*1 Kaufman, A. Mink- Marjorie Ruffner, A. Mitchell M. Susan D.J. ler, appellant, for Pittsburgh, of PA. Com. Preuhs, Pittsburgh, Sandra ZAPPALA, CAPPY, C.J., FLAHERTY, Before SAYLOR, NIGRO, JJ. CASTILLE, NEWMAN ORDER PER CURIAM. October, 2000, appeal is NOW, day 19th
AND
granted.
having
improvidently
as
been
dismissed
Taylor Spotz. P. Newton Keating, for Com. M.L. Ebert and Jaime M. Graci, A. Gen. Atty. for Office
Robert FLAHERTY, CAPPY, C.J., ZAPPALA, and Before SAYLOR, NIGRO, CASTILLE, JJ. NEWMAN OPINION CASTILLE, Justice. imposed by is a from a sentence death appeal
This direct Follow- County. the Court of Common Pleas Cumberland trial, May a commenced on ing capital jury which At the first-degree penal- was convicted of murder.1 appellant phase, aggravating found three circumstances ty circumstances, aggrava- and also that the mitigating two found circumstances; mitigating ting outweighed circumstances it a sentence of death.2 Post-verdict accordingly, returned court the death imposed motions were denied and trial § 18 Pa.C.S. 2502. appellant kill- aggravating were that committed a 2. The circumstances 9711(d)(6); felony, § ing perpetration of a see Pa.C.S. while in the felony involving significant history appellant had convictions 9711(d)(9); person, § id. the use or threat of violence murder, either appellant of another committed had been convicted 1). issue, (d)(l § The before or at the time of the offense id. neglected during appellant his mitigating were that circumstances poor upbringing parents. Id. childhood and had 9711(e)(8). *5 274 below, For
penalty. the reasons set forth affirm we now judgment conviction and of sentence.
Although has not challenged the sufficien evidence, of the cy Court a performs self-imposed duty sufficiency review the underlying the evidence the first- degree murder in capital conviction cases. See Common 16, 3, Zettlemoyer, 937, wealth v. 500 n. Pa. 26-27 454 A.2d 942 (1982), denied, 970, 3 2444, n. cert. 461 U.S. 103 77 S.Ct. 1327, denied, 1236, L.Ed.2d reh. 31, 463 U.S. 104 77 S.Ct. (1983). 1452 L.Ed.2d reviewing sufficiency evidence, we must determine whether the evidence admitted trial, at all therefrom, reasonable inferences derived when in light viewed most favorable to the Commonwealth as winner, supports jury’s verdict finding all of the elements of the offense a beyond reasonable doubt. See Rhodes, 537, 539-40, 1217, Pa. 510 510 A.2d (1986). 1218 Evidence is sufficient to sustain a conviction of first-degree murder where the Commonwealth establishes that kill, the defendant acted with the specific intent to a that being killed, human unlawfully was person accused the killing, did and that the killing premedita was done with tion or 2502(d); deliberation. See 18 Pa.C.S. Common Mitchell, 546, 550, (1991). wealth v. Pa. A.2d 626 specific A- kill intent be may proven by circumstantial evidence; it may be deadly inferred the use weapon upon part a vital of the victim’s body. Commonwealth Bond,
The evidence at adduced trial showed on Febru ary 1995, appellant, on who was run committing after multiple counties, homicides in other Pennsylvania arrived Harrisburg unsuccessfully attempted rings to sell stolen from previous friend, one of his victims Juan Maldona do. Appellant told that he Maldonado was wanted on a charge Schuylkill homicide County gun and that his dropping Maldonado, them like flies. leaving After and some time 4:00 p.m., appellant before abducted elderly Betty Harrisburg.3 Over next home in or near her Amstutz at with Ms. Amstutz hours, places to various appellant drove few lodging by obtaining money, clothing, hostage, being held Thus, account. 3:59 checking credit card and use her check for cashed a employee Harrisburg, p.m. $500 bank A bank Amstutz, accompanied by appellant. who Ms. *6 At approximately filmed the transaction. security camera in store Cumberland sporting goods a p.m. employee an worth of and Ms. Amstutz appellant sold County, $262.05 awith credit purchased which Magic products, were Orlando of a p.m. employee Amstutz. At 5:26 an belonging card to Ms. bank, in the amount of another check Camp Hill cashed $1,139.95 security Amstutz. A bank appellant and Ms. p.m., at 6:04 Finally, filmed that as well. camera transaction Inn in Knight’s into the appellant Ms. Amstutz and checked Carlisle, using Amstutz’s credit card. Pennsylvania Ms. thereafter, woman p.m. at 6:30 a Shortly approximately