*1 рresumption Because Father failed to rebut donative daughter’s to the transfers he made into his intent relative December of account of 1997 and PUTMA between October daughter. to his gifts those funds were irrevocable above, for the reasons stated I would affirm the Accordingly, Court, grounds albeit on different than Superior order of the Majority. this joins concurring opinion.
Mr. Justice SAYLOR 876A.2d 916 Pennsylvania, Appellee, COMMONWEALTH
v. TAYLOR, Appellant. Ronald No. 367 CAP. Pennsylvania. Supreme Court Argued March 21, 2005. Decided June *5 Elash, Taylor. for Ronald Esq., L. John Willig, Amy Zapp, A. Robert Wayne Streily, Esq., Michael Pennsylvania. Pittsburgh, Esq., NIGRO, CASTILLE, CAPPY, C.J., and BEFORE: BAER, NEWMAN, SAYLOR, EAKIN and JJ.
OPINION Justice CASTILLE. imposed from the sentence of death appeal
This is a direct Allegheny County. Appel- of Common Pleas by Court rampage case stem from his lant’s the instant convictions 2000, apartment of his with the arson began March which people of three killing resulted in the building; others; in a standoff with and culminated maiming two facility. at a care police medical his charged arrested and connection with
Appellant was to stand crimes, adjudicated incompetent initially and he was Jr., Manning, A. dated Jeffrey trial order of the Honorable be commit 2000. The order directed April evaluation for treatment and Mayview Hospital ted to State becoming compet until that he be medicated appropriately ent.1 court to 28, 2000, petitioned the Commonwealth
On June Weiner, to have Dr. Michael psychiatric expert, its permit and also to medical records appellant’s Mayview access to any access and to interview opportunity have court, Mayview Hospital submit to the directed that order also "outlining [appellant’s] treatment and every days, report a written legal evaluating competency participate to understand and Court, proceedings.” Order of 4/25/00. Mayview professional or para-professional staff. The trial *6 30, 2000, court that granted motion on June in and following Dr. Weiner days, interviewed a variety medical from personnel Mayview both Hospital and St. Francis Hospi tal, where appellant had received medical treatment from 1990 addition, to 1999. In Dr. Weiner appellant’s reviewed medical Mayview records from Hospital and on appellant interviewed July 2000. In a letter 6, 2000, to trial court dated July court, detail, Dr. Weiner informed the in that in his opinion appellant competent 28, 2000, was to stand to July trial. On the trial court issued an order directing Department of Mayview Corrections and to Hospital produce for appellant trial.2
The matter was to transferred the Honorable Lawrence J. O’Toole, counsel, present Elash, Esq., John appointed was in November of 2000 to represent appellant at trial. Public Middleman, Defender Esq., Lisa in appellant’s repre- assisted 19, 2001, sentation. On April counsel a filed Notice of Intent to Pursue an Insanity 7, 2001, Defense. May On the trial court granted the petition Commonwealth’s to Dr. allow Wei- ner access to in appellant order to conduct a psychiatric evaluation regarding appellant’s state of mind at the time of the crime.
Dr. attempted Weiner interview 19May 20, 2001, but appellant refused to cooperate. Consequently, 21, 2001, on May a Commonwealth filed motion with trial court ordering appellant to cooperate with the interview- in ing process, which the Commonwealth requested that the
court “conduct a colloquy [appellant] with him advise cooperate and participate the interviewing process in a manner,” meaningful the court “advise [appellant] that his failure to cooperate meaningful manner will result in excluding evidence of any mental infirmity defense or mitigation any at stage these proceedings.” Common- Although adjudicated the Commonwealth asserts that 28, 2000, competent July to stand trial on the trial order court’s did not event, any competency finding. any include In dispute there is no as to N.T., 5/21/01, competence ultimate to stand trial. See at 11. ¶¶ Motion, 5/21/01, wealth at 6-7. The trial court held a date, on that same at hearing which the court heard Weiner, from Dr. stated that medical although appellant’s who review, records were available for it history neсessary him to opinion interview order to form an on his mental status at the time of Following the crime. the testimo- ny, court issued an order directing appellant cooper- ate process. with interview 22, 2001,
On the morning May Dr. Weiner interviewed hours, appellant for several but appellant refused to continue the interview session in the afternoon. At a hearing held afternoon, Dr. Weiner testified that he approximately needed 15 hours of total interview time and still needed a “considera- N.T., 5/22/01, ble amount of time” appellant. 8. The *7 court directed the that process evening interview to continue and the next if day necessary.
During 23, the of day, May afternoon the next the court yet held another at hearing, which the Commonwealth com- plained appellant had refused to on cooperate evening the and had been prior only “superficially cooperative” that morn- comment,” ing, providing answers such as a “[n]o “[t]hat’s N.T., 5/23/01, stupid question.” at 20. Defense counsel coun- fact, tered that in appellant, had been the complying with court’s hearing order. After from Dr. Weiner support the the position, Commonwealth’s court conducted a record colloquy appellant to ensure that he understood duty to in order to be comply pursue insanity able to an defense. Appellant understanding, evidenced his and the court permitted thereаfter Dr. Weiner continue the inter- process. view 24, 2001, May
On the court held another hearing, making record note of the fact that Dr. the Weiner had ceased 23, at process p.m. May interview around on and that sought additional interview time for 25. May The court again agreed to oversee the process, interview but defense counsel informed the court that he instruct would not to appellant any answer further At a questions. hearing on 25, 2001, the following morning, May defense counsel cooperative up had been that appellant
reiterated his position not to appellant instruct that he would point to that the court day, Later that same any questions. further answer compelled it it had order, noted an which issued examination; Dr. in a psychiatric to participate appellant a total of six to had, fact, for appellant examined Weiner substantially complied hours; had appellant and that eight Thus, the order denied process. the examination raising from to bar request Commonwealth’s of insanity. defense all directing that 31, 2001, court issued an order May
On stayed pending disposition be in the matter proceedings the trial appeal request permission Commonwealth’s Thereafter, Court denied Superior court’s order. on Appeal August Permission to Petition for Commonwealth’s a Petition for Permission denied and this Court 4, 2001. Appeal October 1, 2001 аnd the on November trial commenced
