*1 Pеnnsylvania, COMMONWEALTH of Appellee, Raymond WHITNEY, Appellant.
Supreme Court of Pennsylvania.
Argued Oct. 1985. July Decided 1986. *3 Moore, appellant. for Philadelphia, Thomas W. Boland, Div., Lawler, William Chief/Appeals B.
Robert Gordon, Attys., appellee. Dist. H. Asst. Arnold FLAHERTY, LARSEN, NIX, C.J., and Before zappala hutchinson, McDermott, PAPADAKOS, JJ. THE JUDGMENT ANNOUNCING
OPINION THE COURT OF McDERMOTT,Justice. jury aby was convicted Whitney, Raymond
The appellant, two robbery2, of two counts burglary of two counts generally3, instrument of of an possession counts crime— assault5, rape6, threats4, attempted indecent terroristic committed These crimes were degree7. first murder adjoining two invaded appellant in which during episode an knife first home at of the occupant He robbed homes. occupant of the female rape attempted He point. the infliction occupant by second; the male he murdered rendition Following jury’s wounds. stab twenty-eight hearing was conducted sentencing guilt the verdicts Code8, 42 Sentencing with Section accordance in a determination 9711, resulting Pa.C.S. § Post-verdict to death. sentenced should be appellant sentenced formally denied motions were murder convic first with the in connection to death *4 1. 18 Pa.C.S. 3502 § Pa.C.S. 3701 18
2. § 907(a)
3. 18 Pa.C.S. § Pa.C.S. 2706
4. 18 § 3126
5. 18 Pa.C.S. § 901, 3121 §
6. 18 Pa.C.S. 2502(a) §
7. 18 Pa.C.S. 3, 46, 1974, 213, 26, as amended. § No. P.L. March 8. Act of 236 jury’s findings9. appeal in accordance with the Direct
tion
of sentence
taken to this
judgment
from the
Court.
9711(h)(1)
722(4).
42 Pa.C.S.
See
§
It is the
of this
in
cases
practice
penalty
Court
death
sufficiency
to review the
the evidence to sustain the
in the first
or not the
conviction of murder
whether
contests the issue.
appellant
Zettlemoy
Commonwealth
16, 26-27,
3,
937, 942,
(1982),
er,
n.
454 A.2d
n. 3
500 Pa.
970,
2444,
denied,
The adduced at trial disclosed that evidence 10, 1981, a man access gained 4:00 A.M. on October before through floor of Juliana Minor apartment to the second man, night later that Ms. Minor identified window. she in bed. lay came into her bedroom where appellant, knife, he threatened to kill her if she wasn’t Armed with a him; she recognized responded He asked if she quiet. “wrong” He then announced that he was she didn’t. Nonetheless, jewelry he items from her stole apartment. wire, box, and soon thereafter left telephone cut her ledge. onto a through a window apartment entered the of Jehad Moments later Murtaza, wife, doors just husband and two Taha and Mahin on the same floor. Real- apartment from Ms. Minor’s away got Mr. Taha out apartment, someone was izing that investigate. Mrs. living to the room of bed and went sentence, appellant was sentenced to consec- In addition to the death 9. totalling remaining imprisonment on the convictions terms of utive forty-one years years eighty-two months to eleven five and one-half merged one of the threats conviction with The terroristic months. robbery convictions. *5 attempted Murtaza heard someone hit her husband and she police phone. to contact the on the bedroom she Before get through she saw her husband at the was able door, face, running blood from his chest and with bedroom standing holding behind him a knife to his neck. appellant hung up phone appellant As Mrs. Murtaza threw Mr. Murtaza, approached holding Tаha to the bed and Mrs. his Appellant money knife to her chest. demanded and jewel- case; gave appellant him from a candle ry. jewelry She wearing. jewelry removed what the victims were forcibly Mrs. Murtaza and tore rape He then announced his desire to carrying off her brassiere. Before these intentions further he his demand for and was told Mrs. repeated money, room in her money living Murtaza that their was up ordered Mr. Taha from the bed and purse. Appellant living bleeding him toward the room. Still Mr. Taha pushed bathroom, point appellant headed for the at which attacked him forced Mr. Taha into the again. Appellant and stabbed emptied room where Mrs. Murtaza the small amount living expressed change purse Appellant in her onto the floor. In a relaxed and cool” manner disappointment. “very his container and refrigerator, glass he took out a opened Murtaza, Then advanced on Mrs. drank some water. he her, his touched her breast and reiterated intent to hugged He struck her and threw her to have intercourse with her. protested, floor to her husband. Mr. Tahа but was next put ordered to his neck down. struck the face and him stated Appellant again repeatedly then stabbed rape kill and then would her. going he to Mr. Taha that was out his pants and drew point appellant opened At this began appellant; to scuffle with penis. Mr. Taha arose the street apartment and onto Mrs. Murtaza ran out of officers, Sergeant Wagner and police she two where saw where apartment directed them to the Officer Miller. She Mr. crouched over officers observed police Appellant Taha’s chest. Taha a knife out of pulling as a subsequently Mr. Taha died arrested. immediately to his body. stab wounds twenty-eight result of support is sufficient that the evidence are satisfied We guilt. verdict of jury’s *6 sufficiency of the evi- he did not contest the Although of the evi- weight does contend that the appellant dence due to capacity his diminished clearly established dence commit intoxication, his intent to negated and therefore murder. degree first to a criminal intoxication is not a defense
Voluntary
However,
drug
or
intoxication
evidence of alcohol
charge.
