*1 mercy dispensing power, jury’s such Absent exposure. jury’s sentencing decision as to defendants would both governed has legislature considerations the deemed relevant appropriate. subsequent restraint jury’s sentencing discretion comes too late process, which has been tainted the earlier unfettered discretion.
Argued March 1983.
Reargued Sept. 1983. April
Decided *5 Uniontown, Dedola, for (court-appointed), Jr. Anthony S. No. 42. at appellant Defender, Jr., First Asst. Public Lepore, P.
Alphonse Uniontown, at No. Solomon, Davis, R. Dist. T. Atty.,
Gerald Samuel J. James *6 Davis, Uniontown, Zeglen, M. Asst. Attys., John Dist. appellee. ROBERTS, C.J., NIX, LARSEN,
Before and FLAHER- jj. TY, zappala, McDermott, hutchinson and OF THE OPINION COURT LARSEN,* Justice. 14, August 1980, appellant,
On Stoyko, Richard was ar- charged rested and two criminal counts of homicide for shooting Shelby the of Joseph deaths Jean Storm and Glad. These counts were consolidated for trial the Court of and, 1981, Pleas of on Fayette County 9, Common February jury appellant a found of of of guilty two counts murder § 2502(a). degree. first 18 Pa.C.S.A. procedures
Pursuant to the by bifurcated mandated § Sentencing Code, separate 42 Pa.C.S.A. a sentenc- ing hearing immediately was at conducted which the same sentenced to death appellant for the murder of Shelby imprisonment Jean Storm and to life for the murder of Joseph Trial counsel filed post-verdict Glad. motions chal- of lenging the and sufficiency alleging evidence certain trial errors. The trial court also appointed additional coun- sel to and argue allegations brief pertaining to counsel’s representation at guilt phase of the trial.1 Post-verdict motions appeal were denied and this automatic § § 9711(h)(1), followed. 722(4) Pa.C.S.A. 42 Pa.C.S.A. 702(b). and Pa.R.A.P. Rule
* reassigned This Disposi- case was this writer on October delayed tion pending compilation of this case was proportionality review Pennsylvania data the Administrative Office of Courts. See (1984) Commonwealth Frey, 504 Pa. 475 A.2d and Murder Degree of the First Appendix Review Form as an attached to that opinion. compiled The data was and transmitted to this Court in March, 1984. allegations 1. These initially of ineffective assistance counsel were represented appellant raised trial post-trial counsel who has on appeal except pertaining motions on all issues those to his own representation at trial. first contends that the evidence was
Appellant
his convictions for murder
support
insufficient
contention,
evaluating
In
view
degree.
first
we
most
to the Commonwealth
light
evidence
favorable
and,
all
inferences therefrom favorable
drawing
reasonable
Commonwealth,
if
determine
there is sufficient evi
every
dence to
the trier of fact to find
element of
enable
crime
a reasonable doubt.
v. Hud
beyond
viewed,
(1980).
son, 489 Pa.
At 8:30 a.m. on Jean *7 friend, wife) a Maria picked up common-law (appellant’s in then Martin, Republic. at Ms. Martin’s home Ms. Storm attending toward Uniontown where both women were drove enroute, Beauty Academy. classes at the While Uniontown following Martin appellant Ms. and Ms. observed Storm (Other in described them a blue automobile. witnesses tags.) Buick appellant’s temporary vehicle as a blue with Salem, passed the appellant Between Fairbanks and New women, in front of them and slammed on his pulled two Appel- and around him. Ms. Storm braked drove brakes. the rear bumped Ms. Storm’s car from repeatedly lant then Road, on Ms. Storm point his car. At one New Salem with Ms. appellant the road and followed her. Storm pulled off follow, and continued to harass pulled appellant then out turned on Route bump and her vehicle. After Ms. Storm into the rear of her repeatedly drove his car appellant it came to lost control of her car and Shelby vehicle. Storm to the strip median in front of the entrance rest on a cement car, in her Appellant pulled Mall. behind Uniontown side, and fired a three shotgun to the driver’s up walked wounds, Ms. suffered two through glass. times Storm of the from the pellets one a fatal head wound. Some and Ms. Martin. shotgun blast struck wounded appellant Martin identified as driver positively Ms. them and as the man that shot the car which followed Storm. Ms. Martin’s incident Shelby account three shooting motorists who observed the corroborated appellant identified as positively and the man who shot Storm. Several other confirmed the de- Shelby witnesses tails of Ms. Martin’s account of the chase and described appellant’s car, minor only discrepancies.
