*1 866A.2d 351 Pennsylvania, Appellee, COMMONWEALTH Christopher RONEY, Appellant.
Supreme Pennsylvania. Court of
Argued Dec. 2002.
Decided Jan. *3 Gelman, E. for Esq., Philadelphia, Christopher Norris Roney. Burns, Pettit, Esq., Esq., Amy Zapp, Frederick
Hugh J. Pennsylvania. for of Esq., Philadelphia, CAPPY, C.J., CASTILLE, NEWMAN, BEFORE: EAKIN, SAYLOR and JJ.
OPINION Justice NEWMAN.
Christopher Roney (Appellant) brings appeal1 this direct from the of Sentence of the Pleas Judgment Court Common jurisdiction appeal judgment 1. Court has of a direct from a This penalty imposed. been sentence in a case which the death has 9711(h). § Pa.C.S. (trial court) him that sentenced Philadelphia County death conviction for murder. After following first-degree his by Appellant, the record and the claims raised we reviewing affirm. History
I. Facts and Procedural a.m., January At 8:20 on approximately Appellant (Canty) employees, and Mark forced Bank Norma Canty PNC Winn, Johnson, Vicola, Loretta and Ann at into the gunpoint, Bank Avenue.2 building Rising PNC located Sun inside, Norma accomplice Once and his ordered Appellant Canty and Ann the bank open Winn Vicola vault.3 While forced the to the area at gunpoint, Appellant two women vault vault, Loretta at the kept Canty watch over Johnson. While bank, at the front of the “Here Appellant, shouted who was I’ll take Appellant responded, worry, comes the heat.” “Don’t care of them.”4 (Officer time, Vaird),
At this Police Lauretha Officer Vaird of a police respond report who was the first officer to Bank, at the the front door of the robbery approached PNC bank, building. Appellant fatally bank As she entered the in the exited the building shot Officer Vaird abdomen and Meanwhile, from the through Canty the front door.5 fled entrance, his behind.6 through leaving gun bank side Out bank, side the Police Officer Appellant exchanged gunfire with (Officer Patterson), Donald on the Patterson who arrived shortly escape scene after Officer Vaird.7 Able to the shoot- N.T., 43-48, 65-71; N.T., 10/21/96, Session), (Morning pp. 10/17/96 36-42, 172-180, 187-189; N.T., 10/22/96, 50-118, 127-133, pp. pp. 3- identities, attempt 47-54. In an to conceal their *4 (PGW) Canty employees Philadelphia were Gas Works dressed as hats, coveralls, disguises and their included and reflective hard vests. N.T., 10/21/96, 119-120, 177-181; N.T., 10/22/96, pp. pp. 3. 14-15. N.T., 10/21/96, 120-121, 181, 225-226; N.T., 10/22/96, pp. pp. 15-16. 4. 179-180; N.T., 10/16/96, 125-127, N.T., (Morning pp. 5. Ses- 10/17/96 N.T., 50-62; N.T., sion), 10-11; 10/18/96, 29-33, 36-39, pp. pp. 16-18; 10/21/96, N.T., 10/22/96, N.T., 122,157-158,181-183; pp. pp. 10/24/96, pp. 13-31. N.T., 10/21/96, 122, 165-169, 181-183, pp. 6. 234-241. N.T., 10/16/96, 126-128; N.T., 10/18/96, 31-34, 48-49, pp. pp.