the element
negate
in murder case to
introduced
be
may
to a lesser
reduce the crime
thereby
intent and
specific
v.
Commonwealth
30810;
murder.
18 Pa.C.S.
degree
§
Common
(1978);
581,
A.2d 474
Coleman, 482 Pa.
394
Graves,
118,
(1975).
v.
wealth
Whether
jury. Com
specific intent was an issue for the
requisite
Colbert,
monwealth
(1978).
476 Pa.
Appellant requisite also asserts that he lacked the informed, intelligent, knowing mental an capacity to make of his Miranda 11. rights According and voluntary waiver grant his ly, refusing he contends that the court erred given statement to the suppress incriminating motion to an hours after the crime. police Cortez, 529, Commonwealth
In
Pa.
(1985),
appeal
of defendant’s
of an
our standard of review
as follows:
ruling
described
suppression
adverse
was
ruling
suppression
of a
court we
When we review the
findings
sup-
are
the factual
must determine whеther
Arizona,
L.Ed.2d 694
86 S.Ct.
11. Miranda v.
384 U.S.
has
it is a defendant who
by the record. When
ported
only
must consider
the evidence
appealed, we
defense
much of the evidence for the
and so
prosecution
whole,
as a
as,
read in the context of the record
fairly
Assuming
support
that there is
uncontradicted.
remains
record,
are found and
are
the facts as
in the
we
bound
if
legal
court
suppression
only
reverse the
may
we
in error.
from those facts are
drawn
conclusions
Id.,
At the party he drunk at a earlier friends who stated was from two officer who trans- cross-examination the evening. On that he headquarters testified police ported appellant addition, In appellant’s on breath. smelled alcohol Cooke, to Dr. Gerald psychologist, a clinical defense called Dr. testi- mental state. Cooke appellant’s to the testify as he went over Miranda warnings with fied that when understanding of concrete he did have basic appellant, intellec- of his borderline because warnings rights, but skills, incapable he of social and lack range tual drinking and them, if he had been particularly implementing great stress. was under testimony this evidence with rebutted
The Commonwealth Miller, the officer who Wagner Officer Sergeant from to whom the two detectives transported appellant, All testified incriminating statement. issued appellant signs of intoxication. any not exhibit did appellant a clear demonstrated testified detectives *8 of his Miranda rights, responded and understanding comprehen- clear reflected a in a manner that questioning further testified They posed. questions sion of the that he drinking stated had but told them he been appellant drunk. was not testimony between any conflict
Resolution
resolve, and we are bound
for the factfinder
was
parties
support on
adequate
if there is
determination
by that
ulti-
court’s decision
suppression
Clearly the
record.
witness-
that the Commonwealth
finding
a
based on
mately
more credible. Such
credibility
es were
determination
where,
judge’s province
and
within
we cannot reverse
here,
Cortez,
his
are
findings
supported
the record.
424,
v.
374 A.2d
supra;
Gray,
Commonweаlth
473 Pa.
(1977).
As to
intellec
appellant’s contention that he was not
waiving
rights,
tually capable
consistently
we have
refused to adhere to a
se rule of
to waive
per
incapacity
rights
constitutional
based on mental deficiencies. Com
Hicks,
499,
(1976).
monwealth v.
Pa.
