*1 To alternative”. hold a “reasonable wage is not minimum of insensitivity to the concerns gross of smacks otherwise for the least remuneration arduously labor most those who mandated humanitari- fulfill the does not society, in this Act. Compensation the Unemployment objectives an the order of Commonwealth I would reverse Accordingly, Com- Unemployment affirmed the order Court which Board Review. pensation J., opinion.
PAPADAKOS, dissenting in this joins
565 A.2d Pennsylvania, Appellee, COMMONWEALTH
v. WATSON, Appellant. Herbert Pennsylvania. Supreme Court Argued April 1988. 19, 1989.
Decided Oct. *3 Gelb, for Marilyn Philadelphia, appellant. J. Barthold, McLaughlin Gaele Dist. Ronald Deputy Atty., Chief, Div., Burns, Jr., Eisenberg, Appeals Hugh J. Asst. Graci, Chief, Gen., Dist. A. Atty., Deputy Atty. Robert appellee. NIX, C.J., LARSEN, FLAHERTY,
Before McDERMOTT, ZAPPALA, STOUT, PAPADAKOS and JJ.
OPINION McDERMOTT, Justice.* 9711(h) to 42 judgment
Pursuant Pa.C.S. we review the § of sentence of death on imposed by Herbert Watson Court of Common Pleas of No- Philadelphia County. On 10, 1983, a jury guilty degree vember found Watson of first murder, assault, aggravated possession of an instru- ment of crime. Following sentencing hearing, aggra- determined that the Commonwealth one established circumstance, vating outweighed mitigating which the two A circumstances offered sentence of death was Watson. *4 imposed and the court sentenced to appellant consecutive years imprisonment terms of five to ten and two and one half to for the other years imprisonment respectively five 1986, April request parties, crimes. In at the of both to this remanded for appeal evidentiary Watson’s Court was on all claims of ineffective assistance of hearings counsel. rejected The court those claims and the matter was re- argument disposition. turned to this Court for and * reassigned This case was to the writer. 1982, 15, June following. On
The record established Harding. Sheryl to the residence of went Herbert Watson until years five together approximately Both had lived Shortly the above date. separated two weeks before they sister, Johnson, Harding’s arrived, Roslyne before Watson Vann, to Har- responding boyfriend, Johnson’s Maxilyn Harding get to call, to the house telephone drove ding’s car, outside Vann’s they her While waited two children. car, shots into the two and fired three approached Watson Johnson, seeing approach, Watson struck Vann. of which Watson, however, shot the Harding’s locked front door. There, grabbed he Har- upstairs. proceeded lock off and her hiding two from the closet where she ding children, reloading gun After and shot her twice. returned, time, room, Harding one more he shot leaving the and then shot himself. Court to ascertain all policy
It
this
was sufficient
capital
presented
cases
the evidence
whether
degree murder.
finding
to
of first
Common
support
(1982)
16,
500 Pa.
The “other argues evidence” Watson his attor should ney investigated and presented to the consists the results of psychological and psychiatric testing. eight arrest, after About months his at request of his court-appointed attorney, was by Watson examined Dr. K. William Hylbert, fourth-year a in psychiatry resident Temple at University Hylbert Medical School. submitted a report written to counsel following a minute forty-five evaluation of wrote, Watson. At the end of the report, he “It does seem that Mr. was psychotic Watson after the incident, I but cannot be certain as to his mental status at time I shootings. do believe that he had diminished capacity to understand doing. what was He psychotic is not now.” court-appointed