Appellant’s alia, of, counts of first- inter three jury convicted 2502(a).3 11, 2001, murder, § November On degree Pa.C.S. continued to hearing which penalty phase after Middleman, Elash and by Attorneys represented be murder, and as to each one circumstance aggravating found mitigating of one jurors found the existence one or more jury unanimously to each murder.4 circumstance as following eight crimes: counts Appellant convicted of the was also *8 arson, 2702; assault, 18 Pa.C.S. § one count of aggravated 18 Pa.C.S. risking 3301(a)(1); causing catastrophe and a a § one count each of 3302(a) (b); intimi- § one count of ethnic catastrophe, and 18 Pa.C.S. 2710; dation, violating the Uniform Firearms § one count of 18 Pa.C.S. threats, 6106; Act, Pa.C.S. § terroristic 18 Pa.C.S. four counts of 18 2902; restraint, 2706; § Pa.C.S. four unlawful 18 § three counts of 2701; assault, § counts of and sixteen simple 18 Pa.C.S. counts of § recklessly endangering person, 18 Pa.C.S. 2705. another by jury was that aggravating found The circumstance 4. before or at the murder that was committed convicted of another was (d)(ll). mitigat- § question. 42 9711 the murder in Pa.C.S. time of mitigator. 42 by the was the "catchall” ing found circumstance 9711(e)(8) concerning mitigation ("Any evidence of § other Pa.C.S. and the circumstances of of the defendant character and record offense.”). 179 the miti- outweighed factors aggravating that the concluded of factors, returned three sentences аccordingly, and gating 11, 2002, formally imposed the trial court January death. On an consec- imposed aggregate, of death and also the sentences on the years imprisonment 115 to 230 utive sentence of filed appeal Notice of automatic remaining convictions. 8, on February order, filed a State- the trial court’s
Pursuant 23, Appeal. January of on On Complained ment of Matters the claims 2003, opinion addressing trial court filed an appeal. by appellant raised Sufficiency
I. of the Evidence first, capital appeals, as do all direct We turn we it to ensure that is sufficient to our of the evidence review first-degree murder. Com appellant’s convictions support 16, 937, A.2d 942 n. 3 v. 500 Pa. 454 Zettlemoyer, monwealth denied, 970, 2444, (1982), 77 L.Ed.2d 461 U.S. 103 S.Ct. cert. (1983). does notwithstanding We do so 1327 of the Commonwealth sufficiency evidence. challenge (2003). Freeman, 532, A.2d 385 When review v. 573 Pa. 827 evidence, this must determine sufficiency Court ing trial, all reasonable inferences the evidence at whether in the most favorable light therefrom when viewed drawn winner, are sufficient to estab the Commonwealth as verdict beyond of the offense a reasonable doubt. lish each element (2000). 1, 859, Pa. A.2d 864 Bridges, v. 757 Commonwealth murder the Common guilty first-degree A is where person (1) killed; being unlawfully a human proves wealth (3) (2) killing; for the responsible accused is person intent to kill. 18 Pa.C.S. specific the accused acted with A.2d 2502(d); v. Spotz, § “ (2000). [killing is a killing intentional An wait, or other kind of any or poison, by lying means willful, 18 Pa.C.S. premeditated killing.” deliberate 2502(d). from the use intent to kill can be inferred Specific § body. of the victim’s part a vital deadly weapon *9 Fletcher,
Commonwealth v. 750 A.2d (2000). evidence adduced trial established the following.
The On 1, 2000, workers, March maintenance two white Kroll John DeWitt, and John replacing appellant’s were door to apartment building Street, a located at 1208 Wood Wilkins- burg, County, which is Allegheny Pennsylvania. Appellant, black, is grew angry who because he thought that Kroll and taking long. DeWitt were too Appellant called DeWitt trash,” pig” “racist white “dirty white replied DeWitt by stating that like people appellant are the of racial cause N.T., 11/1/01, kneeled, tension. at 88. As picking up DeWitt his tools from the floor in the hallway outside appellant’s apartment, appellant stood over him. directly Because appel- lant looked to angry, DeWitt rose his feet awith hammer held at his side. Appellant asked: “You think you’re pretty tough?” Appellant away walked but then returned and stated DeWitt, “You’re a man ... dead You have to come back to N.T., this ... building 11/1/01, You’re a dead man.” at 91-92. DeWitt and Kroll then apartment went building’s basement, at which point DeWitt left Kroll to attend to another request. resident’s maintenance Kroll remained in worker, the basement with another maintenance Andrew Williams, who is black. DeWitt,
Following the confrontatiоn returned to his apartment, where he retrieved a .22 caliber revolver and it in a placed small pouch along with numerous loose rounds ammunition. Appellant then set his lighter couch fire with fluid and exited the apartment, leaving the door open. spread fire to the into ceiling hallway, but firefighters able were to subdue the blaze. No injured one was as a result.
Immediately fire, after his couch on setting appellant began to search the apartment for building DeWitt. When came upon basement, Kroll and Williams in the shouted, fucker, “Where are mother you, I’m going get you. N.T., I got 11/1/01, something you.” at 112. Williams hand, noticed the pouch brown and both *10 anything Kroll not to do pleaded appellant Williams and with then the from his pulled pistol pouch, repeat rash. Appellant threat, in you,” began looking the “I and ing got something room, expected the boiler he to find DeWitt. apparently where N.T., 11/1/01, DeWitt, locating appel in at Unsuccessful Kroll and and building, following lant exited the with Williams Appellant not to do rash. pleading appellant anything turned, chest, killing fired one shot into Kroll’s stopped, and him unharmed.5 leaving and Williams Burger then to a restaurant.
Appellant nearby King walked restaurant, counter, turned, the the past He entered walked a Joseph Healy, 71-year-old and walked over where white male, word, in a booth. a shot sitting appellant Without head, in Healy point-blank range killing at the back of the him.6
Appellant Burger King, began walking then left the and a short distance the entrance to nearby toward McDonald’s male, Clinger, sitting restaurant. Richard a white in the van, in parked driver’s seat his which was the McDonald’s van, lot. his Appellant approached pointed gun through window, the partially opened driver side and shot in Clinger then Appellant head. entered the McDonald’s and walked behind the counter into the food area. There he preparation Bostard, manager, found the store another Stephen white male. his Appellant placed temple revolver to Bostard’s and shot him next to his ear. Both right Clinger and Bostard injured survived severely but were as a result of their wounds.7 passed through right lung lodged
5. The bullet Kroll’s and in his back. profusely, causing pleural The wound bled blood collect in Kroll's shock, cavity sending him into a state of which resulted in his death. gunshot Healy tip appel- 6. The wound that killed revealed gun nearly right lant's in was either contact or contact with the side head, Healy's right Healy’s behind his ear. The bullet went into stem, resulting brain and transected his brain his death. Clinger right paralyzed body. 7. Mr. is now side Mr. cord, jaw, perma- Bostard suffered a shattered a severed vocal and a hearing; lodged nent loss of bullet him that struck remains the back of his neck.