We look Hicks, effected. su- intelligent waiver was knowing of self- capable that he was Appellant demonstrated pra. During statement. the time he made the direction at person of a divulge the name appellant refused statement morning early in the planned to meet originаlly he had not occurred, that he was stating incident when the hours to do nothing had something him in he to involve going statement Moreover, sign refused to appellant with. no indication of There was read to him. after it was circumstances, these coercion, or threats. Under promises a know- made finding court’s suppression sup- rights is of his Miranda waiver intelligent ing not err thus, court did record by the ported *9 motion denying appellant’s suppress incriminating the statement. to the
Appellant during argument jury also contends that sentencing the made hearing at the several the passions to inflame the designed jury, comments causing to return a sentence of death based on fear, arbitrary sympathy. such as hatred and anger, factors appellant objects The first comment made to which is as follows: do know cannot read or many people you
How who write, yet day long law-abiding? are honest fact, Supreme
In of the United States ruled a Court fact cannot ago person number of that the that a years person voting, should that from read write not bar are people court reasoned thеre lots of who because the are, nevertheless, intelligent, can’t read and write who much citizens. So how law-abiding, well-informed in should be excused play person does whether part criminal conduct? from comment was irrelevant and argues this
Appellant agree. not upon the We do jury’s objectivity. intruded of Dr. testimony in to the response was made comment at testified Cooke, appellant’s expert in who psychology, hearing that school records indicate sentencing appellant’s grade first early than an higher he achieved no always in I.Q. placed level, had a low verbal was reading given testimony in This public school. remedial classes description appellant’s Dr. Cooke’s in the context of world, his coping with the problems personality, Thus, authority.12 disregard behavior antisocial re- legitimate, unimpassioned comment was a prosecutor’s support of a presented to the evidence sponse circumstance. mitigating among mitigating circum- were relevant since These matters
12. 9711(e) Sentencing Code is "the in Section stances enumerated criminality of his conduct appreciate the capacity of the defendant requirements was substantial- of law his conduct or to conform ly 9711(e)(3). impaired." 42 Pa.C.S. Next, appellant contends that prosecutor’s com *10 ment that the jury may seek vengeance on behalf of society to defend itself against heinous crimes was improper and upon drew the jurors’ emotion. The prosecutor argued: Let me ask you something, ladies gentlemen: Counsel says to you you are not here for vengeance. Well, I say to you you are.
He stands now, before you that cloak of innocence removed. He stands before you convicted deliberate, as a willful, premeditated killer, who acted with cruelty, hard- ness of heart and wickedness of disposition. You are here representing society. How much you shall turn the other cheek? you’re
When alone your bedroom some night, if someone comes into your bedroom gun with a or knife, what shall you do?
Shall you ask him whether he deprived had a childhood? Shall you ask him how far he went in school? you
Shall ask him if problems he has making friеnds? Do you turn the other cheek?
No. If you gun, have a you’re going to pull that gun him, out and you’re going to shoot because your primary objective there is to save yourself your family from harm your primary objective you right sit there is to save society any from further harm this individual.
Our society, now, for some years but now, particularly has been under attack. There are crimes that are so terrible that we’ve almost become jaded ...
There are people place all over the committing terrible crimes and there’s a million reasons attributed to them. Deprived childhood. Insanity. Political belief. When does it stop?
Society says, “O.K. It’s all to right give people certain amount of leeway to look at their actions and a certain compassion,” amount of human but don’t we reach a point certain where we say, “Our survival as a society is at stake. simply put stop We have to to this.
244 going explanations these accept anymore.
We’re not to defend ourselves”? going We’re 474, In 502 467 Travaglia, Commonwealth Pa. A.2d (1983), denied, cert. 467 U.S. 104 S.Ct. 82 (1984), prosecu L.Ed.2d 850 we reviewed of a propriety settle the on appeal tor’s score behаlf of society by imposing penalty. death argued: now, the Lesko
“Right score is John and Michael Tra- vaglia two, society nothing. stop? When will it When is Who is to make it That’s going stop? going stop? it your duty.”