7. 62-93. out, Appellant jumped minivan, into a waiting green driven cohort, (McGlone), his Warren McGlone and the vehicle sped away on Rising McGlone, Sun Avenue.8 Later that morning, Canty, and met at Appellant McGlone’s home to discuss the events at the Bank.9 PNC
Thereafter, (1) found: police the getaway green minivan (2) abandoned at 4500 North 11th Street Philadelphia; various items of clothing worn as disguises by Appellant and (3) Canty; a loaded 9-millimeter automatic gun, which was on lying sidewalk front of the side entrance of the PNC Bank in question; and a loaded .380-caliber silver Lorcin revolver on the Later, sidewalk near the bank.10 the Bureau Alcohol, (ATF) Tobacco and Firearms traced the .380- caliber silver Lorcin Brown, revolver to Anthony a relative of Canty.11 Importantly, the gun was stolen and last seen in the possession of Canty.12 The ATF also traced the 9-millimeter Parker, automatic gun McGlone, to Richelle a friend of who purchased the for gun McGlone.13 Subsequently, Canty and
McGlone confessed to participating the events that tran spired at Bank Rising PNC on Sun Avenue on the morning January 1996.
During trial, the course of began on October 1996, three eyewitnesses Appellant identified as the man involved in the robbery of the PNC Bank in question.14 Two N.T., 10/18/96, pp. 8. 34-36. N.T., 10/18/96, 167-202, pp.
9. 207-244. N.T., 10/15/96, 107-210; N.T., 10/16/96, 24-97, pp. 204-209; 10. pp. N.T., 10/21/96, 37-38, 135-137, 177-179, 242-243; pp. N.T., 10/22/96, pp. 10-11. N.T., (Afternoon Session), 11. pp. 88-90. 10/17/96 N.T., 99-107; Session), N.T., (Morning (After- 12. pp. 10/17/96 10/17/96 Session), pp. noon 28-34. N.T., (Afternoon 36-46, Session), pp. 10/17/96 89-92. 14. Officer Patterson testified that ran out of the front doors of bank, him, handgun aimed a silver green and fled the scene in a plate face, minivan with Along license recognizing SKN-179. with his specifically Officer Appellant’s Patterson height remembered and build. N.T., 10/18/96, pp. 32-49. Norma Winn—one of the PNC Bank em-
ployees up building during held inside the robbery—also noted Appellant’s height, identifying him gun. as the robber a silver with *5 tall, the robbers was that one of noted
other witnesses Ann Vicola height.15 six feet male over African-American remained handgun a silver the tall man with testified man bank, the shorter of the while front entrance closer to the building with to the rear of handgun went the black with her and Norma Winn.16 Rone Officer Carl Police presented
The Commonwealth identification, and Rone) (Officer operation, expert as an that the Rone testified firearms. Officer characterization .380-cali- that the silver Lorcin established ballistic evidence fired inside of the crime was at the scene handgun found ber testified that the Rone also building. Officer the PNC bank from fired body of Officer Vaird was from bullet recovered Gregory Dr. Additionally, handgun.17 the Lorcin .380-caliber Examiner, testified Officer McDonald, Medical Assistant gunshot a fatal wound as a result of died Vaird track, the examination of the wound Based on his abdomen. Dr. bodily organs. struck vital that the bullet related witness of the of travel path that the and position noted McDonald consistent Vaird was body from the Officer recovered bullet from person tall a six-foot five-inch been fired having with than feet.18 of more two a distance N.T., 10/21/96, Finally, Appellant in front Tara Scott saw pp. 177-180. recognized him from just the incident and PNC Bank before of the and Lansdowne having Appellant previously near 60th Street seen 10/21/96, N.T., pp. Philadelphia. 36-42. Avenue West Chuctai, 7-11 convenience store who worked at the 15. Mohammed Bank, morning robbery, on the PNC testified that across from the the bank gunshot came from inside shortly of a after the sound man, five inches about six feet building, African-American he saw an tall, Upon gun in his hand. the bank with a the front doors of exit officer, bank, gun pointed a police leaving the male encountered N.T., 10/16/96, officer, appeared to fire it. in the direction of this 122-129, robbery, another before the 146-147. A few minutes pp. men, Rivera, witness, dressed as two African-American William saw street from store across the near the 7-11 convenience PGW workers six feet one of the men was over building. He noticed that the bank N.T., 10/16/96, pp. tall, height. feet in less than six while the other was 204-209. N.T., 10/21/96, pp. 118-123. 16. 10/24/96, N.T., pp. 32-50.