Next, along exited the McDonald’s and walked line, in the into idling peering line of cars that sat drive-thru Emil car peered of the cars. into Sanielevici’s Appellant some and then began side window walk through passenger inquired the window and what away. Sanieleviei lowered do I want? Appellant responded: wanted. “What I to the driver’s side of do want?” and then walked What 11/2/01, N.T., at 249. From less than two Sanielevici’s car. forehead, in his away, appellant killing feet shot Sanieleviei him.8
Thereafter, to a build- nearby apartment walked Street, walking up ing began located 416 Ross *11 stairs, entrance on the encountered a appellant stairs. While is black. building, Washington, tenant of the Ronald who here,” but Washington instructed to “come Wash- Appellant hand. gun refused he noticed the ington when that, him “this isn’t for ... it Appellant you assured was N.T., 11/5/01, at After reloading these crackers.” 379-80. stairs, way apartment on the made his into the gun appellant McCrae, woman, ground of Christine a black lived on the who floor and had left her back door instructed open. Appellant her that he remain quiet only McCrae to be and assured would later for a few minutes while he collected himself. McCrae “just just get testified that said he was out to white N.T., 11/2/01, if people.” Appellant at 287. asked McCrae she car, and she that she did not. any guns replied had or any then if in the Appellant people asked McCrae white lived did not building, replied which McCrae she know. kissed on the forehead and left the Appellant apart- McCrae ment. cаll, police Wilkinsburg
In to a radio Police Offi- response driving cers Daniel and Michael Mincin in a Ciuffe were of the police through Wilkinsburg marked cruiser search the street. shooting suspect, they appellant crossing when saw Not their the officers yet realizing suspect, pass, point the car to let him at which he turned and stopped right passed through hemisphere and 8. The bullet Sanielevici’s cerebral lodged in the back of his head. Appel- their car. patrol in the direction of three shots fired he Building, where nearby into the Penn West lant then fled medical Family practice. into the offices Metro walked female a white Papenmeir, Patricia encountered Appellant N.T., 11/5/01, at to “shh.” he instructed receptionist, whom office, anyone else was inquired 405. He whether in the file him that another informed woman Papenmeir the file led her to Papenmeir and Appellant grabbed room. Nicomede, another white room, found Debbie they where Ambrose, a white point, Joyce female At some employee. if the three and asked Family, at came nurse Metro Bill a black Simmington, at help. Looking needed stated, doesn’t nearby, appellant “She employee male who was N.T., 11/2/01, then Appellant at 306. what time it is.” know Nicomede, Ambrose the hall led down Papenmeir, em- another black leaving Simmington behind gunpoint, announced to hallway, appеllant ployee. Somewhere down many people three “You don’t how I’ve women: know I’m just I I one bullet left and people. killed. killed five have one it you. just to use it on one of I don’t know which going N.T., 11/2/01, the gun at 308. then waved Appellant will be.” next, their faces and from one to the it at pointing woman employee Barbara a black female Pippins, foreheads. When hallway into the where family, inadvertently of Metro walked stood, appellant Pippins, the three told appellant and women *12 N.T., 11/5/01, 414. out of here.” at okay “You’re sister. Get Then, Nicomede, seemingly having appel- decided to shoot Ms. said, at her “You look like pointed gun lant head and However, gun, he then smart white bitch.” lowered “No, said, I think I’ll Nicomede the arm and grabbed 11/2/01, N.T., at 311. for a on.” you terrorize while. Come arm dropped then her pleaded appellant, Nicomede with who room, aimed appellant and into an examination where walked Freeman, to room. his at Dr. David retreated another gun who Freeman, in the everyone for Dr. appellant looking While was hallway escape. able to was Tomko, had to the scene responded
Police Officer Paul who the Penn from a confronted inside nearby township, appellant Building West while the officer was to attempting evacuate the ensued, A building’s occupants. stand-off which pointed his at the gun poliсe and at himself intermittently. Appellant repeatedly inquired many how had that people died day talked about racism and During God. the following hours, Fisher, Sergeant Police a negotiations John specialist, appellant. talked with When asked about happened what day, appellant, DeWitt, apparently referring to Mr. responded: God-damned J.D.....He pushed “[T]hat me too far today. He went ... I overboard. couldn’t take it ... anymore white mother fucker.” later Appellant admitted to setting his apartment on fire Sergeant and told Fisher: “You tell J.D. lucky he’s that I didn’t himget today. lucky got He’s he N.T., away.” 11/5/01, 435,
Appellant eventually surrendered and was immediately transported station, to the police a large where media pres- ence had gathered. media, Before walking past one officer asked he whether wanted to anything cover face, to which responded: “I’m I proud what did. I anything N.T., 11/5/01, don’t need my cover face.” at 527-28. Appellant also commented that he should have killed himself because he did not to spend want the rest of his in jail. life
The foregoing amply evidence was sufficient permit conclude, jury to beyond doubt, a reasonable that appellant intentionally, deliberately, and premeditation killed Mr. Kroll, Healy, Mr. and Mr. Sanielevici. Each of these victims killed; unlawfully appellant committed killings; the mere fact that appellant shot Kroll in the chest and Healy Sanielevici the head sufficient permit the jury to find a specific intent to kill. Additional evidence of specific made, intent to kill included the statements he indicat- ing, other among things, his dislike for people, white during the course of his rampage.
We turn to the now claims raised by appellant, one of which arises from the guilt phase of the trial and the remaining three of which arise from the penalty phase. We will discuss claims order.
II. Phase Guilt the trial court claim is that guilt-phase sole Appellant’s jury on diminished charge to by denying request erred view, when, in murder third-degree and capacity challenged [appellant’s] “clearly at trial the evidence adduced rea mens first-degree requisite to capacity possess differ he knew the urges although that murder.” Appellant to stand competent and wrong was right ence between trial, process “to understand and capacity he had diminished mistakes, communicate, to information, abstract from to to to logical reasoning, in engage from to experience, learn In others’ reaction[s].” and to understand impulses, control psychiatric cites to his argument, appellant of this support testimony explaining appel psychiatric expert’s “voluminous that, Appellant posits and mental diseases.” psychoses lant’s capacity, they as had the been instructed to diminished jury man thаt “a psychotic have considered was would a lifetime through his paranoid schizophrenia who manifested on March that culminated practices bizarre rituals evidence psychiatric 2000.” concludes that his Appellant intent specific the element of negate have served “would Murder.” Third-Degree ... resulted a verdict Brief 12-13. Appellant’s that neither instruction was counters Commonwealth capacity the defense of diminished was
required and evidence, presented by light unavailable by appellant’s psychi- and confirmed own forming specific expert, capable atric Pa.R.A.P.1925(a) court, opinion, intent to kill. The trial its at trial presented evidence concluded “Sufficient for the a rational basis Court provided that would have or third-degree either murder diminished jury instruct the on capacity.” not instruct the that “a trial court should
It is settled facts no to the application which have legal principles White, 179, 415 at trial.” Commonwealth v. presented (1980). Rather, “must be some relation- there A.2d *14 186
ship
presented
upon
between the evidence
and the law
which
Crews,
an instruction is
v.