Watson’s then attorney requested and granted was funds for further which testing, per- was Cooke, formed Dr. a clinical Gerald and forensic psychol- in 1983. ogist, June of Cooke did not prepare report full counsel, having for been that private representation advised did, on however, had been retained Watson’s behalf. He provide summary findings, his which were as follows: car, aggravated His assault on man in the Maxilyn Vann, in my opinion, precipitated by was delusions and hallucinations in Mr. resulting Watson that he perceiving Vann, and danger needed shoot Mr. before Mr. Vann shot him. He Mr. believed Vann be his common- wife’s boyfriend law Vann’s actually perceived Mr. Thus, shooting face as Bernard’s. this appears to meet However, criteria. shoot- voluntary manslaughter his ing girlfriend, though Sheryl Harding, committed agitated psychotic, depressed, opin- while was my ion, deliberate intentional and I see no basis or insanity diminished capacity shooting. Cooke also contacted newly attorney, Watson’s retained Small, to advise that he had Lewis conducted an evaluation. discus- however, pursue substantive did not attorney, The *6 mental of opinion his Watson’s Cooke about sions with condition. also examined Kool, psychiatrist,
Dr. Kenneth forensic He made 18, 1983, request. at Watson, Small’s August on and his evaluation report written of diagnosis or no final at trial. to testify not called was counsel, Mirsky, Kenneth hearing, trial evidentiary At the Small, as testified Lewis assigned the case had been who The doc- witnesses. offering for not these his reasons to if offered opinions they to the would as tors testified called. to trial Hylbert prior spoke to he with
According Mirsky, helpful, and testimony not that his was and determined for case the Commonwealth’s support lend to might indeed to Mirsky was unable Although premeditation. proving him led to this said that Hylbert what specifically recall hearing evidentiary conclusion, testimony at the Hylbert’s that testified Hylbert assessment. Mirsky’s substantiates killing Watson that at the time he found no evidence right between the difference appreciate to was “unable of his consequences the nature wrong appreciate or to “the Watson had his belief that He also stated acts.” carry out plan premeditative abilities and cognitive that of his belief report in his written The statement acts.” to understand what capacity diminished “had a Watson to be a not intended explained, was doing,” Hylbert was capacity, of diminished but concept any legal reference to anyone as a judgment psychiatrist reflected his merely some in need of on himself and shoots “is gun who turns judgment function.” insight improved form of judge, of the trial who agree the conclusion We must appellant evidentiary hearing, at the presided also coun- proving meet his burden has failed to utterly expert as an at producing Hylbert in not sel was ineffective presumption has he failed overcome trial. Not Commonwealth, by having acted properly, that counsel Hylbert testify at the hearing, produced evidence demon- strating the reasonableness counsel’s decision.
He next asserts that counsel ineffective failing for Cooke, receiving contact after copy summary evaluation prepared prior He argues counsel. of this results examination would have supported claim that the “in killing passion,” was done the heat of which in turn the degree would have reduced of homicide to volun- tary manslaughter. stated,
Although it is precisely not inef- analysis fectiveness claim of necessity must involve two components, because the counsel, evidence indicates that trial Mirsky, Small, colleague, and his each had different roles *7 events. testified that he not Mirsky being did recall ad- vised, Small, either or by by Watson that Watson had been by correspondence evaluated Cooke. Cooke’s was with Small, and there is no indication that Mirsky was aware of the summary evaluation letter prior to trial. As to Mirsky, then, the claim of investigate present failure to and to available psychological testimony unravels for of lack evi- However, dence that knew of Mirsky availability. its be- cause it was Small who was to represent retained Watson case, prepared who initially, at least Watson’s assertion that his counsel was ineffective in not least at interviewing Cooke encompasses Small’s course of action as well. In conducting this review are not we unmindful of present the fact that counsel to demonstrate the attempted unreasonableness of calling Small’s decision without Small testify, to choosing present only instead the testimony of and Mirsky. doctors These provided witnesses no in- sight into the reason Small acted as did.