Carlisle, Gap on Road in driving her were McClures daughter standing male near a they where saw a white Pennsylvania, of the vehicle owned Ms. matching description car where Ms. parked Amstutz. The car was at location day.4 the next body Amstutz’s lifeless discovered friend, a Caroth- appellant Charles evening, Later ers, Rhinehart, mother of two appellant’s Michelle invited children, at Inn in join Knight’s his room the appellant There, and Rhinehart smoked Carlisle. Carothers appellant, gave then purchased by appellant. Appellant crack cocaine Amstutz’s car to Caroth- gave cash to Rhinehart and Ms. $200 hotel room appellant Rhinehart and ers. Carothers left part by the fact 3. The time frame for the abduction was established refrigeration investigators groceries requiring on Ms. Am- found tape receipt a stutz’s kitchen counter. The Commonwealth introduced grocery indicating purchases were that her made on from a local store February p.m. at 3:15 familiarity appellant’s proving with 4. Other evidence was introduced body appellant Specifically, the area where Ms. Amstutz’s was found. bridge met a previously had received a traffic citation and friends on on arrest, falsely having denied ever been on that road. After the road. and drove in Ms. Amstutz’s car to apartment of Rhine- hart’s sister and her friend.
The next morning, an employee of a tree service accidental- ly discovered Ms. body Amstutz’s on the side of Gap McClures Road and local contacted authorities. investigated Police scene and broadcast information concerning Ms. Amstutz’s missing vehicle. Later that morning, Rhinehart’s sister and her friend were en route to the Inn Knight’s to pick up appellant, Rhinehart and at Carothers’ request. The police stopped them because their vehicle matched the description of Ms. Amstutz’s vehicle. Police learned from the two women that appellant was staying Knight’s Inn.
Thereafter, a police team appellant’s surrounded hotel room and, standoff, after a lengthy appellant finally tossed his silver nine-millimeter pistol room, semiautomatic outside of the hotel surrendered and was A arrested. subsequent search of the hotel room yielded pair jeans, knife, bloodstained nine- millimeter full jacket ammunition, metal and five credit cards issued in the name of one of appellant’s previous murder *7 victims, Penny addition, Gunnet. a note written by appel- recovered, lant was which itemized the money appellant had stolen and his expenditures on crack cocaine and other pur- chases. note, At the bottom of written, appellant had a good day’s work.
An autopsy performed on Ms. Amstutz showed that she had times, been shot nine including one lethal shot through the neck and another lethal shot to the head. A ballistics test showed that the full jacket metal bullets recovered at the scene of the murder and from Ms. Amstutz’s body matched appellant’s handgun.5 Furthermore, appellant’s fingerprints were found on Ms. Amstutz’s analysis vehicle and an of blood found on appellant’s shoe was consistent with Ms. Amstutz’s blood.
Christina Noland established the chain of events that led to appellant’s in presence Harrisburg and his motive for abduct-
5. The bullets used to kill Ms. Amstutz also matched those that were
victims,
appellant’s
used to
previous
kill
three
Spotz, Penny
Dustin
Ohlinger.
Gunnet and June
January
Noland
Ms. Amstutz. On
ing
executing
and
in
mother’s home
had
from appellant’s
and
fled
appellant
brother, Dustin,
had shot his
County
appellant
after
Clearfield
escape, appellant
fight.
In need of a vehicle
during family
Schuylkill County,
in
Ohlinger
and Noland abducted June
then
her. The two
fled
stole her car and later murdered
Delaware,
car,
in
Beach,
they
where
Ohlinger’s
Rehoboth
appellant
and
Noland
attempted
appearances.
to alter their
they
where
Pennsylvania,
County,
then returned
York
car,
Gunnet,
murdered her.
stole her
and
Penny
abducted
murder,
separat-
appellant
Noland and
became
Following
to the home of
friend.
ed and Noland returned
overwhelmingly supports
jury’s
The foregoing evidence
killed,
appellant
that
unlawfully
Ms. Amstutz was
finding that
specific
acted
with
killing,
committed
times,
kill
Ms. Amstutz nine
and
intent to
when he shot
We
killing
premeditation
was done with
deliberation.
allegations of error.
proceed
appellant’s
now
to address
court
Appellant first claims that
the trial
erred
him
charges
pursu
denying
against
his motion to dismiss the
Pa.C.S.