536
requested.” Commonwealth
(1994).
508,
395,
Pa.
640 A.2d
407
reason for this rule is
that, “instructing
legal principles
that cannot
rationally be
to the facts
trial
applied
presented
may
just
confuse them and
in the
of a
place
path
obstacles
verdict.”
White,
Accordingly,
This Court first
recognized
viability
capac-
diminished
ity
first-degree
as
defense to
murder in Commonwealth v.
Walzack,
(1976).
210,
There,
187 as to the inquiry’ advanced ‘significantly have ously would of the crime.” Id. an essential element absence of or presence Hickman, Pa. 309 v. at 918 (quoting (1973)). Moreover, rejected Court A.2d of the de- bar the use reasons should policy argument evidence psychiatric that the accordingly held fense and element of the it bore an relevant as question Walzack, been admitted. and should have charged offense A.2d at 921. has not doctrine capacity While diminished well-recog and is now since Walzack changed significantly *15 in an murder first-degree defense to permissible nized as a that the defense case, has admonished this Court appropriate Travaglia, v. extremely an limited one. See Commonwealth is (1995). 108, 352, n. 10 Diminished A.2d 359 541 Pa. 661 negation specific at the exclusively is directed capacity therefore, admissible, of the defense intent, to be evidence criminal defendant’s into necessarily put question must Walzack, kill. 360 A.2d to form the intent to See very ability (“the relates to the accused’s thrust of the doctrine at 916 n. 6 According cognitive process.”).9 ability perform specified to a rejected the contention evidence ly, repeatedly we have actions—by to inаbility control supposed a defendant’s or other “compulsion,” a impulse,” of an “irresistible virtue intent, consis have negate specific relevant to we wise-is support may such not be admitted tently held that evidence 661 A.2d at Travaglia, See capacity of a diminished defense. (diminished by supported could not be capacity 360 defense actions); control his Zettle could not argument defendant (where “infested” at 949 entire defense was 454 A.2d moyer, trial court was correct impulse,” of “irresistible language with bear diminish language that such did not to inform court defense; in dicta that trial commenting capacity ed charge to on diminished deny been error would have Furthermore, expressly at the outset that its Court noted the Walzack "inferentially accepting the irresistible holding read as was not to be Walzack, rejected.” previously 360 impulse which Court [the had] test 347, 465, Myers, 282 A.2d (citing v. 444 Pa. A.2d at 916 (1971)). Weinstein, capacity altogether); Commonwealth v. (1982) 451 A.2d (psychiatric testimony indicat- that defendant ing compulsion had or irresistible impulse kill is to question specific and, irrelevant intent to kill inadmissible). therefore, case,
In the instant Fabrega called Dr. Horacio testify in support insanity of his defense. Dr. Fabrega did not specifically testily to appellants alleged diminished capacity, much less opinion did he offer an that appellant lacked the However, to form the сapacity specific intent to kill. certain portions of Dr. are Fabrega’s testimony enlightening as to diminished albeit not in capacity, way that supports appel- instance, lants argument. For when asked trial counsel if an opinion he had as to whether was insane at the time of shootings, Dr. Fabrega launched into an extensive alia, that, narrative, inter commented, he during which “es- was, formulation, sentially [appellant] from my thrown into a psychotic storm of discontrol where he to— intending he where intended shoot Mr. DeWitt.” When asked later alia, inter stated, to explain legal insanity, Fabrega that, Dr. “[o]bviously [appellant] he doing. knew what was took a [H]e gun. loaded He aimed it. He had conversations people. Later he selectively shot white people and not black people. *16 N.T., there a 11/6/01, So was deliberateness about that.” at later, that, 609. Still Dr. Fabrega noted “some of [appel- behavior deliberate. lants] was was deliberate in the [I]t women, sense that he didn’t shoot it deliberate in was the sense that he didn’t shoot black people. So he obviously was N.T., 6/11/01, happening.” aware what was at 614. evidence, Following the close of prior and to the trial courts charging jury, defense counsel requested that the court instruct on jury diminished capacity third-degree murder. The trial prosecutor responded that there no was suppоrt that, evidence to such jury charges, to the con- trary, testimony from appellants expert own confirmed that appellant capacity had the to form a specific intent to kill. The trial court agreed and did not charge jury dimin- capacity ished or third degree murder. that he charges the two recites simply appeal, appellant
On
little
but offers
to the
been read
alleges should have
that
the evidence
was
why
analysis
explain
legal
persuasive
instructions.
requested
introduced warranted
actually
appellant
that
testified
expert
defense
appellants
The fact that
of mental
degrees
varying
from
and suffered
psychotic
the capaci-
he lacked
ineluctably suggest that
illness does not
independent
intent to kill. This Courts
specific
to form a
ty
trial—
that all of the evidence admitted
reveals
review
the defense—demonstrated
including
proffered by
evidence
intent
specific
to form
capacity
appellant possessed
that
Fabrega’s
Moreover,
that Dr.
noting
it is worth
to kill.
storm of
“psychotic
entered into a
opinion
appellant
not diminish-
impulse,
back to irresistible
discontrol” harkens
irrele-
is
has held that such evidence
capacity;
ed
this Court
Tra-
See
prove
capacity.
and inadmissible to
diminished
vant
as the evidence did
Accordingly,
III. Phase first claims phase, appellant to the Turning penalty by permitting its discretion the trial court abused Weiner, to Dr. Michael psychiatric expert, Commonwealth’s arguments offers two distinct testify Appellant rebuttal. (1) Dr. examination of this claim: Weiner’s support and inade provided of 2001 an insufficient May (2) that Dr. testimony; his quate support expert basis to free from right be violated Weiner’s under both the to counsel right self-incrimination and and United States Constitutions. Pennsylvania As is as follows. arguments for these background de- above, insanity his notice of noted after filed Dr. fense, leave for Weiner granted as to forming opinion an purpose for the interview *17 Ultimately, the crime. mental state at the time of appellant’s that Dr. request rejected the trial court Commonwealth’s be Weiner afforded additional visits with before alternative, finalizing opinion, his or that appellant Instead, should be barred from raising insanity. defense agreed the trial court the defense that had with substantially the court’s to complied previous coop- with order erate with the and that he not be process interview would raising barred from an defense. The insanity Common- attempt appellate wealth’s secure of that decision review was denied.