Appellant “steaming fled scene his car which was badly”. expert Commonwealth’s witness identified two spent shells found by the at police having the scene as been fired from a Winchester Model 1400 sixteen gauge shotgun found by police later in a appellant vehicle which had stolen victim, from his other Joseph Glad. evening prior
On the to the Ms. killing, Storm had a filed a complaint with charging District Justice appellant with harassment, and a for appellant’s warrant arrest was issued upon that complaint. On that same an evening, acquain- Groves, tance of appellant, Jr., James had visited him at the residence which shared with Storm to Shelby Jean obtain the return of a sixteen gauge shotgun. Appellant declined to gun, return the informing Mr. “he Groves that couldn’t take anymore ...” “she. has to [Shelby] die.” the evening day
On Shelby died, Jean police Storm discovered the body Joseph on dirt Glad a road Township. Glad, German Mr. who died from a shotgun head, wound had also suffered a non-penetrating wound to the chest. At the scene police found blue Buick *8 registration with a in temporary appellant’s name and beer bearing cans appellant’s fingerprints. The front of appel- lant’s vehicle damaged police was and paint found chips from Ms. Storm’s vehicle on it. Police also recovered two spent shells fired from shotgun the in used the Storm killing which later appellant’s was discovered in possession. p.m. appellant
About 10:05 the next day, turned him- self in at the City Uniontown Police Station. At that time he an Jones, made oral in presence statement of Lt. Sergeant Campbell Wright and Officer of the Uniontown City Appellant Police. admitted that he Ms. had killed Storm and Mr. Glad. He told the officers that he had and that Mr. after he he shot Glad kill Ms. Storm to
planned did move his truck and Glad pick-up to Mr. Glad had asked had taken told the officers he Glad’s Appellant do so. not police station. found front the officers truck which killings. used in shotgun both truck was Inside the inculpatory state- separate made appellant night Later that Holmberg of the Trooper and Lukachik Trooper ments to Trooper to In his statement Police. Pennsylvania State he and said he killed Ms. Storm Lukachik, admitted again he in the middle of “his car was man” killed “the because move it.” he road and wouldn’t Holmberg, appellant again Trooper In his statement the incident to his attributed killings but admitted premeditated. not they and said were anger and drinking Ms. upset he was Storm Holmberg because Trooper He told his argued had about they him and he said that leaving “a much of the incident was He also said that drinking. kill Ms. way found a said he would have He blur”. shotgun. had he not had Storm even Shelby he had lived with trial, testified that At had they and that eight years and off for seven or Storm on put shotgun he night killing daughter. a before Mr. he had told car take it to Uniontown because his was, it and “he didn’t want to be Groves was where during ten shots and five beers night That he drank liar”. he then drank several bar-hopping and period a six hour Around 6:00 a.m. the next at home. shots and beers a.m., shots, and at 7:30 and drank two morning, up he woke had two more beers and Peacock Casino and he went to the three more shots. morning Ms. on the he had followed Storm
He admitted her and stop wanted to only claimed he August but from flipped out” “angry He he was talk to her. said car, his mind that after he left his He claimed the alcohol. out of his “blank”, getting that he remembered but went pulling trigger. Appellant vaguely car and remembered lady in the car with he had seen another also stated that Ms. Storm. *9 that, Storm, then testified after he shot
Appellant Shelby road off he drove to a Gates Hollow Road because there no noise or traffic he to to “try figure was and wanted out cross-examination, on.” what the heck went On admitted that “his radiator parked was busted.” He his car sleep” and drank a and to out.” “passed beer “went he up, pick-up When woke there was a truck behind his car. (the victim, Glad) Its driver second Joseph “mumbled some- thing”. Appellant panicked he was “closed in” because and shot Glad. shooting, appellant
After this took truck and Glad’s drove around until he turned in the evening. himself next He claimed that his inability remember the events immedi- surrounding the ately killings (although he remembered events clearly prior subsequent killings) caused his drinking.
Appellant’s
evidence,
intoxication
offered in an at
tempt
negate the intent
for
necessary
a conviction for
murder of the
degree, imposes
first
no new burden on the
Commonwealth and creates no
presumption
new
for defend
ant which the Commonwealth must
labor
overcome.
Fairell,
Commonwealth v.
476 Pa.
Obviously, rejected the jury appellant’s intoxication concluded, defense and upon abundant and sufficient evi dence, that there nowas reasonable doubt appellant’s as to to form the ability specific intent to kill required to support a conviction for murder of the degree had, first and that he fact, formed such an intent.2 Appellant following also has appeal: raised the issues in this court consolidating erred in charges the Storm and Glad homicide trial; exhibits; admitting the court erred in certain Commonwealth venue; trial failing counsel was change ineffective in to move for a and trial failing suppress counsel was ineffective in to move to three statements made to law carefully enforcement officers. We have reviewed these issues and find them to be without merit.