Id., 302. at A.2d at viewed these Pa. We *11 the rationale of pointing utility comments as out a found these comments to have been no penalty. death We in arguing more than “oratorical flair” in favor permissible which, statute, the penalty, by of that terms of the imposing 9711(a)(3). permitted the is to do. Pa.C.S. prosecutor prosecutor’s jury In the case the statement to the instant in vengeance it is here for was made rebuttal to that The remain- urging they that were not13. defense counsel’s in society’s interest deter- der of the focused on statement in the of recognized Travaglia rence. We balance in being appropriate results certain rules at principles which at differently of a trial be struck a “guilt may the phase” Id., 502 to the Pa. hearing appropriate penalty. determine recognized that 501-502, A.2d at 302. While we have at guilt place during no the vengeance considerations trial, during the makes the factual jury which phase a a guilt, sentencing the first phase as determination bring in asks the degree jury murder trial essence determining appropriate to bear in society values having no of the rationale for part say sentence. To interest in retribution society’s death involves penalty jury, "as argument, closing defense counsel stated to 13. In his innocence, your guilt you’ve We’re not here rendered decision ... or revenge." vengeance or influenced our which by citizenry values held our ignore the to enact such a law. Assembly General for a prejudicial it or improper held that is not We have effect” of concerning the “deterrent to remark prosecutor supra. Zettlemoyer, Commonwealth v. penalty. the death supra, Travaglia, plea prosecutor’s permitted in we And in- comments prosecutor’s the score. to even arbitrary to act an not a call to the case were stant some to consider requests were capricious They manner. statute and were penalty of the death objectives a prosecu- flair” permitted of “oratorical within sentencing heаring. tor at a following series of also contends
Appellant inflamed impermissibly comments jurors: passions night last from reading I gentlemen,
Ladies years three thousand published nearly that was document and there’s a The Iliad epic was the Greek ago. It describing He was generals. one of the discussion about Iliad, in The described wars or battles many one of the Achilles, described and he was name was General follows: lion, gone he has Like a destroyed pity. has
“He them.” men to devour the flocks of among pity, without without of someone portrait That is a on the of this defendant portrait was a feeling, and that is three 10th, portrait 1981. That of October morning *12 intelligent, as You to say yourselves, old. years thousand expla- there must be an people, sensitive compassionate, sadistic, kind of for this There must be an excuse nation. conduct. vicious hear you may gentlemen, and
Well, you, I to ladies say conduct, may hear you of for this kind offered excuses mini- should be this conduct you why to given reasons acknowledge must mized, you I to say you but has been record- world, history ever since in this presencе different evil, They’re evil. do who are ed, who people of Why? people. from other missing.
I is don’t care Something They don’t know. of immediate but the their anything about satisfaction your say, don’t into and appetites. They come house “Gee, do have wife? you
“Do have husband? you “Do have children? you “Are ill?” you your that. take
They They you don’t do stab and People don’t are money. They They unfeeling. care. They’re always like have been with us and will be. is They from and me. are evil and evil with you different us, still. The concept through history.
You can trace the Bible The of personification the Prince of speaks of Darkness. modern, cultures, and primitive evil. All of our ancient civilized, The symbols presence for the of evil. have in our and our literature. Shake- symbol history abounds personification of speare’s lago. play is Othello is of evil. Six Adolph personification evil. Hitler IQ? million were killed. Did he a low people have eight people Washington, There were D.C. about all the into a house and killed years ago. Someone went all There who people adults and drownеd the babies. are money---- can hire to kill someone for you are don’t among people us. There who There evil suggest I ladies anything you, care for anybody evidence that gentlemen, you based on the heard, person. is such a that this defendant animal. you
I do the defendant is an suggest not kill They kill for insulting. That Animals food. would be human certain protect young. only types their It is money beings pleasures, kill to other such satisfy who animals which or sex. That is of barbarism states, managed. have never in their apparently, dumb arguments this to Again, responsive find be we permissible parameters and within the defense counsel penalty. death support imposition argument *13 The central theme of the evidence and argument made on of behalf at the sentencing hearing was that , appellant had mental deficiencie which diminished his ca- pacity to restrain his behavior. The responded by arguing that appellant’s lack of self-restraint was not deficiencies, due to his rather, mental but his actions were a manifestation of disposition. an evil Out of the ten aggra- vating circumstances in 42 listed 9711(d), Pa.C.S. prosеcution argued for, found, and the jury following three:
(6) The defendant committed a killing while in perpe-
tration of a felony (7) In the commission of the offense the defendant know-
ingly grave created a risk of death to another person in addition to the victim of the offense (8) The offense was committed means of torture. These circumstances are “aggravating” because they are greater indicative of a degree of moral turpitude. The prosecutor was attempting convince the moral turpitude was the cause of appellant’s transgressions and not an alleged incapacity restrain his behavior. We find the theme of the prosecutor’s argument to a legitimate be response to defense counsel’s assertion appellant’s im- paired capacity restrain his behavior as a mitigating circumstance.