Accordingly, during the penalty hearing appellant presented in support evidence of the circum following mitigating two (1) stances he ultimately argued jury: which to the that he disturbance, under was extreme mental or emotional (2) 9711(e)(2); §C.S. capacity appreciate his criminality of his conduct or to conform his conduct requirements of the substantially law was impaired, Pa.C.S. 9711(e)(3).10 case, § Following the close of appellant’s Commonwealth called Dr. Weiner in rebuttal to challenge existence of these mitigators. Appellant objected. Before ruling objections, on the the trial permitted court the prosecu tor and defense counsel to examine Dr. Weiner outside the presence ascertain, jury order to primarily, whether there merit to constitutional claims.
Defense counsel questioned Dr. Weiner both his regarding July 2000 competency examination and the sufficiency time appellant May interview with 2001. As to the latter issue, the took following exchange place: you When testified from that chair very
[Defense counsel]: that you give could not an as to the mental opinion state of [appellant] without additional time specifically [appel- lant], that not true?
Dr. Weiner: I’d like to see a that I copy my testimony so could— Sure.
[Defense counsel]:
Dr. Weiner: Thank you. 10. No member found the existence of either of these mental- mitigators. Jury Slip. status See Verdict *18 to its testimony go of his part that The Wouldn’t Court: that I the concern was jury? thought of the in front weight Amendments client’s Sixth your that possibility there was a been had violated. rights [sic] That’s true. counsel]:
[Defense is not—
The The doctor Court: The is abso- I’ll that. court withdraw counsel]: [Defense correct. lutely 11/10/01,
N.T., at 1082. trial court overruled testimony, the Following Dr. Weiner’s per- objection and remaining counsel’s constitutional defense Dr. jury. of the in the testimony presence the rebuttal mitted that, was opinion, appellant in his expert then testified Weiner at the emotional disturbance mental or not under extreme appreciate capacity and that appellant’s time of the crime to the or to conform his conduct of his conduct criminality substantially impaired. law was arguing earlier position, his
Presently, appellant reverses assertions to that, repeated of the Commonwealth’s because spent Dr. the amount of time Weiner the trial court May 19 to period May from interviewing during appellant informa- 24, equip the doctor with 2001 was insufficient the time mental state at opine necessary tion been excluded. crime, should have his granted not be should counters recalcitrance— that he his own relief a claim created upon event, that, the fact i.e., any to cooperate—and his refusal from much cooperation not secure as that Dr. Weiner did him from not preclude he have liked did as would of weight an which was rendering opinion, forming that Dr. submits Weiner jury. The Commonwealth the amount diagnosis based professional to form a able the informa- actually spent time that he with to him. tion that available that, his line of cross-examina- by withdrawing
note We
the amount
objection—concerning
implicitly,
tion—and
his
arguably
counsel
spent
appellant,
Dr.
time that
Weiner
Freeman,
to preserve
present argument.
failed
However,
dence, is a matter primarily falling within the discretionary
Reid,
of
powers
1,
the trial court. Commonwealth v.
571 Pa.
(2002);
Jones,
161,
193 refusal After his by his recalcitrance. profit cannot appellant Weiner, argued Dr. appellant further with cooperate to render appellant access to such as had sufficient Dr. Weiner disputed the Although the Commonwealth expert opinion. an review, the fact sought interlocutory unsuсcessfully point, the trial finding by the controlling legal the matter is that sufficient access expert that the received court in the case was binds now finding That expert opinion. to form an it ren- when was than it bound the Commonwealth no less admissibility challenge to Accordingly, appellant’s dered. insufficiency alleged testimony upon based of Dr. Weiner’s examination must fail. of his alternative, testi that the doctor’s appellant argues
In the
based, at
in part,
because it
least
inadmissible
was
mony was
during
from
the doctor’s
gleaned
information
2000, an
which
July
evaluation
competency evaluation
conducted
warnings
Miranda12
preceded by
Relying
affording
the benefit of counsel.
without
Smith,
68 L.Ed.2d
Estelle v.
U.S.
S.Ct.
(1981),
that the doctor’s
violated
appellant reasons
Constit
Fifth
Amendments of the United States
and Sixth
*20
waived
responds
ution.13 The Commonwealth
he
a
self-incrimination because
raised
his
to be free from
right
Moreover, the Common
mental
at trial.
infirmity defense
of Dr.
entirety
that the
that the record shows
argues
wealth
based
testimony
rebuttal
was
penalty phase
Weiner’s
exami
independent
competency
sources
of his
information and
the Common
agreed
The trial court
with
appellant.
nation of
“[wjhere
that,
a mental-status
a defendant has raised
wealth
defense,
a Fifth
right
not
a
to raise
that defendant does
have
aby
to an examination
challenge
Amendment
Arizona,
A criminal neither initiates a psychiatric who attempts any psychiatric evaluation nor to introduce evi- dence, to a if may compelled respond psychiatrist be *21 can him at a against capital his statements be used sentenc- did not ing proceeding. voluntarily Because [the defendant] pretrial psychiatric being consent to the examination after right possible informed of his to remain silent and the use of
195 to he said statements, rely could not on what the State dangerous- his future to establish psychiatric expert] [the ness. continued, 468, at 1876. The Court at 101 S.Ct.
451 U.S. that: hypothesizing warned, had defendant]
If, being adequately [the upon questions, expert’s] [the that he answer indicated would nevertheless examination vаlidly competency ordered the that the results the condition proceeded could have circum- In such solely purpose. for that be applied would stances, competency and use of the conduct proper frustrated, must but the are not State examinations sanity way. in some other dangerousness make its case on future 468-69, emphasized at The Court 101 Id. S.Ct. its case with prove the state requires the Fifth Amendment competency than the results of court-ordered evidence other examination, where, is to the defendant prior examination he or where rights of his Fifth Amendment either uninformed further them. Id. The Court informed and does not waive is the defendant’s violated challenged held counsel, that the defen- right reasoning Amendment Sixth competency or not to comply dant’s choice of whether been forced to one that he should not have examination was 471, of counsel.” Id. at make hand “guiding without omitted). (citation at 1877 S.Ct.