466 appoint neither nor additional trial counsel
Although the regarding penalty formally any raised issues ed counsel independent has an this Court proceedings, phase proceedings. the entire the record of to review obligation in cases sentencing procedures of review of Our standard is set degree of the first for murder involving convictions § 9711(h), Code, 42 which Pa.C.S.A. Sentencing forth in the provides: to automatic subject shall be
(1) A sentence of death pursuant of Pennsylvania Court Supreme review to its rules. trial, errors at to correct
(2) authority In to its addition the sentence of either affirm Court shall Supreme remand for the sentence of death and death or vacate the imprisonment life sentence. of a imposition the sentence of shall affirm (3) Supreme The Court that: death unless it determines (i) product passion, of the sentence of death was factor; arbitrary or other prejudice any finding of an (ii) support fails to the evidence (d); in subsection specified circumstance aggravating or dispropor- is excessive or
(iii) the sentence of death cases, con- imposed similar penalty tionate to the and the the circumstances of crime sidering both record of the defendant. character and this standard of review Commonwealth In construing n. 19 Pa. 50 n. 454 A.2d 955 Zettlemoyer, v. (1982), stated: this Court McKenna, stated in the reasons
[F]or (1978), this 428, 437-41, A.2d 174 and because Pa. to deter- statutory obligation an independent, has Court product of death was the mine a sentence whether factor, whether arbitrary or some other passion, prejudice that im- or disproportionate sentence is excessive cases, the record for and to review in similar posed cir- support of the evidence to sufficiency to our normal cumstances, strictly not adhere we will rules of reason for limited primary waiver. this that, final relaxation waiver rules is due to the nature of penalty, irrevocable the death will no for relief he opportunity post-conviction have wherein raise, an say, could assertion ineffectiveness preserve or reason that failure an issue some other might extraordinary as an for fail- qualify circumstance § 1180-4(2). ure an issue. Accordingly, to raise 19 P.S. Court, significant perceived issues sponte by sua and, parties, possible raised will addressed if record, from the resolved. *11 argument this
During September oral before Court on of possible significance an issue concerning counsel’s of the representation appellant sentencing hearing at was raised and discussed at felt length. some It was that have in may challenge been ineffective his to the the existence of only aggravating sought circumstance by the sentencing Commonwealth at the hearing, namely § 9711(d)(7) Pa.C.S.A. provides: which “In the commission of the offense the knowingly grave defendant created risk a of death to another in person addition to of the victim the offense.” The death based on penalty aggravating this sought was in only circumstance connection the mur- der of Storm.3 Shelby it must be that it
Initially, noted is clear evidence the support, doubt, was sufficient to beyond a reasonable the finding of aggravating the circumstance that in murdering Shelby Jean Storm created knowingly grave a risk 3. Inexplicably, attempt place the Commonwealth did not to before the jury aggravating designed the circumstance which seems to be situation, namely, cover the instant that the has been “defendant offense, convicted another Federal or State committed either of before issue, or at the time at which a sentence of offense for of life imprisonment imposable undergo- or death was or the defendant was ing imprisonment any a of life sentence reason at time of l(d)(10) (Emphasis commission added). the offense.” of 42 Pa.C.S.A. 971 § pursued, Had this circumstance been there clear- ly would have been from sufficient evidence which the could killing have Shelby found its existence both as Storm Jean as Joseph Travaglia, well as 496-497, Glad. See Pa. (1983). 467 A.2d 297-298 another in addition to Ms. person
of death to Storm. evidence, appel- had found jury, overwhelming already on i.e., willful, lant of the deliberate guilty intentional — Shelby by repeatedly Jean Storm premeditated4 killing— aiming ramming highway, her car until it was forced off the three firing the window of the car and shotgun through trial, shots, aware, his own admission at all while lady” that there an “other the car. Notes Martin, (N.T.) Maria Testimony lady”, at The “other shotgun was struck and wounded blasts. finding ag of the supports
As the evidence circumstance, this must affirm the sen gravating Court “product unless find the sentence was the tence of death we factor”, passion, prejudice any arbitrary other § 9711(h)(3)(i), dispro or that the sentence “is excessive or cases”, imposed “similar portionate § (h)(3)(iii). Actual ineffective assistance of counsel at constitute an fac sentencing hearing “arbitrary could and, if the sentence contemplated by legislature tor” as ineffectiveness, “product” of death was the would to vacate the sentence of death and duty Court’s imposition imprisonment remand for the of a life sentence. § case, 9711(h)(2). of the record Our review of this how *12 ever, assistance of discloses no ineffective counsel. ineffectiveness raised at potential argu oral following ment in the context. At the sentencing occurred took the hearing, exchange place an between Court and to-wit: attorneys,
THE in order to return a gentlemen, COURT: Ladies and penalty aggravating death one circumstance must be beyond found a reasonable doubt. The Dis- has no Attorney’s aggravating trict Office circumstance case, in Joseph they to Glad but do in the present case. Do have circum- Shelby you aggravating Storm stances in that case? killing” "[k]illing by poison, is defined as means of
4. An "intentional wait, willful, by lying by any or other kind of deliberate and in 2502(d). killing.” premeditated Pa.C.S.A. § THE do, DISTRICT your ATTORNEY: We Honor. We Martin, would ask that the testimony of Maria the wit- jurors ness the week, heard on of last Thursday be stipulated admitted and if to as she were recalled at this hearing. It is the position Commonwealth’s that if she recalled, were since she was to subjected both direct and cross-examination, that her testimony same, would be the such, and that as were we to call her now we would do nothing more than elicit the same from testimony her that she given has in previously this Court. We would feel that her testimony give would one of the setforth Code, circumstances under the Crimes that circumstance being that offense, commission of the being offense the killing Storm, Jean Shelby that defendant, Richard Stoyko, knowingly created a grave risk of death to another person, the other person Martin, being Maria victim, addition to the Shelby Storm, of the offense. Honor,
DEFENSE Your COUNSEL: we would have no objection to that stipulation and we would have no objec- tion to having not Miss Martin re-appear. As Mr. Solo- stated, mon she subject to cross-examination and we see no reason to recall her to the stand.