17. N.T., 10/24/96, pp. 23-27. 30, 1996, Appellant guilty found On October murder,19 robbery,20 conspiracy,21 three counts of first-degree assault,22 of an instru burglary,23 possession aggravated *6 (PIC).24 on No Following penalty hearing crime ment of death, 1,1996, Appellant finding the sentenced to jury vember (1) the a peace three circumstances: victim was aggravating in the performance or enforcement official killed officer law (2) duties;25 committed the killing during perpe her the (3) knowingly of a created felony;26 Appellant tration and person during killing.27 risk of death to another the grave (1) mitigating Appel The also found two circumstances: (2) miti significant history;28 lant had no criminal other character evidence.29 gating 3, 1997, formally March the trial court the imposed
On additionally Appellant sentence of death and sentenced sentences of to 120 months incarceration for consecutive 60 conviction, conviction, robbery conspiracy aggra- each conviction, burglary vated assault conviction.
trial also to a court sentenced consecutive sentence of 30 to 60 months incarceration for his PIC In conviction. total, years to serve 32 to 65 of incarcera- Appellant was 1/2 tion, in addition to his sentence of death.
II. Discussion “This required sufficiency Court is review first-degree the evidence sustain a conviction of murder case the death has been every penalty imposed.” where Corn- 2502(a). § 19. 18 Pa.C.S. §
20. 18 Pa.C.S. 3701. 903(a). §
21. 18 Pa.C.S. §
22. 18 Pa.C.S. 2702. 3502(a). §
23. 18 Pa.C.S. §
24. 18 Pa.C.S. 907. 9711(d)(1). §
25. 42 Pa.C.S. 9711(d)(6). § 42
26. Pa.C.S. 9711(d)(7). §
27. 42 Pa.C.S. 9711(e)(1). § 42 Pa.C.S. 9711(e)(8). §
29. 42 Pa.C.S.
594
Koehler,
(1999),
334,
225,
monwealth v.
558 Pa.
233
denied,
829,
79,
41
cert.
121
148 L.Ed.2d
531 U.S.
S.Ct.
16, 454 A.2d
Zettlemoyer,
Commonwealth
500 Pa.
(citing
denied,
970,
2444,
cert.
77
461 U.S.
103 S.Ct.
denied,
31,
rehearing
463 U.S.
L.Ed.2d
(1983)).
regard
this assessment
perform
We have
claim, an
of the evidence
reviewing
sufficiency
When
and all reason-
court must view all
evidence
appellate
in the
most favorable
arising
light
able inferences
therefrom
in order
to the Commonwealth as the verdict winner
*7
to enable the
determine whether the evidence was sufficient
offenses
fact
to find that all of the elements of the
finder
doubt.
beyond
were established
reasonable
Hall,
269,
190,
(1997),
195
549 Pa.
701 A.2d
denied,
cert.
1082,
1534, 140
684
523
118
L.Ed.2d
U.S.
S.Ct.
(1998).
to cases where
equally applicable
“This standard
long
than direct so
as the
the evidence is circumstantial rather
to the crime
combination of the
links the accused
evidence
turn,
Burgos,
at 13. In
beyond
a reasonable doubt.”
murder,
the
first-degree
a conviction of
Common
sustain
(1)
acted
appellant
specific
must
that:
the
with
prove
wealth
(3)
killed;
kill;
the
unlawfully
a human being
intent to
was
(4) the
done with
killing;
killing
did the
was
appellant
Watkins,
194,
843
deliberation. See Commonwealth
577
—
denied,
U.S. -,
450,
cert.
(2003),
125
A.2d 1203
S.Ct.
(2004); Koehler,
A.2d at 233.