In assessing the decision not to follow-up the initial Cooke, by contact must apply we be careful not to hindsight analysis. question The is whether an attorney, knowing the circumstances the crimes his client been had with, charged upon receiving letter Cooke’s could reason- ably decided that it would have not be worthwhile to consult with him further. From Cooke’s testimony, and from the letter itself, that some time before apparent it is letter 1983, phone talked on the 18, Cooke August on was written of Watson. having done an evaluation about with Small August request- Kool Small, however, had on written informal salutation From the he evaluate Watson. ing that was well letter, it inferred that Small may be of Small’s Thus, he received at the time acquainted with Kool. evaluation, antici- apparently summary Small Cooke’s source. from a more familiar report pating shooting of that the expressed opinion letter Cooke’s ag- “though psychotic, committed while Harding, Sheryl and intentional and depressed, was ... deliberate itated and capacity.” or diminished insanity no basis was] [there with the letter, familiarity indicated a Earlier in the Cooke his assessment of manslaughter, and concept voluntary stood marked contrast to shooting Maxilyn Vann Harding. This shooting Sheryl his assessment of the pursued reason for counsel not have suggests good alone testimony expert. as an Cooke’s advised, by either Watson Mirsky being also did not recall The Small, been examined Kool. or that Watson had fact, however, based on the other lower court found as at some hearing, Mirsky at the presented evidence involvement in the must become aware of Kool’s point case, family since he advised Watson’s repeatedly paid to be before he would be available to Kool’s fee had *8 from the record that the testify. The court also found as witness was that expert reason Kool was not used an for his services. family pay Watson and his were unable to counsel’s failure to Present counsel characterizes derisively sug- and “pocketbook making” Kool as decision present demonstrates gests expert testimony that the absence of inadequate present to de- opportunity that Watson had knowingly discon- be that Watson ignored fense. It cannot in fa- court-appointed counsel representation by tinued his counsel had attorney. Appointed privately vor of a retained evalua- granted psychological funds for and been sought Under these tion, performed by been Cooke. which had circumstances, inability the to secure the services of a private cannot psychiatrist be attributed to any professional lapse on the part counsel. There is no basis for the argument advanced that presently might counsel have been obtaining successful in court approval for payment of Furthermore, Kool’s fee. testimony Kool’s at the evidentia- ry hearing nothing did present substantiate counsel’s free, assertion that he willing would been to testify for and thus the argument that trial counsel was ineffective for not exploring this must as well. possibility fail Ultimately, question becomes whether Watson received ineffective assistance Mirsky perpetuated when initial Small’s decision Cooke, not to use the court-funded evaluation even after it became apparent that Kool appear. would not
It is true that Watson’s counsel at the evidentiary hearing succeeded Cooke having express opinion an that Watson had acted “in passion.” the heat of According Cooke, he was unaware at time he evaluated that killing Watson malice, could be both intentional and lacking in and on this be as voluntary manslaughter. basis classified He had applied understanding his of the voluntary manslaughter Vann, criteria to shooting is, of Maxilyn that that had Watson an unreasonable he belief that was danger and acted to protect himself. Because “unreasonable belief” criteria did not apply killing of Sheryl Har- ding, however, Cooke could find basis for no voluntary manslaughter this shooting, expressed as to opinion with, terms he contrasting was familiar that Harding killing was “deliberate and intentional.” He did not assess whether Watson’s psychological condition could be characterized as “a sudden passion” and intense because counsel had not an sought regard evaluation in unaware a finding that such be could relevant. More- over, in characterizing the Harding shooting as “deliberate” he had not intended to offer an opinion Watson acted malice. being post-trial After informed by counsel a person’s might emotional condition be such it negate could element of legal bring malice a killing, *9 intentional, voluntary of man- designation within though that had Watson’s opinion his expressed Cooke slaughter, the summa- receiving with him after consulted trial counsel in terms related to him questioned letter and evaluation ry defense, given he could have testimo- passion” “heat of helpful. might have been that ny negate indeed passion may intense Although sudden murder, of such finding to a necessary of malice element and it provocation, serious precipitated by must be passion Notwith- to cool reflection. preclude so sudden as must be that evidence of assertions standing appellate counsel’s anger, in the form of of record in this case was provocation Harding that in that Watson was aware rage jealousy residence, he to her at the time went boyfriend had a new not even a the lower court that there is agree with we legal provocation sufficient of evidence to establish scintilla claim. manslaughter voluntary the victim to a by support Harding’s approximately of residence Watson moved out application He made shooting. before the two weeks shooting picked up gun days two purchase a before shooting. There a mere two hours before gun relationship terminat- shortly after their also evidence ed, a knife and threatened Harding threatened Watson conversation with her. during telephone kill her most, testimony could have established
At Cooke’s condition, is, the exist- nature of Watson’s emotional then, uncertain grasp Even Cooke’s “passion.” ence of evidentiary hearing, at the legal concepts, as demonstrated of Wat- seemingly contradictory assessment prior, and his son, open exposure on cross-examina- have been would tion, liability than an asset. making his more testimony of a “heat of of the other elements Given the absence defense, failure to make use Cooke’s counsel’s passion” representation. cannot deemed ineffective evaluation be from acknowledged evidentiary hearing at the Counsel perceived danger psychiatric evi- experience presented. His if not carefully dence could “backfire” course, passion” defense framing a “heat chosen *10 from the arguing solely nature of the events and from the character, evidence of Watson’s good diverted attention , from a away detailed which would analysis, exposed have the missing links the chain. That this course was unsuc- cessful does not establish that it was unreasonable.