THE COURT: You don’t wish to have her brought in to cross-examine her?
DEFENSE not, COUNSEL: We do your Honor. Since we had an opportunity cross-examine, we feel it would be unnecessary again cross-examine her.
At oral argument, the belief was expressed that defense counsel’s stipulation may have been construed the jury an admission of the existence of the aggravating circumstance, rather than a mere stipulation to the admis- sion of Maria testimony Martin. This concern is unfounded.
It clear only stipulating counsel was to the admis- sion of Ms. Martin’s prior testimony. gist This was the stipulation Commonwealth’s proposed predi- which was *13 cated on the recalling uselessness of Ms. repeat Martin to the same testimony, since especially already she had been to cross-examination.
subject merely Defense counsel agreed unnecessary that it was to recall Ms. Martin to the she already subjected stand and reiterated that was There is no in defense coun- ambiguity cross-examination. nor is there that counsel stipulation any implication sel’s that, statement in his agreed prosecutor’s opinion, give feel that testimony would would [Ms. Martin’s] “[w]e aggravating one of the setforth circumstances under the Code____” Crimes stipulated contention that counsel to the existence of
Any dispelled circumstance would have aggravating been closing a doubt defense counsel’s beyond reasonable in argument. closing affirmatively argued Counsel against circumstance, of the aggravating focusing the existence of the element of risk.5 The could upon jury absence inferred, therefore, agreed have that defense counsel hardly Furthermore, aggravating that the circumstance existed. court, as well as the stressed that it attorneys, the lower to determine or not the Common- was for the whether met its each element of the proving wealth had burden 287, 290, 293-94, circumstance. N.T. 295-300. aggravating element of raised representation Another counsel’s challenge at oral concerns his failure to argument aggravating grounds circumstance on existence Ms. Martin. It appellant knowingly endanger did not that the oral that the evidence hypothesized argument at was emotionally that dis- an inference was supported following argument regard to the counsel made the 5. Defense aggravating circumstance: you placed circumstance Solomon has before one Mr. danger. you He told she was is that Ms. Martin was in and word, she used that or words like that. wounded. I don’t know that you going have to recall what she testified to. I believe You are clothing you examine opportunity to take her out with had an danger by act of Mr. decide whether she was in it. You must significant enough endanger- Stoyko. being by pellets Was struck Stoyko put you should be to death? to decide whether Mr. ment proving aggravating burden in circum- Commonwealth's] [The doubt, just proof that proof beyond a like the stances is reasonable you arriving your required at first decision. N.T. 293-94.