Later, v. 107 S.Ct. Kentucky, Buchanan U.S. (1987), its Supreme qualified Court 97 L.Ed.2d Buchanan, over prosecution, In holding Smith. objection, permitted Fifth Amendment defendant’s it as pre-trial psychiatric report from a introduce evidence at the time of the to the defendant’s mental state pertained Smith, however, Buchanan’s crime. defense counsel Unlike for the request in the attorney joined prosecutor’s pretrial had defense— infirmity a mental evaluation and also had raised Following trial. the de- emotional disturbance—at extreme affirmed, conviction, Kentucky Supreme Court fendant’s review, affirmed as Supreme and on further the U.S. Court well, Fifth Amendment claim. the defendant’s rejecting *22 Court noted that “a where defendant requests psychiatric] [a or presents psychiatric evaluation ... evidence at the very least, the prosecution may rebut this presentation with evi dence from reports of the examination that the defendant Buchanan, requested.” 422-23, 107 at U.S. at S.Ct. 2917- 18. The explained Court the distinction between the circum in stances Buchanan in and those Smith: This case presents one of the situations that distin- we guished from the facts in Smith. Here [the defendant’s] joined counsel in a motion for competency psychia- [the examination pursuant trist’s] to the Kentucky procedure for involuntary hospitalization. Moreover, en- [the defendant’s] tire defense strategy was to establish the “mental status” defense of Indeed, extreme emotional disturbance. the sole n witnessfor [the defendant’s defendant] [the mental expert], health by who was asked defense counsel to do little more than read to the psychological reports and in letter of custody Kentucky’s Department Human circumstances, Services. In such with [the defendant] stand, taking the Commonwealth could not respond to this defense unless it presented other psychological evi- dence. Accordingly, the Commonwealth asked defense [the expert] read excerpts competency psychiatrist’s] [the in report, which the psychiatrist had set forth general observations about the mental state of but [the defendant] had not described any by statements [the deal- defendant] ing with the for crimes which he charged. The intro- duction such a for report this limited purpose does not constitute a Fifth Amendment violation. 423-24,
Id. at
This Court followed A.2d is the cornerstone of the Commonwealth’s which *23 Morley, in the instant case. In the defendant argument criminal guilty general charge to a of homicide pleaded at the capacity degrеe guilt asserted a diminished defense case, counsel hearing. At the close of the defendant’s defense joined a the to the Common prosecutor permit motion prior to examine the to psychiatric expert wealth’s defendant specific the as to the issue of intent. The expert’s testifying expert trial court the to conduct appointed Commonwealth’s examination, and, following expert the examination the the forming testified that the defendant the capable specific intent to kill. The defendant was convicted sentenced life the the imprisonment. appeal, challenged On defendant expert testimony as her self- having right against violated affirmed, incrimination. The and on further Superior Court Court, appeal Consistently to this we affirmed as well. Buchanan, a ... a we held “where defendant raises defense, mental-status ... that defendant does not have challenge.” Morley, right raise a Fifth Amendment A.2d at 1257.14
Here,
objections fail for
appellant’s constitutional
several
foremost, appellant’s
reasons. First and
insistence that Dr.
his Fifth
penalty phase testimony
Weiner’s
violated
and Sixth
rights
during
Amendment
because of
occurred
the com-
what
examination
the fact that
the
petency
wholly ignores
record
challenged testimony
upon
shows
was not based
the
testified,
competency
doctor’s
examination. Dr. Weiner
out-
side thе
of the
presence
jury prior
penalty phase testimony,
I,
rejected Morley's argument
14. This Court also
that Article Section 9
Pennsylvania
right against
of the
her a broader
Constitution afforded
Morley, 681
at
self-incrimination than the Fifth Amendment.
A.2d
any
upon
all
that he would offer would
draw
opinions
of his
examina-
gleaned
competency
information
the course
Indeed,
court
N.T., 11/10/01,
the trial
tion.
at 1074-75.
when
Dr.
“would be able to address
as to whether Weiner
inquired
ascertained from
discussing anything”
issues
two
without
“Absolutely.”
responded:
Dr.
competency hearing,
Weiner
trial
of discretion
Id. at 1091. There was no abuse
the factual
Accordingly,
court’s
this assurance.
crediting
claims does not exist.
appellant’s
constitutional
predicate
Furthermore,
appellant’s contention
accepting
even
assurance,
that,
could
contrary to the doctor’s
evaluation,
competency
been based partially
have
light
fail in
constitutional claims would nonetheless
clear,
make
Morley.
appel
of Buchanan and
As those cases
objection to the introduc
any
lant
Fifth Amendment
waived
testimony by
pursuit
virtue
challenged
tion
trial-ie.,
insanity—and
men
both a mental-status defense
phase—i.e.,
extreme
mitigators during
penalty
tal—status
inability
to appreci
mental or emotional disturbance and
it
conduct or conform to the law.15
criminality
ate the
of his
*24
claim fails
Sixth Amendment
Similarly, аppellant’s
counsel at the time of
represented by
because appellant was
examination,
afford
and thus he was
competency
Dr. Weiner’s
that
prior
to consult
counsel
opportunity
ed the
any pertinent
and had an
to raise
opportunity
examination
Indeed, it
counsel
initiated the
objection.
was defense
who
requested
psychological
into
he
a
inquiry
competency when
Motion for Psychological
in March of 2000. See
evaluation
Evaluation,
mo
subsequent
The Commonwealth’s
3/7/2000.
Dr.
examine
and to evalu-
permit
tion to
Weiner to
highlighted
Court
that the evidence
15. We are aware that the Buchanan
incriminating
by
any
statements made
at
there did not contain
issue
defendant,
opinion.
solely
competency psychiatrist’s
but
reflected the
Buchanan,
423-24,
Notably,
U.S. at
201
1,
Amendment and Article
13
the Pennsylvania
Section
[of
Constitution],
...
the
inquiry
discrete
at bar infuses elements
of due
and
process
equal protection
ques
into that broader
Means,
tion.”
773 A.2d
149.
the
Ultimately,
OAJC found
that the statute permitting
impact testimony
victim
did not
constitution,
Tennessee,
violate the federal
relying
Payne
on
v.
808, 827,
2597, 2609,
(1991)