The appellant also offers a argument brief counsel was ineffective for to failing produce the testimony of the physicians who treated Watson for his self-inflicted gunshot argued wound. It is that without this testimony, the record failed to indicate the gravity of the harm Watson evidence, had done to himself. Such it argued, in con junction condition, with the evidence of psychotic Watson’s would supported an inference that the of shooting Harding was a crime of passion.
This issue cannot be sustained as a claim of ineffective assistance of counsel for simple reason that trial coun- sel considered and rejected approach appar- reasons ent on the record. Trial counsel advised the court that he to portions wished introduce of Watson’s records hospital for the above stated purpose. Although the court was skeptical of the documents, relevance of these the Common- wealth indicated its willingness stipulate to the admission of the if records were they admitted their entirety. however, Counsel sought only limited admission of the records to establish the extent of Watson’s injuries, rejected suggestion that he produce the treating physi- cians for this purpose. It is apparent the medical records in their entirety give evidence that Watson was rationale, lucid and irrational, to the contrary picture of an psychotic man the defense sought to portray. The testimo- of ny physicians on cross examination would likewise open have been to such revelations contrary to the defense being presented. Thus if granted even it is for the sake of argument relevant, that such evidence would have been point given substantial doubt the absence of the elements of the “heat of passion” above, defense as noted counsel plainly had a reasonable basis for his decision not pro- potential outweighed The risks far evidence. duce this benefits. claims advanced have rejected
Because we guilt of trial at which Watson’s validity go assault, murder, possession aggravated degree first established, convictions are those a crime was instrument to review the sentence duty It our affirmed. becomes sentence was de- whereby that proceedings death and termined. as- claim, framed in terms of ineffective first
Watson’s counsel, that determined charges sistance *11 criteria under the constituted improperly his sentence was 1770, 20 Illinois, 510, 88 v. 391 U.S. S.Ct. Witherspoon of Texas, (1980), 38 v. (1968), 448 U.S. Adams 776 L.Ed.2d Witt, 844, L.Ed.2d 83 Wainwright v. 469 U.S. S.Ct. asserted, transcript on the (1985). It is based reporter, the court filed voir dire proceedings originally by venire, counsel Watson’s members that as two cause, challenge for and as to in the Commonwealth’s joined the chal- defense counsel alone made juror, one prospective Witherspoon grounds. light In on lenge for cause seeking defendants estab- by capital litigation extensive to excuse for permitted state should not be lish that given penalty, death persons oppose cause who persons insistence that such Supreme Court’s United States opposition for cause where their eliminated may be the law following them from prevent so firm that it would so, to do it against required the defendant where ruling for his a defendant’s interests patently against seem would prospec- of a join remove or in the removal own counsel to Upon of the entire for this reason. examination tive juror that the however, with the lower court record, agree we challenges is wholly made such claim that Watson’s counsel frivolous. claims, determined of these the court respect
With to two to Watson’s coun- erroneously attributed transcript that the by attorney. made the district challenges sel that had been cases, following inquiry reporter, In the court one these court, by submitted stating a letter that he had verified from the original Notes of Testimony that the Official Notes contained a typographical error and erroneously re- corded cause,” “Mr. I Mirsky: challenge for what should have been recorded as “Mr. Bello: I challenge for cause.” cases, In both the record of jury kept selection court clerk attributed the challenge the Commonwealth. Upon being questioned at the evidentiary hearing, Mirsky denied that he challenged any potential jurors cause on this basis and insisted that the transcript was in error.