Appellant complains of injection notorious, of certain figures evil into prosecutor’s argument. However, the prosecutor did not attempt equate appellant’s deeds with theirs. Rather he referred to them as examples of those whose horrible deeds were manifestаtions of evil and not the result of some exculpatory deficiency. injection of such names as the Prince of Darkness Adolph Hitler may tend to passions arouse the of the jurors, but consider- ing used, context in which the names were we do not find that those references were so inflammatory to have caused the jury’s sentencing verdict to the product be passion, prejudice or other arbitrary factor. *14 calling that
Appellant prosecutor’s also contends victim, wife, his his to family attention to the Jordan and improper appeal sympathy Ms. Minor was an for from The jury. prosecutor stated: here, in a eight away about thousand miles from ... Jordan, called there’s a that wonders what country family they son to the United happened when sent their States woman, America to further education. There’s a Murtaza, shattered, life horribly named Mahin whose was a months who was widow after six and who witnessed There’s a named terrifying, terrifying thing. young lady, who, sure, Minor, up nights I’m must some Juliana wake into night leaped think of that when this defendant him, knife. shall have you pity you her door with a Shall him, draw line and to you say him or shall sympathy stеpped all gone too far. You have over “You acts, have, your You decency. by of human bounds that do not depraved you me that are so you shown my deserve consideration”? aren’t here people your sympathy
The
who deserve
I
to draw
again.
you
them
never be here
ask
one of
will
stepped
line.
it.
that
He
over
from
prejudice might
stated that
arise
Travaglia,
In
we
if
reference has the effect
reference to the victim such
it
to
that
juror’s
emotions
such
arousing
sentence based
impossible
jury
impose
for the
becomes
according to the
of the relevant evidence
on consideration
Pa. at
penalty
Supra,
of the death
statute.
standards
memory
In
we noted that the
Travaglia,
Finally,
sentence has been
imposed we conduct a proportionality review to determine
*15
whether
the sentence is excessive or
to the
disproportionate
cases,
in similar
penalty imposed
considering both the cir
of the crime and the
cumstances
character and record of the
Commonwealth v.
9711(h)(3)(iii);
defendant.
42 Pa.C.S.
§
denied,
Frey, 504
cert.
428,
(1984),
Pa.
A.2d 700
475
469
963,
360,
(1984).
U.S.
105 S.Ct.
After the evidence at trial and following hearing, jury found the three sentencing 9711(d) listed in of aggravating circumstances Section Sentencing present: Code Penalty Study," study "Pennsylvania and it
14. This entitled Death by Frey, Pa. this Court in Commonwealth v. 504 has been ordered denied, (1984), U.S. S.Ct. 83 A.2d 700 cert. 469 105 475 study ongoing is an one and we have This L.Ed.2d 296 imposed every Judge continuing obligation on the President Pennsyl county supply updated data to the Administrative Office conviction. on each first murder vania Courts 250
(6) The in the killing defendant committed while felony. of a perpetration (7) In the commission of the offense the defendant
. grave per- created a risk of death to another knowingly in addition to the victim of the offense. son (8) offense committed means of torture. by The 9711(d)(6), (7), (8). Despite presented evidence Pa.C.S. § support mitigat- made the defense to argument of the defend- impairment circumstance of substantial ing of his conduct or appreciate criminality capacity ant’s law, requirements to the to conform his conduct 9711(e)(3), mitigating did not find this jury Pa.C.S. § did, however, find the present. jury circumstance concerning the mitigation “other evidence of presence of the defendant and the circumstanc- and record character 9711(e)(8). The found jury of the case.” Pa.C.S. es outweighed mitigat- circumstances aggravating that the instruc- and, according to the court’s circumstances ing tions,15 to death. sentenced provided by the information carefully reviewed
We overwhelming majority in the found that AOPC and found that the defendant has cases which felony, of a perpetration in the killing committed in addition person of death to another grave risk created aggravating has found that those victim, the jury to the *16 cases have in most of those outweigh what circumstances circumstances, those including mitigating numerous been In the defendant. and record of the character concerning killing a was has found jury in the few cases which 9711(c)(1) provides: 15. 42 Pa.C.S. § (c) jury.— Instructions verdict, sentencing the (1) jury consider the retires to Before the following matters: jury the the on court shall instruct unanimously jury (iv) if the of death be a sentence the verdict must (d) specified in subsection aggravating circumstance one finds at least unanimously jury finds one mitigating or if no circumstance and mitigating outweigh any which aggravating circumstances or more imprisonment life a sentence of must be The verdict circumstances. in all other cases. committed while in the was perpetration and felony torture, means of by jury consistently committed has In aggra- sentenced the defendant to death. this case the of a vating killing during perpetration circumstance of accompanied knowingly both the felony by defendant creating committing risk of death to grave another and In by light the murder means of torture. of this informa- independent tion and our own evaluation of the entire case, record in this conclude that the sentence of death we in imposed the instant case was neither exces- by nor in similar disproportionate penalties imposed sive Therefore, cases. we sustain the conviction of murder the first affirm the sentence of death.16 degree and
LARSEN, J., Opinion Announcing this joins and files a Judgment separate concurring of the Court PAPADAKOS, J., opinion joins. which PAPADAKOS, J., joins Opinion Announcing this Judgment concurring and files a separate the Court opinion.