501 U.S.
111 S.Ct.
Although Means did not majority achieve a consensus as to 9711(c)(2) why constitutional, Section is majority a of this rejected Court has since сonsistently challenges, similar to general herein, claim raised that the statute is unconstitution- Williams, al. See 504, 440, Commonwealth v. 578 Pa. 854 A.2d (2004); Harris, 489, 446 Commonwealth v. 572 Pa. 817 A.2d 1033, (2002); Rice, 1052 182, Commonwealth v. (2002). Indeed, Williams, A.2d in this rejected Court argument, which is implicit appellant’s present position, this Court should abandon Means adopt a rule disallowing victim impact on the strength Mea,ns dissenting opinion and the concurring dissenting dissented, Zappala 17. joined by Justice Flaherty, Chief Justice Means, Nigro Justice dissented as well. 773 A.2d at Rice, Zappala employed same where Justice opinion Williams, in Hams at 446. Similarly, 854 A.2d we analysis. constitutional, rejecting is due reaffirmed that the statute punishment and cruel and unusual equal protection, process, Harris, Moreover, majority at 1053. 817 A.2d challenges. in Means trial courts have the Court made clear *27 impact the manner in victim substantial control over which Means, See jury. the 773 testimony presented is A.2d J., id. 158; concurring). at 160 (Saylor, Here, allegation attacking impact victim appellant’s general an that argument as a recites testimony “super aggravator” Thus, rejected. general has his attack repeatedly this Court 9711(a)(2) As to more specif must fail. on Section this in case so extensive argument ic the evidence question, as the into repetitive penalty to call verdicts we 9711(a)(2) not purport that the of does note first text Section impact set limits on the amount of allowable victim testimo Furthermore, not purported our decisional law has ny. the of bright-line limiting quantity impact a rule victim fashion testimony impact may or the number of victim witnesses who contrary, it capital sentencing hearing. at a On the is testify of the trial court to ascertain the sound discretion within evidence impact nature and extent victim which appropriate Williams, See jury. is a 854 A.2d at ultimately placed before notes, are aptly As the where there Commonwealth case, in the amount of available and multiple given victims commensurate likely relevant victim will be impact Here, argue any more extensive. does not ly it number of witnesses why sheer specificity called, facts testimony, or the of their or the of this nature Instead, primarily an he relies prove case abuse of discretion. general the sheer number of witnesses and the dissent’s not concerns Means. We hold that trial court did abuse to introduce by permitting its discretion by the nature of allowed challenged testimony, which was 9711(a)(2) logically per and the extent Section which was appellant’s multiple mitted crimes.18 circumstances Complained Appeal, 18. In his Statement of Matters of on also challenged impact testimony the trial instruction on victim court's
203 the trial court’s is that final contention Appellant’s inis direct in this case of the death sentences imposition in Atkins v. mandate Suрreme of the Court’s contravention (2002), 304, 2242, 335 122 153 L.Ed.2d S.Ct. Virginia, U.S. not execution permit Amendment does Eighth that the the Atkins not anticipate did mentally Appellant retarded. an Atkins claim decision, preserve not raise or and thus he did adequately that he argues Appellant below. nevertheless the course throughout mental deficiencies demonstrated his satisfied certain trial, showing that he upon based being as opinion mentioned in the Atkins criteria are which Appellant’s See of mental retardation. generally indicative that, based counters Brief at 32-33.19 The Commonwealth the record shows by appellant, the same criteria listed retarded, holding that the mentally is not to him. apply Atkins therefore does Atkins, prior its expressly Court overruled Supreme In Lynaugh, v. 492 U.S. S.Ct. holding Penry *28 (1989) categorically not 256 Amendment does (Eighth L.Ed.2d retarded), and held as follows: mentally execution of prohibit no reason to evaluation of the issue reveals independent Our that have judgment legislatures of “the disagree with is matter” and concluded that death recently addressed the retarded criminal. mentally not for a punishment a suitable mentally retard- are not that the execution of persuaded We or the advance the deterrent measurably ed criminals will Construing and penalty. of the death purpose retributive in of our “evolv- light Amendment applying Eighth conclude that such decency,” standards of we therefore ing “places is excessive and that Constitution punishment argu- "confusing inadequate.” court dismissed that as and The trial ment, suggested by noting charge this that it had read verbatim the argument appeal, on Appellant pursue this Court in Means. does therefore, we do not address it further. and categorizes alleged cognitive functional limitations Appellant 19. by according espoused both the to those criteria listed in the definitions (AAMR) American Mental Retardation and the American Association of 3, Atkins, (APA). 122 Psychiatric 536 at 309 n. Association See U.S. S.Ct at 2245 n. 204
substantive restriction on the power State’s to take the life” mentally of a retarded offender. 321, (citation omitted). 122 U.S. S.Ct. at 2252 not, however,
Court did explicitly adopt a standard national retardation, definition for mental leaving point be by decided the individual states. Mitchell,
Recently, Commonwealth v. (2003), A.2d this Court an Atkins reviewed claim where, here, under raised circumstances as the defendant was decision, tried and to the prior convicted Atkins no raised below, claim then Aifcms-type appellate filed his direct brief this Court after the Atkins decision sought its Mitchell, immediate benefit. In that both we noted the defen- and the dant to “muster attempted persuasive health arguments taking expert] testimony out of [mental the context in it presented which was it rereading with Mitchell, hindsight benefit of the holding Atkins.” 839 A.2d at 210. Ultimately, this Court decided not to review Atkins claim and not to remand it for a appeal direct eviden- tiary hearing, explaining as follows:
The issue of mental retardation was pass- touched it ing, but was not the focal point of the health nor it expert], the central focus of either [mental direct or cross-examination. It injudicious would be reach a legal question conclusion on the of mental retarda- tion based on the current record. To the merits of prejudge Atkins claim [the based the limited evidence defendant’s] currently available create may problems future for [the forum, this issue in raising the correct as he defendant] be may then faced with a determination that the issue was previously litigated.
Nor do we believe that a
for an evidentiary
remand
hearing
juncture[
at this
is the
possible
best
solution for
]
exploring this claim. The claim
cannot be
[the defendant]
executed because after the sentence of
imposed
death was
constructional ban on the execution of mentally retarded
capital defendants
is a claim challenging
was formulated
the
of the
authority
carry
state to
out the sentence. Direct
normally
from the
of a sentence
death is
judgment
review
validity
legal
supporting
directed at the
of the
decisions
or the
propriety
process through
conviction
Moreover, this claim
not be lost
sentence was achieved.
will
mentally
if
If
is
postponed.
review is
[the defendant]
judgment
retarded the
of sentence cannot be carried out.
Thus,
considering the current state of the record and
itself,
of the claim
that this
is best
importance
we find
claim
in the
stage.
suited
full
collateral
review
(citation omitted).
Mitchell, 839
at 210-11
A.2d
Mitchell,
controlling
Mitchell
is
here. As in
appellant’s
At-
diligently attempted
persuasive
counsel has
to fashion a
argument
taking
kins
mental health
out of
it
the record
presented.
non-Atkins context in which was
But
in such a
as to make out an Atkins
developed
way
Moreover,
are
parties’ arguments
similarly
claim.
defi-
cient,
are
solely
as both
focused
on the issue
whether
retardation, ap-
the “definition” of mental
appellant satisfied
parently proceeding upon
assumption
that the criterion
from the
in the Atkins
are
plucked
opinion
definitions cited
as to that
That
is errone-
controlling
question.