Present counsel floats the charge that Watson will have been denied due if process effect is given to this correction of the record which has occurred outside the procedures of 9030(c) Pa.R.Crim.P. and Pa.R.A.P. 1926. Those rules pro- vide that “any difference as to ... whether the record truly discloses what occurred in the lower court ... shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth.” We fail to see how these rules have been violated. Since the appellant raised the issue and indeed produced Mirsky, who offered his recollection of the events, he cannot claim a lack of notice. The evidentiary hearing itself provided the appellant with every opportunity *12 for objection, argument, evidence, introduction of and what- ever other might means be available to establish the cor- rectness of the transcript on which the ineffectiveness argument matter, was founded. This as the Bard of Avon it, would have is much ado nothing. about too, So is the third claim that counsel “participated” prosecutor with the in a removing juror who opposed to capital punishment. instance, In this Mirsky challenged for person cause a who was the friend of a murder victim. also Mirsky elicited the opinion that this man’s close rela tionship with two police officers probably would affect his ability to fair impartial. be and The Commonwealth at to tempted venireman, “rehabilitate” the but after ascer taining that he would impose be unable to the death penalty case, even in an appropriate prosecutor the interposed a transcript Mirsky The reflects that for cause. challenge challenge. following prosecutor’s the “Yes” commented in” the “participated is argued Mirsky From this it now venireman, his the interests of against of this removal client. hearing, transcript evidentiary at the
Upon reviewing he had not specifically why to recall Mirsky was unable assented, prosecu- had when objected, seemingly indeed however, did, that there challenge. agree his He tor made he, for the why sound reasons good seemed be and sit client, this man to his would not wanted benefit the district why well as other reasons jury, on the as testimony him removed. Mirsky’s would want attorney reading from apparent to confirm what is only serves in context, acquiesced although Mirsky transcript so he did not do prospective juror, of this the removal opposition penalty. death juror’s because acted prove has failed to that counsel appellant Because the interests, his claim disregard to or in contrary rejected. ineffective assistance of this latter disposition record makes Though the difficulty it illustrates a inherent relatively simple, issue selection generally of trial conduct hoc review post Put there can be times when particular. simply, strategy objection stand mute where an reasonably may counsel for succeed, acting pursuant strategy and still be might in the example, present of his client. For the benefit a context, peremp counsel is inclined to exercise if defense prose challenge prospective juror, but tory to remove though for cause even Wither- challenge cutor makes met, not to the objecting been criteria have not spoon result counsel achieves desired challenge, prosecutor’s challenge peremptory saves a removing juror however, might reveal transcript, The later use. challenge, of a grant Witherspoon facially improper challenges peremptory exercise of vagaries of the given the *13 himself, lost, even to be strategy might counsel’s memories. fading Scrupulous of time and passage presumption adherence to the attorneys act clients, their interests of and insistence that claimants meet proving the burden of assertions that their attorneys could action, have had no for their perhaps reasonable basis best and resolution of this difficulty.
In we have also reviewed the voir dire light transcript to determine whether nine other potential jurors improperly permitted were stricken from the panel. be The appellant asserts that because these jurors were not questioned extensively to determine opposi whether their penalty tion to the death was such a firm conviction that it prevent would them from their oath following and imposing case, penalty appropriate the death an the Common challenge wealth’s cause should not have been sustained some, Witherspoon. under As to we are satisfied that the prosecutor’s questioning adequately the validity established the challenge, and the absence of attempt to rehabilitate does not constitute ineffective assistance. See Common Peterkin, wealth v. 299, 320, 511 Pa. 513 A.2d (1986). others, even if we assume that the Wither- As to spoon record, criteria not were established on there is no basis to conclude that Mirsky allowing ineffective cases, them to In may be removed. several we infer readily why might defense counsel not have wanted the members jury: e.g., venire to serve on the one’s mother had the victim of a rape, daughter been one’s had been rape, victim of a and one was a close friend several short, In policemen. appellant has failed to substanti argument; ate his we are satisfied that the jury which tried his case illegally was not constituted. challenges imposition
Watson also of the death sentence. The record indicates that the jury found one circumstance, aggravating the commission of the of “[i]n fense the defendant created a knowingly grave risk of person death to another in addition to the victim of the offense,” 9711(d)(7), outweighed Pa.C.S. which § found, mitigating circumstances defendant has no “[t]he convictions,” criminal significant history prior and that
67
extreme mental
the influence of
defendant was under
“[t]he
9711(e)(1), and
disturbance,” 42 Pa.C.S.
or emotional
§
the
argued that
The Commonwealth
(e)(2), respectively.
on the
could be found based
circumstance
aggravating
during
shot
Watson’s
that
Vann had been
Maxilyn
evidence
residence,
chil-
Harding’s
that
two
Harding’s
approach
fired a shot that
in
closet when Watson
dren were
the
closet,
officer
police
and that the
the wall near the
entered
from
gun
at the scene kicked the
Watson’s
who first arrived
the
address whether
hand as he
on the floor. We
lay
because we be-
endangered by his conduct
children were
the
the
found that
jury properly
were and that
they
lieve
a
risk of death to anoth-
knowingly
grave
defendant
created
(d)(7).