471 tressed, and had fixated on Ms. Storm was unaware that his that, Martin, therefore, and endangered actions Ms. counsel to may failing posi- have been ineffective advocate this sentencing hearing. agree. tion at the We do not Such an record, unsupported inference is the would have been by trial, presented inconsistent with the defense at and had finding the already necessarily rejected by jury been admitted a in the car appellant, seeing lady Shelby who with Storm, possessed sufficient mental to form the capacity kill, i.e., willful, intent to the act of specific shooting was premeditated Appellant’s testimony and deliberate.6 was deeply, “flipped-out” that he loved Ms. Storm when she him, not out her car to talk get would of “blanked-out” momentarily drinking, only “vaguely from excessive and pulling trigger. Appellant’s remembered” the testimony (which memory lapses contained at the exact time of both and, however, shootings accurate recall as to all events to, to, homicides) leading up subsequent and in the between was found the as his jury, incredible was intoxication defense. charged jury
6. The lower court the that in order to find the defendant guilty degree, jury killing of murder of first the the must find that the willful, act, premeditated was deliberate a then elaborated: exists, Now what is meant these words? If an intention to kill eyes killing then in the of the law the is wilful. If thisintent is accompanied by fully such circumstances as evidence a mind con- purpose person scious of its own means a knows he what is —that deliberate, doing it is and if sufficient time has been afforded —then fully design to enable the mind of the killer to frame the to kill—which means to come to that conclusion to determine to kill—then to select the instrument in order to carry design out that execution, premeditated. into then it gave charge permissible The court then a on the inference of specific deadly weapon upon part intent from the use of a a vital body, and stated that circumstantial evidence could be sufficient Further, prove jury intention. the court instructed the on volun- tary partial degree as a defense intoxication to murder of the first prevents possessing where the intoxication defendant from specific required, stating: intent Thus, you guilty degree cannot find defendant of first murder you beyond unless are satisfied a reasonable doubt that the defend- incapable ant intoxicated that he was not so at time was judging consequences incapable forming his acts and their a wilful, premeditated design deliberate and to kill. 472 threshold, cases is ineffectiveness inquiry counsel has fore which issue/argument/tactic
whether the assertion of ineffec for forms basis gone and which merit, v. Hub tiveness, arguable (1977), 259, 278, A.2d bard, 472 Pa. failure to assert ineffective for considered cannot be Gaston, 474 Pa. meritless claim. Commonwealth (1977). The tactic which counsel did A.2d i.e., advocating in the instant pursue not case— *15 endanger knowingly did not inference that merit, for the arguable life—is without Ms. Martin’s defense based on his assert rejected appellant’s already had requisite to form the intent. Accord capacity ed diminished not the threshold and do not consider ingly, pass we do pursue reasons have for failure to may what counsel’s been claim. this meritless by coun closing argument which was made aggravating of the circumstance against
sel the existence of risk. Counsel stated that Ms. was on the element a by pellets” may struck not have been “being Martin’s endangerment you jury] “significant enough [the to death”. Stoyko put whether Mr. should be See decide 5, argument, In this rather making note weak supra. only to do his best—armed attempting counsel was him and circum afforded the facts meager ammunition overwhelming against case stances of the Commonwealth’s fact that counsel strained to make his client. The circum the existence of the argument against risk) his (on does not demonstrate stance the element argu in to make a different weak failing ineffectiveness (on knowledge).7 ment the element duty wisely review the entire record exercises its 7. Unless this Court alleged closely impact penalty examines the in death cases (i.e., any alleged jury's verdict of death whether ineffectiveness on the jury’s passion actually or have induced ineffectiveness could arbitrary injected factor into the decision to prejudice or have an impose penalty), could invite a Catch-22 situation. the death we hearing, sentencing life only at a death or There are two alternatives zealous, misguided, might counsel imprisonment. A but defense case, i.e., appealable point, to ensure an tempted, "throw” the at this
473
Supreme
has
As the United States
Court
stated “not
sufficient,
in
imperfection
process
every
deliberative
case,
state
capital
judg
even in
to set aside a
court
862,
Stephens,
Zant v.
2733,
462
ment....”
U.S.
103 S.Ct.
See also
(1983).
L.Ed.2d
474, 496-501,
Travaglia,
467 A.2d
Pa.
299-301
(1983).
assume,
Even
arguendo,
were we to
that there was
“imperfection”
some
in the failure of
to challenge
the aggravating
in this
on the
circumstance
case
basis that
Martin,
appellant did
knowingly
endanger
not
Maria
it is
clear
such
does
“imperfection”
that
not affect
“reliability
the [jury’s] determination that death is the appropriate
case.” Zant v. Stephens,
punishment
specific
[this]
supra
Carolina,
at 2747 quoting Woodson v. North
280, 305,
(1976).
U.S.
96 S.Ct.
Finally, determine “whether in imposed the sentence of death the instant case “exces disproportionate sive or penalty imposed in similar § 9711(h)(3)(iii). cases ...”. 42 Pa.C.S.A. While the Sen tencing Code does not define “similar cases” nor set forth any specific procedures for conducting this proportionality which, found, issue on his or her own ineffectiveness if so would operate imprisonment. to reduce the client’s sentence to life 9711(h)(2). would, paradoxically, § Pa.C.S.A. Such a tactic be effec- (the Catch-22) tive assistance of counsel since the "ineffective" action designed would have reasonable basis to further his client’s interest. however, Proof representation unlikely, of would be as it effective require would subjective counsel to disclose his intent. Such a tactic improper, defense counsel would be no how matter altruistic the be, may legislature motives for the has determined certain conse- acts, quences follow reposed authority certain and have to deter- mine whether those acts exist in the twelve men and women
jury,
in
attorney. Accordingly,
not
one
this Court will scruti-
defense
bogus
nize the record for
"ineffectiveness”
and
tactics
should not
hesitate,
warrant,
if the facts and
so
inferences
to refer the matter to
disciplinary
board.
review,
independent
an
evaluation of all
Court conducts
degree
cases of murder of the first
convictions which were
prosecuted
under the Act of
prosecuted
could have been
§
13, 1978,
No.