presumption
ous,
adopt any
as the Atkins Court did not
stan-
purport
dard,
rather,
Mitchell,
but
noted in
left to the states the
as we
task of
the restriction
the execution of
implementing
banning
Mitchell,
the mentally retarded. See
As the case in it at this would be claim, juncture for this pass upon Court to and the more appropriate avenue review the claim is collateral attack if so desires. this claim is Accordingly, prejudice right dismissed without to raise and it pursue upon collateral review under the Post Conviction Mitchell, Act, § Relief 42 Pa.C.S. et See 839 A.2d seq. at 211. Statutory
IV. Review Code, Finally, pursuant to our this Sentencing statutory Court is to conduct a death required review *30 206 determine affirm those sentence unless we
sentences and must that:
(i) passion, preju- the of product the sentence of death was (ii) factor; fails dice, or the evidence any arbitrary or other circum- aggravating of at least one support findings the (d). in subsection specified stance 9711(h)(3). unanimously found one § The Pa.C.S. 42 circumstance as to each murder convic- statutory aggravating tion—ie., another murder that convicted of appellant was issue, 42 at the time of the murder at committed before or 9711(d)(ll). Jury Slip. § See evidence Pa.C.S. Verdict murders, three committed amply demonstrated each; thus, clearly the evidence and he convicted for of that as to jury’s finding aggravator sufficient to the support Furthermore, our review of independent each murder. death, that the sentence of which jury’s record demonstrates appellant’s multiple proffered a consideration of upon followed circumstances, aggrava- then a of the mitigating weighing found, actually product tors and was not mitigators factor, rather, any arbitrary or other but passion, prejudice, of its function. proper discharge sentencing resulted from the affirm convictions and sentences Accordingly, appellant’s we penalty ineligi claim of death death and dismiss bility prejudice mental retardation without based to raise that claim on collateral under appellant’s right review the PCRA.20 concurring opinion files a which
Chief Justice CAPPY join. Messrs. Justice NIGRO SAYLOR CAPPY, concurring. Chief Justice Furthermore, I join I of the majority opinion. the result join except Castille sets forth analysis Justice admissibility of Dr. Wei- part opinion addressing majority’s ner’s I statement expert testimony. agree complete Prothonotary 20. The of this Court is directed to transmit Pennsylvania, pursuant 42 record of the Governor of this case to 9711(i). § Pa.C.S. evidence, admissibility of that the principle the well-settled evidence, is of rebuttal within including admission opinion Majority trial court. See discretion sound Weiss, A.2d 929; v. *31 of the however, the remainder
(2001). from myself, I distance of this issue. majority’s analysis issue arose this majority opinion, out the mapped
As con- the phase the during pre-trial because that appeal, Appel- tended, the trial court and both before mental evidence of offering any from precluded lant should be defense, insanity including presentation the infirmity, Dr. process with the interview impeded because Appellant extrapo- argument, Appellant pre-trial Due to this Weiner. basis for his not a sufficient that Dr. Weiner did have lates thus, trial court abused and, that the testimony argues expert phase. testimony penalty at admitting this its discretion of the foun- essence, sufficiency attacking is Appellant In testimony. expert for Dr. Weiner’s dation re- argument Appellant’s of majority opinion disposes The testimony, attributing admissibility of Weiner’s garding result of in Dr. as a deficiency such Weiner’s any Majority or “recalcitrance.” “non-cooperation” Appellant’s adopts the Common- majority apparently at 929. The opinion process the interview Appellant impeded that position wealth’s admissibility of challenge that cannot concluding Appellant because it reasoning I cannot this agree the evidence. with finding Appellant that “sub- contradicts the trial court’s order Indeed, the process. stantially complied” with interview Appellant’s order to refute uses the trial court’s majority for his Dr. had an insufficient basis that Weiner argument ways. it both majority cannot have testimony. because arguments not persuaded by Appellant’s
I also am during pre- occurred accurately reflect what they do implica- Contrary Appellant’s of this matter. litigation trial that Dr. Weiner tions, represent did not the Commonwealth state mental because testify regarding Appellant’s could not time, but asserted face-to-face interview the lack of offering any be from evidence precluded should Appellant mental infirmity because he did not cooperate the inter- Thus, process. view the parties are talking apples and or- I anges, and would not adopt party’s either analysis this issue.
Rather, join I the result оf the majority opinion on this issue simply because the Commonwealth laid an adequate founda- tion for Dr. Weiner’s rebuttal testimony at the penalty phase. Specifically, Dr. court, Weiner testified before the trial without jury present he had reviewed least 211” sources “[a]t of information in preparing report for the penalty phase, N.T., 11/10/2001, 1074; these sources informa- tion included police reports, personnel, interviews with medical from reports medical personnel, id. at 1084-85. Furthermore, he stated that he-could render an opinion with- out the aid of the Appellant. interviews with Id. at 1074-75. Accordingly, trial court did not abuse its discretion *32 admitting this testimony and the weight to be accorded such jury. was for the
Messrs. Justice joins NIGRO and SAYLOR this concurring opinion.
v. KENNEDY, Appellant.
David R. Supreme Pennsylvania. Court of
Argued March 2004. Decided June notes be,” that and submits testimony there will impact more victim [appellant] or his to tell Appellant that "no one bothered asserts all,” Appellant’s Brief competency examination at attorneys about the allegation, supporting bald an points no evidence but allegation by the record. which is contradicted there is no rule against introduction of more than one impact per witness murder victim. Brief at Commonwealth’s 42. Additionally,: the Commonwealth counters challenge the extensiveness of its victim impact testimony by noting introduced the of six testimony during witnesses his penalty phase case-in-chief. Finally, the Commonwealth notes that the trial judge read the model Means, instruction, proposed by this Court in which advised the jury properly of how impact consider victim when considering aggravating and mitigating evidence. 1925(a) In its Rule the trial opinion, court reasoned “the number of victims in this case necessitated the large that, number of witnesses” and read the Means it because verbatim, instruction there is no merit to appellant’s challenge to the impact victim testimony. We see no error in the court’s ruling. The Pennsylvania Sentencing Code expressly sets forth that, during trial, the penalty phase of a capital “evidence concerning the victim the impact that the death of the victim has had on the family of the victim is admissible.” 42 9711(a)(2). § states, Pa.C.S. The Code further in relevant part, that: The court shall instruct the that if it finds at least one aggravating circumstance and at least one cir- mitigating cumstance, consider, it shall in weighing the aggravating circumstances, and mitigating any evidence presented about the victim and about impact the murder on the family. victim’s 9711(c)(2). § 42 Pa.C.S. Means, In 9711(a)(2) the trial court found that Sections (c)(2) violated the defendant’s under rights both the United Pennsylvania States and Constitutions. The Court, appealed to this and we reversed in Opinion an An- (“OAJC”) nouncing the Judgment of the Court authored by (now Justice) Mr. Justice Mr. Chief Cappy. began The OAJC analyzing precise involved, nature of the rights noting that although basic question “[t]he concerns the Eighth