Many
arguments
raised
all
Appellant, including
relating
guilt phase
issues
to the
of the proceedings, involve
allegations
the ineffectiveness of counsel.31 In Common
Grant,
48,
(2002),
wealth v.
572 Pa.
On the same
as
this Court decided Common
Bomar,
wealth v.
573 Pa.
raised and Bomar, because, appellant in raised reached this conclusion motions, the trial court post-sentence claims in ineffectiveness on the claims evidentiary hearings a series of conducted raised, and, in Id. at opinion. addressed them its ultimately, Thus, the concerns articulated 853-54. we Grant—the claims develop of the defendant to his ineffectiveness ability court to consider them—were ability reviewing and the decisions, Id. of these implicated By way not Bomar. principle capital appel- became a fundamental rule” “Grant in the jurisprudence late Commonwealth. Bomar, in it case is similar to that was present
The
at the time
was decided.
appeal
on direct
Grant
pending
Bomar,
However,
court
not conduct an
unlike
the trial
did
claims
the ineffectiveness
evidentiary hearing
explore
on
pending
For those cases
were
by Appellant.
raised
filed, to
appeal
garner
at the time
was
capital
direct
Grant
of ineffective assis
capital appeal
on direct
of claims
review
counsel,
evidentiary hearing
must be both an
on
tance of
there
that tribunal
opinion by
the issues at the trial court and an
sub
there
judice
them. Because
the matter
addressing
deem
claims not
to be
evidentiary hearing,
no
we
these
to fall within
narrow
“properly
preserved”
raised
in Bomar. There
to the
rule” articulated
exception
“Grant
fore,
juncture.
decline to address them this
we
however,
the collateral
arguments,
during
free to raise these
Ramos,
review of his conviction. See Commonwealth
(dismissing
1198-99
ineffective
those
prejudice
appellant
claims without
raise
ness
to the
petition
pursuant
claims in a
filed
Post-Conviction
denied,
Act,
seq.),
§
9541 et
cert.
Relief
Pa.C.S.
(2004).
940, 124
1663,
impact impact evidence. Victim evidence evidence it statutory aggravating circumstance and cannot be a by reason itself to the death The introduc- impose, penalty. impact any way tion of victim evidence does not relieve of its burden to a reason- prove beyond able doubt at least one circumstance. You aggravating may impact determining consider this victim evidence in appropriateness penalty only you of the death if first aggravating find that the existence of one or more proven beyond circumstances has been a reasonable independent impact evidence, doubt from the victim jurors if one or more has or found that one more mitigating circumstances have been established preponderance of the evidence. Victim impact evidence simply informing you another method of about the nature may and circumstances of the crime You question. pun- an determining appropriate evidence consider this However, the life of one ishment. the law does deem *10 rather, another; impact than victim victim more valuable victim, defendant, like the is that the evidence shows limited to a Your must be individual. consideration unique defendant, an the culpability rational into the inquiry you The sentence emotional to the evidence. response you as I instruct in accordance with the law impose must be public emotion or sympathy, prejudice, and not based on solely impact. on victim opinion and not based charge Id. at also related that “while th[is] 158-59. We admitting goal ... it furthers the intended not mandated the eliminating poten- impact testimony, relevant victim while Id. at 158 jury.” to the impassioned appeals tial for emotional (emphasis supplied). trial court jury by
In instruction used the part, relevant of 42 statutory language in mirrors the presently this case 9711(d)(7) sug- we closely language § tracks Pa.C.S. the use in Means. discernable difference is only gested court by in the instruction the trial given of the word “shall” used “may,” as to the which this Court opposed word recommended instruction Means. A.2d at 158. This however, difference, light is immaterial in of our articulation the fact Means merely suggested that this instruction was “shall.” See uses the Pa.C.S. that the statute also word 9711(d)(7). Thus, there contrary Appellant argues, § what this no error the trial court on issue. that the instructions violat
Appellant
argues
jury
also
Amendments to the United
ed the
and the Fourteenth
Sixth
Constitution,
they
require
because
did not
States
the miti
outweighed
find that the
circumstances
aggravating
In support
a reasonable doubt.
beyond
circumstances
gating
Jersey,
v. New
Apprendi
cites to
argument, Appellant
of this
In Apprendi, the defendant fired several bullets into the home of an African-American that had family previously into an moved all-white neighborhood. *11 Thereafter, 2348.