110.
joinder
compulsory
provision
ant
the court should have dismissed the
Appellant maintains that
charges
logically
temporal
here because this murder was
Schuylkill,
York
to crimes he earlier committed
ly related
Appellant essentially argues that
and Clearfield Counties.6
crimes
prior
factors that made
his
the same
required
trial
also
a conclusion
relevant to the
of this matter
involuntary
Appellant
manslaughter
Clearfield
convicted
brother,
Appellant
County, arising
killing of
from the
Dustin.
killing
separately,
to death for
then tried
convicted
sentenced
Ohlinger
Schuylkill County.
affirmed the death
June
This Court
Spotz,
A.2d
sentence. See Commonwealth
*8
I).
(1998) (hereinafter
Appellant
Spotz
was later convicted of first-
County
degree
for the
murder in York
and sentenced
death
murder
Penny
Court likewise affirmed that death sentence.
Gunnet. This
II).
(Pa.2000) (hereinafter Spotz
Spotz,
To determine whether various acts constitute a single
episode,
criminal
a court must consider
logical
relationship
and the temporal relationship
II,
between the acts. Spotz
supra; Bracalielly,
supra,
However,
prior killings
admissi-
the mere fact that
essentially
their
limited
does
alter
purposes
ble here for
four different vic-
killings involved
nature. The
independent
counties,
tims,
occurring
days,
in four
on different
committed
investigations.
criminal
The
four
generating
separate
and
81, 1995, in
January
on
Clearfield Coun-
killing
first
occurred
family
during
argu-
his brother
ty,
appellant
when
killed
1, 1995, in
February
occurred on
killing
ment. The second
fleeing Clearfield
County,
after
Schuylkill
appellant,
where
stole her car and murdered
County,
Ohlinger,
abducted June
murder,
appellant
that
and Noland fled
Following
her.
Beach,
to York
They
County,
Delaware.
returned
Rehoboth
they abducted
Pennsylvania,
February
on
where
Gunnet,
mur-
appellant ultimately
stole her car and
Penny
Gunnet,
Ms.
murdering
appellant
her. After
fled
dered
Amstutz,
Noland,
her
without
abducted Ms.
stole
Harrisburg,
victim,
car,
from the
and
get money
lodging
used her to
primarily
The
are
connected
killings
logically
then killed her.
all
that
committed
four of them.
by
appellant
fact
Furthermore, although
important
was an
witness at
Noland
trials,
other, equally important
all three
there were
capital
only
proving
who
witnesses here
testified
Thus,
Ms. Amstutz.
the Commonwealth
appellant murdered
appellant
to establish that
was seen
called numerous witnesses
murder,
matching
a man
prior
with Ms. Amstutz
to her
standing
seen
near
vehicle
appellant’s description was
body
location
her
matching Ms. Amstutz’s at the
where
dead
found,
staying
Knight’s
later
was
at the
was
and that
Moreover,
unique
killing
Inn.
to this
investigation
an
officials,
law
which resulted
conducted
local
enforcement
testimony
investigating officers and authorities.
from different
applicable
II is
here:
Spotz
equally
What this Court noted in
this is not a case in which the Commonwealth relied solely
witness(es)
upon the same
prove
each of the killings.
Instead,
the cases generated
testimony
lay
different
police witnesses as well as the establishment of separate
II,
chains of custody. Spotz
supra,
1158-59. Accordingly,
there was not such a
duplication
substantial
of issues of law
fact
and duplicative witnesses in the four cases that
joinder
required.
See also Commonwealth v. Anthony,
*10
55, 64,
1015,
553 Pa.
(1998);
A.2d
Bracalielly, supra,
472,
at
Appellant also argues joinder required by this Court’s in holding Commonwealth v. Hude. rejected We a similar argument in II. Spotz That analysis need not be repeated here. It is enough to note that the killings of separate beings human here cannot be compared to the ongo- ing, indistinguishable drug II, sales at in issue Hude. Spotz at supra, 1159. Accordingly, the trial court in did err denying appellant’s motion to dismiss charges pursuant the to joinder the compulsory requirements §of 110.