HUTCHINSON, J., concurring opinion. files a FLAHERTY, J., concurring dissenting files a C.J., J., NIX, ZAPPALA, Opinion join. in which LARSEN, Justice, concurring.
I and affirmance of join opinion Raymond the majority’s sentence, including judgments Whitney’s convictions sentence of death on the conviction for his well deserved degree. of the first murder the terror inadequate fully convey wholly
Words are appellant’s felt victims on October by that must have been murderer’s 10, 1981, depravity describe the of this or to opinion, prosecu- in his deeds. In my mind as reflected imposed by jury, upheld the sentence of death 16. Because we have transmit hereby prothonotary of the Eastern District to we direct the Governor, possible, сomplete record of the full and as soon as to the this Court as sentence, trial, by hearing, imposition sentencing and review l(i). required 42 Pa.C.S. 971 *17 convey feelings jury tor’s dramatic those to the attempts in favor of death in this amount- arguing penalty case legitimate argument ed to fair and under commentary Sentencing interpreting Code and our cases Code. Whitney Raymond deliberately, wilfully premed- with on October subjected itated malice victims beyond were a reason- proven unfathomable horrors which trial, a fair he now this Court able doubt at would have prosecutor accu- vacate his sentence of death because to the the stark rately, dramatically, jury conveyed albeit comments prosecutor’s closing terror of his actions. The states, could indeed but how “chilling”, were led the they jury be otherwise? The actual events which more ultimate were far society’s punishment administer this could have said. “chilling” anything than counsel Sentencing specifically provides Our Code of argument against for or the sentence may “present 9711(a)(3). makes majority 42 Pa.C.S.A. As death.” ‘sentenc and, Sentencing suggests, as the Code “the clear than the phase’ purpose of the has a different ing trial ... may applicable. be ‘guilt phase’ principles and different accompanies which Likewise, innocence presumption guilt determine his throughout proceedings the accused sentencing to the determination. application has no direct which principles the balance again We observe that ... ‘guilt phase’ at the being appropriate certain results in rules to deter trial, hearing at may differently be struck Travaglia, Commonwealth v. penalty.” mine appropriate 499, 501-02, Accordingly, 502 Pa. and impassioned oratorical license permitted more we sentencing stage proceedings argument during the usually defending counsel than prosecuting for both See, Com e.g., trial.1 guilt phase at the permitted closing argument interesting to that defense counsel’s 1. It is observe For presented not on the record. contained references to matters future, science argued perhaps medical example, counsel social “defects” and appellant’s mental and will “cures" find life possibility to return sentence lead the this should imprisonment.
253
monwealth v. Travaglia, supra; Commonwealth v. Zettle
denied,
moyer,
cert.
16,
(1982),
500 Pa.
454 A.2d
461
denied,
reh.
970,
2444,
(1983)
U.S.
103 S.Ct.
In case, the instant I prosecutor’s believe the dramatic comments, closing inappropriate while had ut- they been trial, guilt tered at the phase legitimate arguments were fact, at sentencing hearing make his comments —in Society is under attack by fit the crime “like a glove”. Evil like persons Raymond Whitney. personified in such in persons Raymond Whitney’s deeds. Raymond Whit- ney has acted in a manner beneath the dignity animals kill only necessary regarding who when for survival. And prosecutor’s analogies to various infamous real and characters, fictional I do not the prosecutor believe attempting place Raymond Whitney alongside these evil in figures history or notoriety. prosecutor’s references conveyed the extreme of maliciousness exhibited 10,1981, Raymond on October which Whitney maliciousness does If society. constitute an attack on one acts of commits evil, then person will not bе heard to when complain very evil is described —the nature of the re- matter quires the use of evil terms.