S.Ct.
he pled guilty to various state firearm
offenses and
given
sentence,
an enhanced
pursuant
to a
state statute that allowed the sentencing judge to extend a
penalty beyond
prescribed
the
statutory
upon
maximum
a
a
finding, “by preponderance
evidence,
that the defen-
‘purpose’
dant’s
for unlawfully possessing
weapon
the
was ‘to
intimidate’ his victim on the basis of a particular characteristic
Id. at
the victim possessed.”
491,
Thereafter,
Ring v.
584,
536 U.S.
122
2428,
(2002),
S.Ct.
[i]n of a defendant’s guilt murder, of first-degree alone, the trial judge, sitting determines the presence or absence of the aggravating required by factors Arizona for imposition law of the death penalty.
600
rationale
Apprendi
2428.
588,
Applying
122
Id. at
defen
scheme,
“[cjapital
reasoned that
Ring
Court
this
to a
... are entitled
dants,
defendants
non-capital
than
no less
condi
any
legislature
fact on which
determination
589,
at
Id.
punishment.”
in their maximum
increase
tions an
as articulated
Ultimately,
(emphasis supplied).
2428
122 S.Ct.
Court,
Supreme
by
United States
subsequent opinion
in a
statute, Ring
Pennsylvania
penalty
death
analyzed the
not
that a
requires
jury,
Amendment
“held that
Sixth
circumstances,
aggravating
of any
find the existence
judge,
found,
preponderance
a mere
be
they
v.
evidence,
a reasonable doubt.” Sattazahn
beyond
but
732,
101, 113,
154 L.Ed.2d
123 S.Ct.
537 U.S.
Pennsylvania,
(2003) (describing Ring).32
Supreme
decided Schriro
Sum
Recently,
Slates
Court
the United
merlin,
wherein
159 L.Ed.2d
124 S.Ct.
542 U.S.
/Ring
Apprendi
to a case
application of
the retroactive
it addressed
involving
state conviction. Ultimate
review of
final
the federal habeas
procedural rule that
"Ring
ly,
held that
announced a
the Court
already
review.”
retroactively
cases
final on direct
apply
does not
at ---,
Summerlin,
Unlike the
601
Pennsylvania
scheme of
Presently, Appellant challenges
circumstances,
mitigating
and
because
weighing aggravating
that the
require
the statute
not
the fact-finder
decide
does
outweigh
mitigators beyond
a reasonable
aggravators
However,
before it can sentence a defendant to death.
doubt
Ring,
narrowly
jury’s
focused on a
Apprendi
as evident
any
and did not involve
fact-finding responsibility
question
“beyond
a reasonable doubt” standard
concerning whether
weighing
jury’s
aggravating
mitigating
to a
of the
applies
eligible
after the defendant has been found
for
circumstances
Moreover,
jury
if the
penalty.
engages
the death
even
(or selection)
weighing
in connection with the
factfinding
967,
v.
512
process,
generally Tuilaepa
California,
see
971-72,
2630, 2634,
(1994);
114
doubt. Pa.C.S. the circumstance, sentence jury the must aggravating one If circumstances. it finds no mitigating to death if defendant by a circumstance mitigating at least one juror finds any evidence, decide whether the must preponderance jury cir- mitigating the outweighs circumstance aggravating the 9711(c)(l)(iii). § 42 cumstance. Pa.C.S. weighing the regarding claim Appellant’s
As it relates to
deliberation, this
has
Court
penalty phase
process during
v.
rejected
argument
an identical
Commonwealth
already
denied,
(1997),
522
Bronshtein,
460,
cert.