Appellant next contends that the trial court abused its discretion in failing to issue an advance cautionary instruction regarding the limited admissibility of the evidence of the previous killings. proffered Where the evidence of other extensive, crimes is appellant argues, waiting until the court’s final charge to caution jury the is improper.
This Court has held that a limiting
may
instruction
be given
either as the evidence is
or
part
admitted
as
of
general
the
charge.
Covil,
378 A.2d
(1977).
1119(d)
Rule
of the Rules of Criminal Proce-
dure,
Covil,
adopted after
likewise states that a trial judge
may give instruction to the jury before the taking of evidence
or at any time during the trial as the judge deems necessary
appropriate
jury’s guidance
the
in hearing the case.
1119(d).
Pa.R.Crim.P.
The Comment to the Rule
reaffirms
that the determination of when
charge
jury
the
is discre-
tionary with the trial court: It is intended that the trial judge
determine on a
case
case basis whether instructions before
anytime during
appropri-
at
trial are
of
or
taking
the
evidence
in
case.
hearing
assist
the
necessary
or
the
ate
Furthermore,
expressed
in
a prefer-
the Court Covil
although
a
instruction
the time
give limiting
trial
ence that
courts
introduced,
possible,
approved
Covil itself
is
where
evidence
issuing
charge.
case to
postpone
in that
determination
at 846.
474 Pa. at
extensive,
in
case indeed was
The other crimes evidence
In
multiple
witnesses.
involving
previous crimes
multiple
addition,
variety
for a
of relevant
the evidence
admissible
motive,
i.e.,
intent,
se-
identity, and the
prove
purposes,
ultimately
of
the court
instructed the
quence
events—as
that,
The trial
here determined
closing charge.
in its
court
evidence and
number
complexity
because
it,
confusing
it would be
presenting
witnesses involved
admissibility
on
limited
instructions
repetitive
give
In
holding,
as it was introduced.
so
particular
upon
Superior
Court’s decision
the trial court relied
Enders, 407
7. We also note that that the was unaware purpose charge evidence final is not the limited of the until the court’s statement, entirely opening true. the Commonwealth made its present, noting would that it reference the other crimes evidence it help point prosecutor suggest that would motive. At no did the show proved fact propensity to have a for crime. The the evidence In a related argument, appellant next complains that the trial court’s instruction concerning the other crimes evi dence was defective because it over-emphasized the relevance of the evidence rather than emphasizing the caution with which jury Appellant that, should consider it. argues being instruction, rather than a cautionary limiting the court’s wrongly instruction elaborated on the value of the evidence to the Commonwealth.
An instruction will be if upheld clearly, it ade quately and accurately reflects the law. Commonwealth v. Hawkins, The trial may court use its own form of expression explain difficult legal concepts jury, to the as long as the trial court’s instruc tion accurately conveys the law. Id. There was no error in the comprehensive instruction here. The Court began the charge by noting the single, improper purpose for which ie., evidence, could not consider the to show bad character or criminal propensity. Part parcel of any instruction as to what use of the evidence could be made was guidance as to proper purpose for which it be could considered. Those ie., purposes intent, concepts, etc., motive were not self- explanatory, but required Appellant elaboration. does not dispute that the evidentiary purposes outlined the court’s charge here were both applicable and accurately described. Instead, his complaint appears to be that the instruction was too accurate. Because the instruction accurately explained the purpose for could, which the not, and could be considered in light circumstances, it was not erroneous. Accordingly, claim appellant’s fails.
Appellant’s remaining three claims concern penal First, ty phase. appellant contends that the trial court erred penalty its phase instruction to because it consoli dated six mitigating circumstances urged by the defense into four. At penalty phase, appellant had invoked three *12 employed, the evidence was not argued, or improper for an
purpose is jury, further reason to trust that presumed the which is to Baker, have charge, followed the did so here. See Commonwealth v. (1) he the circumstances: was under statutory mitigating (2) disturbance;8 his or influence of extreme mental emotional of his conduct or criminality capacity appreciate substantially impaired;9 to the law was conform his conduct (3) addition, time of offense.10 In and his at the age circum- argued jury mitigating to the other six appellant i.e., provision, statutory catchall falling stances under mitigation concerning the character [a]ny other evidence circumstances of his record of the defendant and the and 9711(e)(8). § were The six circumstances offense. Pa.C.S. (1) during his formative neglect that: he suffered extreme (2) his and older physical he abuse from father years; suffered (3) brother; his actively by anti-social behavior taught he was (4) was years; and his formative he stepfather mother mother by stepfather; the treatment he needed his and denied (5) need; despite history, helped his he has others difficult (6) writer. re- Appellant and he was a talented artist and other be mitigating these six circumstances quested jury charge printed in the enumerated court’s specifically simply The trial court elected not to slip. on verdict circumstances, appellant’s mitigating list of reproduce alleged specific statutory four charged but instead on the In mitigators, including speaking the catchall provision. some, all, court but provision, the catchall listed jury.11 counsel had to the The court argued six circumstances however, it careful to that the circumstances emphasize, was listed were not the exclusive circumstances consider under provision. addition, catchall court instructed argument respect miti- consider counsel’s with to the gating factors. that the court’s failure to
Appellant specifical- contends trial by track his one of the ly argument listing every each 9711(e)(2). § 8. Pa.C.S. 9711(e)(3). § Id.