Our standard of review in cases death involving the Sentencing Code, is set penalty by the Pa.C.S.A. 9711(h). In “authority addition to our to correct errors at § trial,” 9711(h)(2), required we are to review the sentenc- § ing procedures and directed to “affirm the sentence of unless” death we determine that:
(i) product the sentence of death was the of passion, factor; or prejudice any arbitrary other (ii) the fails to of an support finding evidence (d); or aggravating specified circumstance subsection (iii) disproportion- the sentence of death is excessive or cases, considering in similar penalty imposed ate to the of the crime and the character and the circumstances both the defendant. record of 9711(h)(3).
42 Pa.C.S.A. requires to the instant case these standards Applying re- Raymond Whitney the sentence of death. affirm we afforded him all and fair trial that available ceived a full convicted, rights, and was inter and substantive procedural That led to alia, degree. of the first conviсtion of murder death, a sentence that is most a sentence of imposition imposed to that disproportionate not certainly excessive Moreover, overwhelming there was evi- cases. similar *19 Whitney certainty Raymond prove to a virtual dence perpetrating a heinous killed Mr. Taha while intentionally his that he tortured Mr. Taha and (attempted rape), felony Mr. Taha’s callously placed that he unmercifully, and wife death, aggravating three proving risk of thus grave at wife 9711(d)(6, 42 doubt. Pa.C.S.A. beyond any circumstances 7, respectively). 8 and of these three overwhelming evidence light
In circumstances, is clear it aggravating terrifying and brutal not, dissenters as the sentence of death was the remarks,” at prosecutor’s the by “induced suggest, and the Sentenc- was, rather, the evidence required by but argument closing dramatic The prosecutor’s Code. ing emo- impassioned and although penalty, of the death favor to this tailored tional, commentary fair was nevertheless crimes, the atrocious acts and murderer’s particular passion, preju- product not “the of death was sentence has Whitney Mr. arbitrary factor.” other any dice recipient society’s deserving a himself to be proven of death and his sentence punishment measure of fullest of review established our standard affirmed under must be Sentencing the Code. reviewed a recently has Court Supreme States The United In case. similar very imposed of death sentence — 2464, 91 —, 106 S.Ct. U.S. Wainwright, Darden v. sentence of the affirmed (1986), that Court L.Ed.2d 144 the murdered had who petitioner imposed upon death 255 robbing it, he sexually of a store while was proprietor who neighbor man’s wife and shot dying assaulted help During the store in the face. attempting to owner was stage guilt-innocence proceed at the his summation com inflammatory made numerous ings, prosecutor ments, petitioner a “vicious animal” who including that was his cell he has a leash on him be out of unless “shouldn’t leash,” guard at the other end of that prison and a had off” and wished someone “blown head face, away by shotgun,” no “sitting here with blown was petitioner to sentence to death imploring keeping can be of” only way anybody petitioner “the sure — at - - -, getting public.” “out оn the U.S. from 5-12, at---, 106 5-12. notes The United *20 reasoning court to consider these comments every the of petitioner did of a fair Id. they deprive not trial.” the upon complete based review of This conclusion was in the of the evidence prosecutor’s comments context the the jury, counsels’ remarks to presented, defense jury, to the the determination court’s instructions overwhelming based the evi jury’s upon the verdict was law, inflammatory the upon prosecutor’s and the not dence case, prosecutor’s in the the Id. too instant remarks. So hearing deny the did not sentencing remarks at impassioned law, do require nor Raymond process they due of Whitney of under the overturn the sentence death Sentenc that we ing Code.
PAPADAKOS, J., concurring opinion. in this joins
256
PAPADAKOS, Justice, concurring
Mr.
Opinion
I
Mr. Justice McDermott’s
Justice
join
affirming
Appellant’s
the
convictions and sen-
Larsen
on
I write
imposed
Raymond Whitney.
tence of death
I
by
suggestion
am distressed
the
separately because
prosecutor’s closing
may
dissent that the
statement
passion, prejudice
a sentence of death
on
compelled
based
factor. Fоr this
to reverse a
any
arbitrary
or
other
Court
death,
it must determine that “the sentence
sentence
or
other
product
passion, prejudice
any
death was
9711(h)(3)(i).
require-
42
This
arbitrary factor.”
Pa.C.S. §§
408
92
light
Georgia,
ment exists in
of Furman v.
U.S.
(1972),
on the
imposed
The District
“the
com
error unless
unavoidable effect of such
versible
in their
prejudice
forming
the jury,
ments would be
hostility
toward the defendant so that
fixed bias
minds
the evidence and
a true ver
weigh
could not
render
they
Pursell,
v.
Commonwealth
supra;
dict.” Commonwealth
Common
(1984);
Pa.