regard
appellant
In
asserts
er
under
this
person
no
appellant knowingly
there
evidence that the
he did in fact
danger to the children or that
any
created
children,
addressing
In
during
shooting.
endanger the
of the evidence test.
apply
sufficiency
this claim we
Albrecht,
603,
510 Pa.
In
lived with the victim
appellant
record reveals that the
lived
five
the victim
approximately
years,
knew
might
the children
be
her two children and knew that
We
shooting.
the time of the
believe
the house at
he
to find that
“know-
jury
sufficient for the
evidence was
age
In
day
to the children.
a
danger
created a
ingly”
are
can
shootings
prosaic,
victims of
where accidental
per-
endangering
“knowingly”
an individual is
infer that
gun
any
area where
individual uses
son when that
(d)(7)
interpretation
This
that the others could be.
knows
decisions
legislative
prior
enactment and
is supported by
Act,
Firearms
18
Uniform
Pennsylvania
See
this Court.
Pa.
519
Logan,
v.
seq.;
6101 et
Commonwealth
Pa.C.S. §
Moser, 519 Pa.
(1988);
v.
607,
A.2d 531
Commonwealth
Smith, 518 Pa.
(1988);
v.
441,
Addressing
endanger
he did
fact
whether
appellant
entered the
record reveals
when
bedroom, he reached into the closet and removed the vic-
victim,
son,
leaving
tim’s
and then the
the victim’s
daughter
N.T., 10/3/83, p.
in the closet.
188. The record also
Daryl
appellant
after the
removed Mrs.
immediately
reveals
twice,
closet, he
her
Harding
gun
from the
shot
reloaded
*15
turning
gun
the
on himself.
again,
and shot her
before
reloading
gun, Daryl
the time the defendant was
During
to the
through
left
the closet
another room connected
that there
closet. At trial the Commonwealth established
near the door frame to the closet. The
lodged
was a bullet
failed to
appellant asserts that the Commonwealth
establish
fired; however,
of the
he
the
that
this was one
bullets
that it was.
supports
finding
record
prove
The
offered to
this came from two
evidence
sources, the
officer who found the victim and the
police
Harding’s
Daryl.
in the
son
The
appellant
bedroom
bedroom,
the
officer testified that when he entered
in
near the closet door
hole
the wall
observed
bullet
N.T., 10/14/88,
244.
testified that the hole
p.
Daryl
frame.
N.T., 10/3/83, p.
to the
prior
shooting.
was not there
No forensic
was offered to establish
testimony
400-01.
by
appellant
of the four shots fired
caused the
which
there,
hole
the fact that the
hole was
establishes
but
bullet
in
Daryl’s
danger.
life was
in the
testimony
Daryl
The
established
was
clearly
shots
fired and that
closet
the first two
were
when
in
line of fire. From
Daryl
appellant’s
closet and
were
inferred that
reasonably
could have
jury
evidence
The fact
during
killing.
life
Daryl’s
endangered
was
(d)(7)address-
import
is of no
Daryl
lucky
because
an actor’s conduct. See Common-
es the risk created
by
(1988)
Smith, 518 Pa.
15, 45,
246,
A.2d
wealth v.
“grave
created a
risk of
found that defendant
(jury properly
an
danger
being
by
struck
others were
death” where
Thus,
bullet).
viewing
errant,
through”
or “pass
ricochet
to the Common-
light
most favorable
this evidence
life was
wealth,1
Daryl’s
infer
properly
could
of the murder. Circum-
during the commission
endangered
sufficient.2
stantial evidence is
has
penalty
case in which the death
Lastly,3
all
statute
to review
imposed,
obligated
we are
by
been
is not the
and to assure that
the death sentence:
record
factor;4
arbitrary
any
or
other
product
passion, prejudice
finding
circumstances
aggravating
is supported
(d);5
or dispro
is not excessive
specified in subsection
in similar cases....6
penalty imposed
to the
portionate
Frey,
428,
v.
to Commonwealth
504 Pa.
pursuant
Further
denied, 469 U.S.
963,
cert.