9. 9711(e)(4). Id. (1) during appellant neglected 11. The trial court listed four factors: childhood, receive; (2) including any appel- he failed to his treatment abused; (3) appellant poor upbringing physically had a lant (4) helpful to parents; could have been others. *13 284
mitigating argued circumstances he had infringed upon the province jury to decide the circumstances mitigating and, thus, Eighth violated the and Fourteenth of Amendments the United States Constitution. This claim is meritless.
This
has already recognized
Court
that the trial court does
not unconstitutionally
range
mitigating
limit the
of
circum-
jury
accurately
stances to be considered
when it
statutory
describes the relevant
mitigating circumstances
9711(e),
§
found at 42
jury
Pa.C.S.
and also instructs the
on
Williams,
mitigation.
the catchall
532 Pa.
(1992).
Williams,
716,
615 A.2d
723
the defendant
mitigating
had invoked as a
circumstance that he had acted
under
or
extreme duress
under the substantial domination of
9711(e)(5).
person.
§
another
42 Pa.C.S.
He maintained that
court’s charge,
statutory
which tracked the
language,
unconstitutionally
range
mitigating
limited the
circum-
Williams,
279,
stances that
jury
supra
could consider.
at
claim,
rejected
Id. in (emphasis original). This specifically Court further presumed noted that it is that the jury clearly will follow the open-ended nature of the reference to ‘any other evidence of (e)(8). in mitigation’ Id. at 615 at A.2d 723-24. See also Commonwealth v. Jermyn, 849 A.2d Pa. Jasper, Similarly, Commonwealth mitigating (1992), had claimed that the defendant in the argued specifically he had was not enumerated included the catchall but under charge, rather Court’s 9711(e)(8). held that unequivocally This Court provision specifically reiterate required court was not the trial arguments mitigation: defendant’s ... to a obligate specify a court To seek of the other equal part must be an mitigation ‘anything’ is to en- circumstances remaining mitigating enumerated *14 elementary For most in frivolous doubletalk. the gage sense, an consider- is itself enumerated ‘any other’ plain employs our say statutory .... That is to that scheme ation tricks, to designed or barriers of sort gimmicks any no of which presentation mitigating the full evidence frustrate un- by an against aggravating is balanced circumstances jury. bound 11-12, 610
Id. at A.2d at Here, clearly trial the relevant charge the court’s tracked alleged in this case: statutory mitigating circumstances was the influence one is the defendant under The first Two, the or emotional disturbance. of extreme mental his criminality of appreciate of the to capacity defendant to of requirements or to his conduct conduct conform Three, impaired. age substantially the law four, any at the the crime. other defendant time of And and record mitigation concerning character evidence of offense, circumstances his defendant, and the neglect- but not to that the defendant was including limited childhood, any failed to including his he during ed treatment abused, receive, that the that the was physically defendant that the poor upbringing parents, defendant had helpful could to others. Consider defendant have been ... all these argument respects. counsel’s in that —in added). The trial court (emphasis at 1909-10 N.T. 5/16/96 jury any other instructed the consider specifically thus and record mitigation concerning character highlighted representative trial court the defendant. The samples of appellant’s arguments and made clear that those examples exclusive, were and emphasized that the jury was to appellant’s consider counsel’s arguments respecting mitigation. regard only alleged With mitigating factors enumerate, i.e., that the court did not specifically appel- lant supposedly was a talented artist and that his family had him, mistreated the court never appellant’s limited counsel’s ability to vigorously argue points those jury.