Similarly,
Zettlemoyer,
it “fails
is unconstitutional because
the death
statute
penalty
circumstances must
that the
jury
aggravating
to instruct the
a reasonable
‘beyond
circumstances
outweigh
mitigating
”
fashion,
has
In like
this Court
III. Review of Sentence relief on not entitled to concluded that Having raises, Appellant’s must affirm of the claims that he we any of death unless we determine that the sentence was sentence *14 or other factor passion, prejudice, any arbitrary the of product that the fails to the support or unless we determine evidence at least one circumstance. 42 finding aggravating of See 9711(h)(3). § Pa.C.S. record, of the conclude that
Upon Appellant’s review we not the or product passion, prejudice, death sentence was of Furthermore, factor. conclude that any arbitrary other we finding the sufficient to the of three support evidence was (1) circumstances, peace the victim aggravating namely: was performance officer or law enforcement official killed the of (2) duties;34 her the committed the killing during perpe was (3) tration and created a felony;35 Appellant knowingly of death to another the grave person during killing.36 risk affirm the Accordingly, we verdict and sentence.37 Former ZAPPALA and did Chief Justice Justice NIGRO in the consideration or decision of this case. participate files a concurring opinion. Justice CASTILLE concurring Justice SAYLOR files a opinion. CASTILLE, concurring.
Justice
join
I
the Majority Opinion with the
of its merits
exception
discussion of appellant’s
penalty phase jury
novel and waived
claim,
instruction
is premised upon Apprendi
v. New
466,
2348,
530
120
Jersey,
U.S.
S.Ct.
36. 42 Pa.C.S.
(i),
§
Prothonotary
37. Pursuant
to 42 Pa.C.S.
of this Court is
hereby
complete
directed to transmit
record of this case to the
Pennsylvania.
Governor of the Commonwealth of
issue,
in 1996.1 As to this
there is no
tried and sentenced
was
trial was con
penalty phase
appellant’s
question
conformity
then-governing
in full
with the
law
ducted
sentence,
therefore, unquestionably
death
Appellant’s
land.
returned it.
legal
when
did not forward an
Majority recognizes
appellant
trial,
thus,
Ring-type
of claim at his
under
innovative
claim
retroactivity precedent, his waiver
should
settled
he
not entitled to the retroactive benefit of the
mean that
Tilley,
Ring
rule
appeal.
on this direct
Commonwealth v.
312,
649,
(2001);
566 Pa.
780 A.2d
Cabeza,
(1983);
see also Shea v.
228,
146, 148
Louisiana,
n.
1069 n.
470 U.S.
105 S.Ct.
(1985) (where
applies
L.Ed.2d 38
new constitutional decision
*15
it
must be
to
retroactively
appeal,
generally
applied
on direct
issuance,
at
of
but “sub
on direct review
time
pending
cases
waiver,
course,
established
of
harmless
ject,
principles
of
like”).2
breath, however,
error,
In the
next
very
and the
the retroactive benefit of the
Majority
appellant
affords
new
rule,
his
The Ma
despite
incontrovertible waiver.
procedural
Apprendi-h&sed
legal
that
claims
jority
“implicate
reasons
and,
reason,
operate
sentences
for that
must
ity”
existing
of
notes,
Majority
Apprendi rule was extended to defendants
1. As the
Ring
capital
Ring.
in
held that the Sixth Amendment entitles
in
cases
jury,
judge,
a
find the
capital defendants to demand
a
rather than
circumstances)
(such
aggravating
permit
which
an
existence of facts
as
beyond
punishment,
in
and that those facts be found
a reason-
increase
able doubt. 536 U.S.