700,
(1984),
443, 475 A.2d
707-08
(1984),
obligated
are
We
42
by the record.
supported
it to be
stance
believe
preju-
no
9711(d)(7).
any
is
indication
There
Pa.C.S. §
record,
factor,
from the
dice, passion
arbitrary
or
to,
found,
right
they
as
had
jury. They
infected the
their
mitigation.
no
Since
acceptable
the
offered
evidence
607,
(1988);
Logan,
A.2d
v.
519 Pa.
549
531
1. See Commonwealth
455,
(1984).
Stoyko,
v.
5. 42 Pa.C.S. § 9711(h)(3)(iii).
6. § 42 Pa.C.S. situated,7 similarly others disproportionate is not verdict for theirs. another judgement we cannot substitute reasons, the convic- we sustain forgoing upon Based sentences. and affirm the tions in the Justice, not STOUT, participate did Former of this case. decision dissenting opinion. C.J., concurring and
NIX, files a dissenting ZAPPALA, J., concurring files a opinion. Justice, dissenting.
NIX, concurring Chief
I. the claims of the Court that opinion I in the While concur guilty plea to the of counsel addressed of ineffectiveness merit, that counsel agree I cannot without this trial were the prosecutor participating not ineffective was capital opposed who was juror removing prospective concerns have been counsel’s may Whatever punishment. the facts of this case under prospective juror, about prospec- when that evaporated those concerns should death not impose that he would made clear juror tive case. appropriate even an penalty charges acquittal of outright The of an possibility during the defense hope The only nonexistent. homicide, and the degree to lower guilty plea was The most realistic unlikely. of that effort was success unanimously agree would not jury was that objective on this venireman’s views sentence of death. Once upon a elicited, counsel should have had been punishment capital disproportionate in that his appellant that his sentence is The claims 7. aggravating wherein a has found case of record is the *17 9711(d)(7) outweigh mitigating to § in 42 Pa.C.S. circumstance (e)(2). 9711(e)(1) argument This of 42 Pa.C.S. § circumstances jury these where a has found ignores that his is the case the fact a argument presupposes This further specific circumstances. upon aggravat- one imposed a sentence of death based has never mitigating Compared to “similar cases” ing circumstances. and two l(h)(3)(iii). disproportionate. § See 42 Pa.C.S. 971 sentence is not his
71
fought
resist a
to
aside and
all other considerations
put
least, he should have
very
At the
juror.
of that
challenge
for
challenge
grant
a
exception
an
to
preserved
charitably refers
as
the majority
I deem what
cause.
example
a
of ineffec
“acquiescence” to be
clear
counsel’s
v.
Commonwealth
John
counsel. See
tive assistance of
(1981);
v.
546,
1175
Commonwealth
son,
Pa.
437 A.2d
496
529,
(1981);
437
1166
Commonwealth
Fassett, 496 Pa.
A.2d
93,
(1978);
101
Commonwealth
Holzer, 480 Pa.
389 A.2d
v.
(1967),
denied,
265,
A.2d 540
cert.
Phelan, 427 Pa.
234
v.
(1968);
920,
1803,
II. finding of the disagree majority’s I also must 9711(d)(7),with re- circumstance, 42 aggravating Pa.C.S. § of the victim. the children danger by faced gard to permits finding 9711(d)(7) explicitly of the statute Section the defendant has circumstance where aggravating of an per- risk of death another grave created a “knowingly son____” thinking, a find- added.) To such (Emphasis my by the defendant necessarily requires an awareness ing majority, The to others created conduct. danger finding upon sug- facts which however, premise would knowingly danger created gest that the defendant either endangered another fact person, to another or that 19). the distinction at This standard blurs person. (Slip op. endanger- reckless “knowing” endangerment and between offense, and not 18 Pa.C.S. ment, separate which circumstance aggravating which an upon one of the facts found. may be
72 facts, of sequence gunshots the the the
Under instant has failed to that not clear. The establish Commonwealth fired, time the shots were was aware the at the appellant, fact he “knew presence in the closet. The that Daryl’s of house” is insufficient to the children be in the might endangered a their lives. finding knowingly support 607, A.2d 531 519 Pa. 549 Logan, Commonwealth v. See Moser, 441, Pa. A.2d 76 (1988); v. 519 549 Commonwealth the (1988). aggravating Since this was circumstance consider, had the sentence of death cannot be the imprisonment A sentence of life should allowed stand. imposed. be