There was no error here. fully The and accurately charged. No limitation was placed upon its consideration of mitigating circumstances. no Accordingly, relief is warranted on this issue.
Appellant next contends that the trial court’s pen alty phase definition of the preponderance term of the evi dence, in explaining appellant’s burden of proving mitigating circumstances, was erroneous. According appellant, court’s charge failed to adequately convey the difference be tween the Commonwealth’s (beyond burden a reasonable doubt) and his (preponderance). burden When reviewing instruction, challenge to a we must charge review the as a Jones, whole. See Commonwealth v. viewed, So there was no error here.
The trial court gave following the regarding instruction the relative burdens of proof borne by the Commonwealth and appellant at the penalty phase:
The Commonwealth prove any must aggravating circum- beyond stance a mean, reasonable doubt. This does not as I before, you told that the Commonwealth prove must the aggravating beyond circumstance all doubt and to a mathe- matical certainty. A reasonable doubt is the kind of doubt that would cause a reasonable and sensible person to hesi- tate acting upon before an important matter in his or her own affairs. A doubt[,] reasonable doubt must a real it be. may not juror be one that a imagines or makes up to avoid carrying out an unpleasant contrast, duty. By the defen- dant must prove any mitigating However, circumstances. the only defendant has to prove those circum- mitigating
287 That the by the is evidence. by preponderance stances a the evidence. greater weight emphasized the The court further at 1905-06. N.T. 5/16/96 burden, higher as follows: Commonwealth’s cir- mitigating aggravating This different treatment against unjust safeguards one of law’s cumstances is the any full benefit of gives It a defendant the death sentences. It is related the bur- closely circumstances. mitigating Remember, the Commonwealth requirements. den of proof beyond a reason- prove any aggravating must circumstance prove any has to only able the defendant doubt. While of the by preponderance a evidence. mitigating circumstance N.T. at 1912. 5/16/96 to cases the cites where assailing charge, a that was preponderance
trial court stated the standard But has that suggested lesser this Court never that burden.12 contrary, To the in Com- particular language required. Hall, (1997), Pa. 190 we monwealth v. A.2d materially a rejected charge, claim that indistin- specifically above, charge of the guishable quoted portion from the first clarify it that is a preponderance was defective because did held than doubt. We that the lesser standard reasonable Hall, terse, because, charge though adequate issued mitigating the circum- trial court instructed [t]he only stances be of the proven preponderance need that a exists when evidence preponderance evidence and greater weight for the is than proposition proven be Hall, supra against proposition. accurately charge A.2d at 208. The here likewise defined preponderance of evidence.
Moreover,
stronger
the instruction here was
than the
charge
quoted portion
charge,
In the
Hall.
second
trial court
contrasted the relative burdens of
specifically
appellant by reminding
Commonwealth and
prove any aggravating
must
circumstance be-
Commonwealth
See,
Wilson,
(1994);
e.g.,
Finally,
language
in
used
the trial
charge
court’s
virtually identical to
charge
in
issued
Commonwealth v.
Williams,
207,
(1999).
557 Pa.
Appellant last contends that
the trial court should
have
the'jury
instructed
at the penalty phase, pursuant
Carolina,
Simmons v. South
154,
2187,
U.S.
114 S.Ct.
(1994),
L.Ed.2d 133
that there is no parole from a sentence of
life imprisonment in
A
Pennsylvania.
instruction,
Simmons
detailing what a life sentence means in Pennsylvania, is re
quired only if the prosecution makes the defendant’s future
dangerousness an
issue
the case and the
specifi
defendant
cally requests such an
Smith,
instruction. Commonwealth v.
219, 242,
1221, 1232
544 Pa.
(1996),
Chandler,
Here,
A.2d
Appellant attempts
13.
distinguish
ground
Hall on the
that it involved
counsel,
a claim of ineffective assistance
appellant preserved
while
objection
here. The Williams case also involved a claim of ineffec-
tive
Appellant’s
assistance.
distinction fails. The ineffectiveness claim
rejected
precisely
charge
Hall
accurately
because the
correctly conveyed
to the
its
determining
task of
aggravating
if an
mitigating
or
proven.