September
P.L.
Pa.C.S.A.
62-63,
Pa.
supra at 500
Zettlemoyer,
Commonwealth v.
For the we sustain the conviction of degree murder of the first and affirm the sentence of death.9
NIX, C.J., HUTCHINSON, J., opin- filed dissenting ions. participate
Former did not in the Chief Justice ROBERTS of this case. decision
NIX, Justice, dissenting. Chief appellate In counsel’s failure to address the my judgment, stage in this case evidences a clear demonstration penalty Even most cursory of his ineffectiveness. review .the penalty phase rejects any explana record of the out of hand encompasses 8. "Similar cases” in the instant case all cases of murder degree support first wherein the evidence would an circumstance that in "the commission of the offense the defendant *17 knowingly grave person created a risk of death to another in addition 9711(d)(7). to the victim of the offense.” 42 Pa.C.S.A. § transmit, prothonotary of the directed to 9. The Western District is as trial, possible, complete sentencing as the full and record of the soon hearing, imposition of sentence and review this Court to the l(i). § Governor. 42 Pa.C.S.A. 971
475
lack of complaint
tion
counsel’s
as to this
part
error. See
was due to the
proceeding
arguable
absence
Lohr,
Commonwealth v.
130,
503
(1983);
Pa.
I
remand the case to the trial court with
the direction that new counsel
appointed
to brief and
argue
objections
all
relating
imposition
of the death
sentence
the jury. Had the majority determined to
course,
follow this
new counsel would have the right
raise all errors his
might
review
uncover without resort
the rubric of ineffective assistance of counsel. This is so
because we have previously stated that our rules of waiver
cases. Commonwealth v. Tra-
must
in capital
be relaxed
* Appellate
unfamiliarity
sentencing
his
admitted
issues
—
cases,
Harris,
-,
capital
871,
Pulley
see
v.
U.S.
104 S.Ct.
79
(1984);
Florida,
939,
3418,
Barclay
L.Ed.2d 29
v.
463 U.S.
103 S.Ct.
77
(1983);
862,
2733,
Stephens,
L.Ed.2d 1134
Zant v.
462 U.S.
103 S.Ct.
77
(1983);
Florida,
782,
3368,
L.Ed.2d 235
v.
Enmund
458 U.S.
102 S.Ct.
(1982);
Evans,
605,
2049,
Hopper
476 288, (1983) (Nix, 505-506, A.2d 304
vaglia,
467
502 Pa.
v.
Zettlemoyer,
Commonwealth
500 Pa.
J.,
concurring);
cert,
v.
Zettlemoyer
sub nom.
denied
(1982);
A.2d 937
454
—
Pennsylvania,
—,
HUTCHINSON, Justice, dissenting. believe, fulfilling statutory obliga- my
I I after dissent. review,1 argua- the record discloses that independent tion of during trial counsel by appellant’s ineffectiveness ble Consequently, phase proceedings. of the trial penalty sua issue, assistance raised the effective properly Court sponte, during am, however, I argument. oral unable arguable that ineffectiveness resolve the issue whether in the face of coun- appellant appellate prejudicial to raise failing any ineffectiveness unquestionable sel’s either phase during origi- concerning penalty issues short, I argu- In can see an argument reargument. nal or I ment; am unable and advocacy, in the absence but appointed post-tri- its effect. The court unwilling to resolve 9711(h) provides: § 1. See Pa.C.S. (h) sentence.— Review of death (1) subject death shall be to automatic review A sentence of Pennsylvania pursuant Supreme to its rules. Court trial, (2) authority at to its to correct errors In addition the sentence of death or vacate Supreme shall either affirm Court imposition and remand for the of a life sentence of death imprisonment sentence. (3) of death unless Supreme Court shall affirm the sentence it determines that: (i) product passion, prejudice or of death was the the sentence factor; arbitrary any other finding (ii) support of an the evidence fails to (d); specified in or circumstance subsection disproportionate (iii) of death is excessive the sentence cases, considering both the circumstanc- penalty imposed in similar of the defendant. and the character and record es of the crime appellate al and counsel argument admitted at that he only raised those ineffectiveness issues himself pointed motions, out and post-trial trial included in he had not read the Supreme United States Court’s cases on capital punishment preparation this case and had never tried a homicide. This the lack of coupled with *19 any argument by regarding the anyone penalty phase, convinces me that we have here the case where rare defend- ant was effectively process denied basic due of the because absence of even minimally competent appellate advocacy. I Accordingly, appoint- would remand to Common Pleas for ment of hearing new counsel and a on assistance ineffective of trial counsel at the penalty phase trial. entitled,
It is
that a
well-settled
criminal defendant
clause,
under the
process
due
to effective assistance of
during
sentencing hearing
his
during
as well as
115,
trial itself. Commonwealth v.