Nevertheless,
603-09,
Of Court procedural retroactively view that its new rule rendered all subject to previously-issued capital challenges sentences it reached the sentencing “illegality,” opposite would have result and that all Summerlin would have dictated state capital sentencing proceedings subject were retroactive under Ring—unless High reevaluation we are to believe the it for thought constitutionally proper Court States to carry “illegal” out executions. Since the Court did not afford effect, its rule such retroactive there procedural global new no way pre-Ring rational sentence can be said to “illegal” by Ring. have been rendered in the primary Majority’s analysis flaw rests its assumption appellant erroneous has raised a “constitu- (and claim, “illegal”) tional” hence sentencing when the claim be deemed a one if may properly only appel- “constitutional” lant is entitled to the benefit of the Ring retroactive words, procedural rule. In other the Majority’s tautological conclusion that “constitutionality” “sentencing legality” are this implicated by begs predicate waived claim controlling question retroactivity. It is no to the answer retroactivity question to “but if the postulate: rule was retro- here, and if actively operable the derivative claim here did predicates have merit”—two essential that are missing—“ap- *16 pellant posing would be constitutional claim implicat- which sentencing ‘legality’ ed and therefore not be would waivable.”
I also respectfully disagree with the Majority’s implicit that all assumption “constitutional” claims affecting sentencing necessarily the of a In implicate “legality” sentence. support non-waiver, of this far-reaching assumption of the Majority 246, cites to a footnote in Aponte, Commonwealth v. 579 Pa. 800, (2004). 250 n. 1 A.2d 802 n. The footnote simply competing authority noted in this on the question Court of Apprendi-based whether constitutional challenges to sen- implicate sentencing legality, tences and therefore are non- waivable, ultimately to reach the electing underlying merits conflict. procedural to resolve purporting
issue without this his concerns with had earlier noted Saylor Mr. Justice illegal sentence concerning precedent uncertain Court’s order in to the curiam per and in his dissent doctrine waiver Pa. A.2d 202 v. Wynn, and, in a in by majority Aponte); (Wynn was discussed accu- Saylor in Justice concurring opinion Aponte, separate to resolve” his did not “undertake rately Aponte noted that J., (Saylor, concurring). at 816 concerns. 855 A.2d the uncertain- addressing in separately Aponte, I also wrote illegal concerning law complexity Pennsylvania and ty (Castille, J., I concurring). Id. at 812-16 sentence doctrine. and not be deemed monolithic that the doctrine should noted consider- countervailing account for all relevant should ations: for a be offered “illegal” may claim that a sentence is
[A]
abject
on direct
an
waiver
variety
negate
of reasons:
of a
here;
review
appellate
to secure substantive
appeal, as
restrictions, as in
statutory
preserved
light
claim
141,
Logically, question sentencing when should be deemed to be of such fundamental importance as to existing procedural defeat defaults should depend upon specific balance of the nature of the claim forwarded and the statute, judicial rule or specific default doctrine which would negated by judicial be I consideration of the claim. would reject the blanket flatly notion that if a claim sentencing is deemed to implicate “legality,” necessarily it all suspends countervailing considerations. I would that sort reserve status to those sentencing few claims fall within the i.e., traditional realm of may what be called the “illegal”: challenge those which sentences exceeding very jurisdic- tion or power of the court. sentencing A.2d In coming to terms with the far-reaching implications of the Majority’s summary holding relaxed waiver it is today, impor- tant recognize the sole reason the court Aponte Aponte’s assumed that claim Apprendi implicated the legality rather, his sentence specific Apprendi, but involved broader that all assumption constitutional sen- claims are tencing non-waivable. The Majority’s non-nuanced application of the assumed holding Aponte has created the relaxed following waiver rule: “constitutional” challenges sentences automatically implicate sentencing legality waived, therefore cannot be if even challenge premised upon new rule of effect. only non-retroactive Since the *18 are bind this Court Court which
rulings
Supreme
of
U.S.
issues,
every new
apparently
constitutional
involving
those
global
be
sentencing
given
in the
arena will now
decision
such
Court,
specific
in the face of
this
even
retroactive effect
appropriate
that no such effect is
High
from the
Court
rulings
in Penn-
sentencing proceeding
concluded
Every
or required.
upon
based
reinterpretation
sylvania is now vulnerable
issuing
rule
from
non-retroactive constitutional
every
new
Court.