circumstance was
289 a Simmons conjunctive predicates requiring of neither the that the concedes both Common- Appellant exists. instruction that never dangerousness and he argue did not future wealth did err The trial court not charge. a Simmons requested was not entitled to and did charge appellant to a failing issue request.14 not statutory of this Court must conduct a review
Finally, to of 42 Pa.C.S. Pursuant the version the death sentence. 9711(h)(3) this Court must affirm appeal, § to this applicable that: of unless we determine the sentence death (i) passion, preju- of product of death was the the sentence factor; (ii) fails dice, the evidence any arbitrary or other or circum- findings aggravating of at least one support to the (iii) (d); the of or sentence specified stance subsection im- penalty or to the disproportionate is death excessive cases, considering the circumstances in similar both posed of the character record defendant. crime below, After we conclude that reviewing Id.15 the record or prejudice imposed product passion, sentence was not the of also conclude that the evi any arbitrary other factor. We factors aggravating was dence sufficient establish three a while by jury: killing found committed appellant a significant of a had perpetration felony;16 prevail, Appellant argues notwith- that his Simmons claim should necessary standing predicates, under relaxed the absence of the our supra. capital appeals. Zettlemoyer, waiver rule in case direct See applicability obligation court's Relaxed waiver has no here. The trial charge only triggered upon the existence of twin issue Simmons is issue, i.e., requirements, dangerousness being placed at and a future procedural not request. requirements, defense These are substantive Appellant’s fails on the merits. ones. Simmons claim the General Assembly repealed 42 Pa.C.S. 15. Effective June l(3)(h)(iii), proportionality required. pursuant § However, review to which is proportionality all on direct we continue review for cases prior imposed date. appeal in which the sentence of death to that Gribble, (1997) (Act 28 Pa. A.2d 426 See Commonwealth retroactively). apply does not charges kidnap- apparently pursue did 16. The Commonwealth vehicle, robbery penalty court ping, robbery or of a motor but the at the those phase fully properly on each element of instructed history convictions;17 of felony and that appellant had been convicted of murder, another committed either before or at time the offense at issue. respect
With to proportionality, since found that aggravating three circumstances outweighed the two miti circumstances, gating it statutorily required impose 9711(c)(l)(iv). sentence of death. 42 Further, Pa.C.S. we have conducted an independent review similar cases and reviewed the data collected the Administrative Office of the Courts, Pennsylvania which reveals that the sentence death was not disproportionate to the penalty imposed in similar *18 Williams, cases. See e.g., 554 Pa. (1998); Bond, A.2d 679 supra.
Accordingly, we affirm the verdict and sentence of death imposed upon appellant by the Court of Common Pleas of County.18 Cumberland
Chief Justice FLAHERTY files a concurring opinion. Justice NIGRO files a concurring opinion.
FLAHERTY, Justice, Chief concurring. A jury with the weighty responsibility of deciding whether one or lives is to put death certainly should be made aware of what is by meant life parole without in commonwealth, thus, I although join the majority, I write once again to express my view that a Simmons type instruction should be in given all capital cases.
felonies and that the Commonwealth bore the proving burden of these beyond elements a reasonable doubt. Appellant prior had three robbery, prior convictions for one convic- conspiracy tion for robbery, to commit and three burglary. addition, he aggravated was convicted of involuntary assault and man- slaughter regard with killing to the of his brother and he was convicted first-degree murder Ohlinger in deaths of Penny June Gunnet. Prothonotary 18. The of this Court is directed to transmit to the Gover- trial, complete nor's office a full and record sentencing hearing, imposition of sentence and Supreme review the pursuant Court to 42 l(i). Pa.C.S. NIGRO, Justice, concurring. separately only join majority opinion
I but write he claim that regarding Appellant’s my position clarify penalty hearing. to a Simmons instruction entitled law, compelled agree I am state of the Under the current failing court trial did err majority with the case, Appellant as in the instant issue a Simmons instruction an instruction nor did Commonwealth request did not such However, dangerousness. future Appellant’s raise the issue of fully my concurring opinion explained for the reasons more Clark, 258, 710 A.2d 43-44 v. Commonwealth approach would be (1998), I to believe that better continue in all give capital a standardized Simmons instruction cases. A.2d 367 Pennsylvania, Respondent,
COMMONWEALTH LUDOVICI, John Petitioner. Pennsylvania. Supreme Court of *19 27, Sept.
ORDER PER CURIAM: NOW, September,
AND 27th the Petition day GRANTED, Appeal hereby for Allowance of is order Court is REVERSED on the basis Com Superior (1998) A.2d 1242 Randolph, monwealth (1973), Forbes, Pa. A.2d