474 Pa.
Riggins,
125 n.
12,
140,
(1977);
377 A.2d
145 n. 12
Florida,
Gardner v.
430
349, 358,
1197, 1204, 1205,
U.S.
97 S.Ct.
At appellant’s sentencing hearing, defense counsel cited mitigating two circumstances: that the defendant had no significant history prior criminal conduct and that he was operating under an extreme emotional disturbance when he killed Shelby Jean Storm. The assistant district attorney stipulated the first mitigating circumstance but not to However, the second. defense counsel offered no testimo- client, ny, lay expert, for his mitigation on the issue at Therefore, hearing.2 penalty jury only left with Walzack, 2. In v. long we noted that this Court has recognized propriety psychiatric penalty stage: evidence at the is, course, "It true that the is entitled to be informed of all properly regarded circumstances and conditions to be as rele- penalty; vant determination of therefore it has been held 478
defense counsel’s bald statement concerning the existence mitigating circumstances. This is arguable ineffective- ness.3 addition,
In the Commonwealth made the following state- ment during hearing with respect to aggravating cir- cumstances in the killing: Storm Commonwealth v. [1947]
468 Pa.
for that
439;
Pa. at
that
charged
(1982).
).
testimony concerning
Commonwealth v.
359,
210,
See
purpose:
50
also Commonwealth v.
220 n.
murder,
A.2d
Wooding,
Commonwealth v.
at 329.”
15,
even
Hawk,
360 A.2d
the mental
though
355 Pa.
328
914,
Pa.
Weinstein,
short of
Stabinsky,
555, 559,
417, 421, 422,
919 n. 15
incapacity
insanity,
499 Pa.
313 Pa.
50 A.2d
(1976)
of a defendant
196 A.
is admissible
231,
(quoting
5, 7,
169 A.
A.2d
355
Frierson,
People
In
Cal.Rptr.
25 Cal.3d
N.T. at trial counsel (February Appellant’s 2, 1981). stated that he did to that object stipulation. jury not could arguably fairly have construed this as an admis- aggravating sion circumstance.
Moreover, agree I cannot the majority any mistaken belief on the jury’s part that defense proffered admitted the circumstance aggravating was dis- pelled by closing argument. argument counsel’s That argue lackluster at best. Defense counsel did not against might circumstance which the reason- jury ably by stipulation. have concluded he admitted He merely told the that it must decide whether Ms. jury Martin was in danger. He thus focused the on the element of risk *21 Ms. Martin on rather than whether knowingly created it. The obvious inference which counsel might have the to is that appellant’s asked draw because emo- state, tional he fixated on Ms. was Storm unaware that Furthermore, endangered Ms. Martin. he his actions never intoxication in appellant’s discussing appel- even mentioned § provides: lant’s emotional state. See Pa.C.S. which voluntary voluntary drugged Neither intoxication nor charge, may condition is a defense to a criminal nor negative evidence of to such conditions be introduced offense, element of intent of the except evidence such intoxication or condition of the defendant drugged may be offered the defendant it is relevant whenever higher degree degree reduce murder from a to a lower of murder. §
1972, 6, 1482, 334, 1, amended, 1976, Dec. P.L. No. as § P.L. No. April
Trial at any counsel’s failure submit evidence penalty stage coupled stipulation only aggra- with his to the vating presented by circumstance disturbing. I am concerned trial particularly counsel’s arguable stipulation aggravating circumstance be- says cause our statute “the verdict must be sentence of if at one jury unanimously aggravat- death finds least if ing mitigating circumstance ... and no circumstance or aggravating finds one or more cir- jury unanimously circumstances.” outweigh any mitigating cumstances which § 9711(c)(iv) added). (emphasis See Pa.C.S. I
Again,
present
cannot state that counsel’s failure to
mitigating
was
ineffective assistance
testimony
necessarily
Moreover, I
encourage
under our standards.
do not wish to
conjure mitigating
defense counsel to
circumstances from
nothing in
cases.
I am also not convinced that
capital
an
circumstance
has a
stipulation
never
Nevertheless,
the lack of
given
proper
reasonable basis.
I
appellate advocacy
this case
cannot determine
reasonableness,
jury,
or effect on the
of either counsel’s
stipulation or the
without
mitigating testimony
absence
the record of an
evidentiary hearing.
adversarial
See Com-
monwealth ex rel.
427 Pa.
Washington Maroney,
(1967).