High
holding
Majority’s
that the
relaxed waiver
noting
It bears
claims in this case is
sentencing
constitutional
respecting
other,
from
very-recent precedent
inconsistent with
squarely
Cox,
Thus,
581 Pa.
in Commonwealth
this Court.
(2004),
sounding
a claim
under
this
held that
A.2d 536
Court
1860, 100 L.Ed.2d
486 U.S.
108 S.Ct.
Maryland,
Mills
direct
appeal,
at trial or on
unpreserved
which was
A.2d at
for
of the PCRA. 863
purposes
deemed waived”
“is
governing
rule
procedural
Mills established
new
553-54.
the non-
capital
(specifically,
of
cases
sentencing phase
jury’s weighing mitigating
in the
requirement
unanimity
circumstances).
that constitu
Majority
If
is correct
today’s
sentencing “implicate
legality
affecting
tional claims
waived,”
...
at 600-01 n.
op.
cannot be
sentence [and]
th[e]
that a Mills claim
holding
n.
then Cox’s
It in cases like this one becoming increasingly apparent is finds song tempted that the Siren’s relaxed waiver still hoc, issue, by on this ad issue return willing ears Court. Our in create to the doctrine—in a footnote no less this case—will It ill- particularly much as did the former rule. is as havoc this, in a such to reestablish the doctrine case as advised for a concluded and trial to be evaluat- proper it allows where govern rule did not exist and did not at the ed a new which time of the trial. the ultimate result in this case Although harm, sen- Pennsylvania’s capital causes no immediate since tencing obviously comports Ring, very ap- scheme with arbitrary havoc proach may itself flawed well work the next new rule is at issue. when discretionary
I
that the
relaxed waiver doctrine is
recognize
in
capital appeal,
available
this direct
since
briefs were
filed before this
issued its decision Commonwealth v.
Court
Freeman,
prospective-
573 Pa.
It a waiver where the thing is one overlook law, employ another to quite claim involves settled but operate an rule of law to entirely doctrine allow new conducted properly the fairness of a trial impeach above, I noted under the then existence. As have law rule of unless a rule is the sort of watershed procedural has held is Supreme criminal Court procedure which effect, the should presumption entitled to “full” retroactive only remain that retroactive is available where application and his case is still preserved specific argument defendant that, for In this it is notable appeal. regard, on direct pending *20 convictions, of federal habeas review of state purposes corpus held that the fact that this Court Supreme the U.S. Court has belatedly to reach a claim raised employed relaxed waiver not Maryland, supra, preserved under Mills v. which was did not absolve the Third pre-Mills, when the case was tried rule from to determine that federal having Circuit whether be deemed See properly retroactively applicable. should Banks, 266, 2147, 301 Horn v. 153 L.Ed.2d U.S. S.Ct. curiam). case, In in the Banks (per appeal a later time, holding High Court reversed the Third Circuit a second rule; subject a that it not procedural Mills was new employed and thus it could not be application; retroactive conviction secured Pennsylvania to overturn a which was Banks, before See Mills was decided. Beard v. 542 U.S. 2504, 159 (2004). L.Ed.2d In relaxed construing waiver, I think this Court should similar employ approach: procedural rule of federal be constitutional law should retroactively applicable deemed only instances where require Court would it Supreme operate. to so Since this instance, case pose does not such an this Court should of appellant’s Ring reach the merits belated claim. SAYLOR, concurring.
Justice
join
I
majority opinion.
respect
With
to the matters
deferred to post-conviction
pursuant
review
to Commonwealth
Grant,
however,