prejudice him since the Accordingly, of what kind of evidence our discussion circumstance 9. totally aggravating circumstance was may be to establish the used disposition of the issue as unnecessary to our consideration only non-binding dictum. viewed presented to us is however, bar, did find the existence at In the case finding aggravating 9 and the support circumstance evidence to ripe Christy squarely for our before us and issue alluded consideration. (e)(8) provide: 9711(e)(2) and 6. § 42 Pa.C.S. Mitigating shall in- (e) circumstances Mitigating circumstances.— following: clude the (2) extreme mental or was under the influence of The defendant emotional disturbance. (8) mitigation concerning the character Any other evidence of his offense. and the circumstances of the defendant and record *13 16
exclusive function and authority and its decision is conclu- sive. Accordingly, Appellant’s argument must rejected.
Finally, pursuant to our obligation statutory to rе view death cases to determine whether the imposed sen of tence death is or disproportionate “excessive to the penalty imposed cases,” (42 similar Pa.C.S. 9711(h)(3)(iii)),we have conducted an § evaluation of all convictions of of degree murder the first prosecuted under 1978, of 13, 756, Act September 141, P.L. No. 42 Pa.C.S. 9711, by aided the comprehensive study prepared at our § order by the Administrative Office Pennsylvania Courts (AOPC), (see, Commonwealth v. Frey, 504 Pa. (1984)). A.2d 700 That review no dispro reveals excess or portionality in the imposed sentence compared this case tо the sentence imposed other degree first murder cases where the evidence could support an aggravating circum stance such that the Appellant “significant had a history prior felony convictions involving force or threat of violence person.” 9711(d)(9).7 Pa.C.S. § reasons,
For the foregoing we sustain the conviction of murder of degree the first and affirm the sentence of death.8
NIX, C.J.,
concurring
files a
opinion.
J.,
ZAPPALA,
files a dissenting opinion.
aggravating
7.
present
It is
be noted that where one
circumstance is
found,
mitigating
and no
required
circumstances
are
is
9711(c)(1)(iv).
return a
verdict
death.
42 Pa.C.S. §
Common
Smith,
wealth
(1986);
511 Pa.
A.2d
Commonwealth v.
Buehl,
(1986);
510 Pa.
Beasley,
Commonwealth v.
ZAPPALA, Justice, dissenting. determination burglaries that
I unable assent to the am to circum- aggravating within inherently falling are сrimes (d)(9), use threat of violence to “involving stance the or the person.” the of “risk” and
First, concepts the confuses majority possibili- a chance or simply The former involves “threat”. more the an precisely whereas latter describes ty injury injury. or intention to inflict Even expression indication of con- burglary if that at common law it is assumed risk of violénce to a serious crime the sidered because in- necessarily that persons, burglary it does not follow entering the Breaking of violence. volves threat without exces- accomplished of the residence could be close not, need force, committed therein felony and the to be sive realization, an encounter with contemplation in or involve (theft for Thus the common law example). the residents any without ex- could have been committed burglary well although might to there be injury, of intention do pression the upon the resident come of such should possibility burglar.
Second, burglary contained expanded definition of considering burglary as against Code counsels Crimes It is true that the nature, a crime of violence. being, by burgled has been being to types subject of structures broadened to includе any that might occupied, be but it is not necessary that the structure fact be occupied. The crime is complete even if the structure is unoccupied and is unoccupied; known only complete abandonment is a defense. Put simply, since entering unoccupied, an secured area to commit any crime is now a burglary, legislature de-emphasized has the importance of risk harm persons.
Nor is the majority’s notation the Uniform Firearms Act includes burglary as a “crime of persuasive. violence” telling, think, More I is the fact that legislature included burglary not in B Article of Title under the heading “Offenses Involving Person,” Danger but Article C, “Offenses Against Property.” Though a particular burglary might ultimately involve danger person, I *15 the legislature believe recognized has that burglary by is essentially nature a property crime. I
Finally, am I perceive troubled what to be a tendency exhibited here and other cases to expansively construe the language aggravating of the circumstances. It should forgotten not be the whole purpose of specifically enumerating aggravating circumstances was to narrow of first type degree murder cases which death would be an appropriate penalty. Especially as circumstance (d)(9), where issue is not the of the nature crime being punished but the defendant’s criminal it history, contrary to this limiting purpose range to broaden the of what may (d)(9), be included. Under I believe it was the legislative intention make the death a possibility where only degree the first murderer had previously engaged in crimes used, where he had or use, had exhibited an intention against person. violence To now hold that it is also appropriate prior where defendant’s posed crimes only opens wide, risk of violence the door too and invites a to the challenge giving statute as too little structure rationally from distinguish capital non-capital degree first murders.