At the first Court troubled failure of either newly appointed appellate trial counsel or any regarding penalty phase counsel to raise issues *22 the trial.4 Upon consideration of this case after that first oral it argument became apparent to the Court that the issue of trial counsel’s ineffectiveness warranted further We inquiry. therefore ordered reargument. Unfortunate- ly, appellate counsel failed to address the quality trial counsel’s representation during and, thus, the penalty stage reargument did not serve to significantly advance our in- quiry into the Appellate matter.5 counsel’s inex- seemingly plicable failure to raise the reargu- ineffectiveness issue at ment, turn, shifts the focus of the Court’s inquiry to the quality of his advocacy. own
The defendant is entitled to effective assistance of coun-
sel throughout the appellate process. Commonwealth v.
282,
452 Pa.
Murray,
(1973).
Moore v. United Therefore, (en banc). reviewing while a court often may difficult, hindsight, to using judge find it wisdom can, should, overall it and strategy,6 counsel’s tactics and evaluating part difficulty strategical In because of the and tactical objectively, appellate adjudge decisions courts are reluctant to strategic incompetent on the basis of or tactical errors. See Ineffective Representation Principles as a Basis Conviction: for from Relief Review, 1:1, However, (1977). Appellate Colum.J.L. & Soc.Probs. 19 totality in some cases an overall fairness of the circumstances approach may necessary evaluating competence. counsel’s Thus, Appeals the Court of for the District of Columbia reached has following conclusion: any specified We do not find that one of the actions or omissions in the conduct of the trial would in itself constitute ineffective Many might justified assistance of counsel. of them well be as errors, proper totality trial tactics. But the of the omissions and particularly closing argument, clearly pro and the futile reflect a minimal, professional competence counsel’s basic determine criteria.7 according objective measured to can be which told Here, argue ineffectiveness appointed the counsel the record and that he reviewed reargument on this Court challenge grounds find additional on which any did not those beyond sentence either the conviction or the death Court, He further informed by appellant pro raised se. recollection, represent appellant by my preparing that in dealing he did not the case law familiarize himself with death he nor trial counsel penalty. neither Finally, capital of this any concerning penalty phase raised issue preparation I lack of case. cannot countenance this obvious Hubbard, 472 Pa. diligence. See Commonwealth v. 259, 282, (1977), (“‘sloth or lack of A.2d may alternatives’ constitute inef- awareness available Moreover, omitted]). appellate fectiveness” coun- [citation *24 was not the incompetent performance argument sel’s at oral in the of advocate” which we re- “representation role an 496, 497, Stone, 437 Pa. 264 A.2d quire. Commonwealth v. 674, (1970) States, (quoting 406 Ellis v. United 356 U.S. 974, 975, 675, 2 [1958]). 78 S.Ct. L.Ed.2d 1060 of system, strategy Under our adversarial choice and, ordinarily, tactics is within counsel’s discretion judgment. counsel’s reviewing guess court will not second However, forebearance, exercising operates in the court presumption under the that counsel has made informed of criminal de- competence tactical decisions. We demand There- appellate fense counsel at the trial and levels. both adequate representation prepara- forma defense and a lack of in the Appellant of and trial of the case. has sustained his burden tion establishing deprived his claim that he was of his constitutional right of to effective assistance counsel. 597, Hammonds, (D.C.Cir.1970). States v. 425 F.2d 604 United Supreme The United States Court has cautioned that: right guaranteed by to counsel the Constitution is to serve its if the incompetent purpose, cannot to the mercies of defendants be left counsel, judges proper to maintain standards and that should strive by attorneys representing in performance are defendants who in criminal cases their courts. 1441, 1449, Richardson, 759, 771, 90 S.Ct. 25 McMann v. 397 U.S. (1970). L.Ed.2d 763 fore, fully that counsel be of all require we informed on his interposed could be client’s behalf. defenses which “ attorneys ‘duty investigate defense have a to Criminal carefully may all fact and of law that defenses defendant____’” If fail- available ... counsel’s to in perform obligations ure to results these the withdrawal “ ‘the de- potentially of a crucial or meritorious defense fendant not had the to which he is enti- has assistance ” tled.’ 739, People Pope, Cal.Rptr. Cal.3d omitted). (1979) (citations 590 P.2d us, In the of trial ineffec- case before issue counsel’s proceedings the trial has penalty phase tiveness at the Appellate counsel’s failure to raise arguable merit. issue, hearing, at oral any objection penalty other to incompetence neglecting to argument is attributable his Ac- law. respect pertinent educate himself with to to any objections his “decision” not to raise cordingly, not That on reason. phase ignorance, was based penalty justify a reasonable to the course may there exist basis The court cannot taken irrelevant. action ap- support counsel’s decisions. supply rationale appel- during to an informed advocate was entitled pellant I would remand the case order proceedings. late representation required of the caliber provide appellant his and interests. rights adequately protect