ZAPPALA, Justice, concurring dissenting. writer, matter was of reassigned, As the from whom this of the claims of trial portion Opinion disposing the counsel, of I cannot do error and ineffective assistance I than extent. from join Opinion other the to that dissent of the death penalty. the affirmance brings of Vann Examining shooting first whether the circumstance, on Harding killing aggravating within not. The these facts I would hold that it does Common- (d)(7) suggests ap- circumstance aggravating wealth logically temporally which are plies because offenses are of part related and share common issues of law fact Hude, v. single episode, citing a criminal Commonwealth (1983). reasoning in Pa. A.2d 177 The flaw this meaning in principal question is that Hude episode” barring in the phrase “single criminal statute prosecution a former for one offense where prosecution (d)(7) already applies had occurred. Section another offense and the occurred grave not where the risk death murder “single episode,” but where the defendant criminal death “in the of” the grave created risk of commission Here, prelude on occurred as a murder. assault Vann of, to, the murder. not the commission I danger, disagree Similarly, minimizing without may danger assertion that whatever Commonwealth’s implicates the scene arriving officer at existed to the af- These actions occurred circumstance. aggravating this properly not offense and are commission of the ter the very purpose as is the determining, considered circumstances, partic- whether aggravating enumerated meriting the extreme type murder is of a degree first ular of death. punishment *19 is of the clearly type of to the children danger
The risk I (d)(7). thoroughly of language the contemplated by sentencing the of the trial and of transcripts scrutinized however, must conclude that the Common- proceeding, this circumstance proving its of did not meet burden wealth otherwise, the ma- holding In a reasonable doubt. beyond use merely by repetitive of certainty erects a facade jority “clearly”. of the word from two point came prove
The evidence offered to and Watson sources, the officer who found victim police The officer stated son Daral. Harding’s in the bedroom and in the wall near the closet a bullet hole observed her, victim, was frame, when he noticed door and that the leaning against the wall sitting against with her back offered to establish testimony No forensic was doorjamb. the hole. The shots fired caused of the several which twice, then left Harding shot showed that Watson evidence shooting again, her and that room and reloaded before she had shot to move even after been Harding was able this, that the hole light any In inference three times. passing through first caused one of the bullets by shot or the bullet Watson Harding, and not the third bullet reasonable with, beyond a has not been established himself necessary This Commonwealth’s point doubt. Harding’s testimony it from the proof appears because during any longer no the closet daughter was closet before Watson and Daral had left shooting, shooting time Harding a third before returned and shot made one by the closet was if the hole near Only himself. said that Watson Harding could it be of the first shots at Unlike of death to the children. grave a risk created find that establishes nothing testimony I majority, fire these Daral were in the line of that the closet and first two shots. failed to produce
More
the Commonwealth
significantly,
grave
risk
“knowingly”
created
any evidence Watson
testified that he
Harding
the children. Daral
of death to
closet,
had doors to his room and
had entered the
which
room,
already
his
and sister were
his mother’s
after
mother
sister was behind
there. His
indicates
his
testimony
positions
The relative
him
in front of his mother.
Watson know-
is critical to the issue whether
the three
risk,
the Commonwealth
grave
created
because
ingly
Daral, that Wat-
from the
described
argued,
positioning
presence when
have been aware of the childrens’
son must
her
from the closet into
bedroom.
Sheryl Harding
he pulled
line with Daral closest
However, if the three were
middle,
room,
sister in the
and his mother
the door to his
next,
Sheryl Harding’s
to the door to
then with reference
next,
first, her
room,
daughter
she would have been
Sheryl Harding
pulled
Watson could thus have
then Daral.
*20
presence.
of Daral’s
aware
being
into her room without
441,
(i) the nature of conduct if the element involves con- circumstances, he is aware his the attendant exist; or such circumstances of that nature duct is conduct, he is (ii) involves a result of if the element his conduct will it certain that practically aware such result. cause finding support a may circumstantial evidence
Although was aware doubt that a defendant a reasonable beyond grave also created a committing murder his conduct victim, I persons risk of death to other than the am not proof. satisfied that the evidence here reached this level of 9711(h)(3)(ii), I Pursuant Pa.C.S. since find that § “the evidence fails to of an support finding aggravating (d),” circumstance I specified subsection would vacate the imposition sentence of death and remand for of a sentence imprisonment. of life
Argued April 1989.
Decided Oct. 1989.