Viewed sentence, of a true rendering to interfere with its jury capri totally arbitrary its issuance of a thereby forcing Furman. death, forbidden imposition by cious Attor- remarks of the District closing of the intensity overshadowing or overbearing, so was not ney jury impassion inflame or hypnotize, аs to convincingly argued from render- jury and disable the against Appellant the jury dough glob This was not a jury a true verdict. ing display of the the oratorical kneaded into submission verdict of death This returned a attorney. prosecuting being innocent human had killed an Appellant because torture, while commit- Appellant, and because by means Appel- being, human and because had killed a ting felony, risk of death to another grave created a knowingly lant had the offense. committing while oratory, dramatic so sensitive to the dissenters
Why are clear evidence weight of the heavy to the insensitive yet they do jury? Why of the the conclusion supports which comparisons expressive words of weight to the ascribe more dagger twenty-eight of the plunging do to the they than on, than victim, looked while a horrified wife into his times wife, do they of the than ravaging attempted do to the they the wife? How stabbing cutting Appellant’s to the flair any oratorical believe can the Dissenters the jury in the minds of intensify possibly could by Appellant? committed the deeds horrors of *22 258 outrageousness of conduct towards Appellant’s the
Given victims, argue it for the only prosecutor natural his sentence, and forcefully possible as favor of a death arguments did so his were within expressively, he while sentencing phase. the advocacy during bounds of acceptable Travaglia, Commonwealth Pa. 502 the District could not (1983). argument Attorney of returning totally arbitrary into death jury deceive by was influenced Clearly, jury’s this decision sentence. CF, Darden v. of counsel. by argument facts and not — Wainwright, —, 106 S.Ct. 91 L.Ed.2d U.S. HUTCHINSON, Justice, concurring. conviction and appellant’s
I the Court’s affirmance of join of death imposed by jury. the sentence made However, by I that the comments also believe intemperate closing in his statement were both effort appear inappropriate an improper. They be by that human acts are not determined jury out to the point factors, capacity to do evil but that impersonal we. chooses to that an individual who of our free will and own according to the punished should do evil be evil. case, however, these I do not believe the facts of this
On overturning penalty. the death Our our justify remarks a death sentence act directs us to affirm penalty dеath product passion, unless it is the imposed by factor. Pa.C.S. arbitrary or some other prejudice facts, on the duty A under a to act based 9711(h). jury is presume should not of counsel. We arguments not the this they will abandon unsophisticated are so juries argu- prosecutor’s to an overzealous exposed duty when case, fully are facts in this which The heinous ment. adequate are more than opinion, majority recited in the background Against penalty. the death warrant were harm- facts, comments prosecutor’s I believe the these are justified arose from and The verdicts less error. facts, generated by prose- not any passion prejudice unnecessary comments. cutor’s ill-advised advised, well strong Prosecutors with cases would be however, the facts Juries can speak to let themselves. appreciate trusted to them. be Justice,
FLAHERTY, concurring dissenting. majority’s opinion affirming I join portion degree, first conviction for murder but appellant’s *23 to affirmance the respect majority’s with the dissent of death. sentence made
During
sentencing
hearing,
prosecution
the
the
to
jury
imрroper
numerous
the
constituted
arguments
to
the
It is
passions
sympathies
jurors.
the
and
appeals
that,
in
first
sentencing hearing
degree
at the
established
Commonwealth,
case,
just
the
coun
murder
“the
defense
sel,
position
in
to
arguing
must
reasonable latitude
Zettlemoyer,
55,
Commonwealth v.
Pa.
500
at
jury.”
the
v. Travaglia,
also Commonwealth
A.2d
See
454
at 958.
288,
474, 498-503,
(1983),
Pa.
A.2d
300-302
cert.
502
467
denied,
1256,
3547,
(1984).
104
260 primary guideline assessing
The
a claim of errоr of this
is to determine
of"
nature
whether
unavoidable effect
comments
form
prejudice
jury,
the contested
minds fixed
ing
hostility
their
bias
towards the
objective weighing
accused so as to hinder an
impede
rendering
of a true verdict.
evidence
McNeal,
394,
v.
456 Pa.
verdict flow presented represent of the evidence and not a weaknesses either response inflammatory pleas leniency to for Starks, 479 Pa. vengeance. Commonwealth v. (1978). A.2d 829 226-227, Pursell, 508 Pa.
See also Commonwealth 190-191 495 A.2d case, to the instant it is clear
Applying guidelines these by latitude were exceeded that the bounds reasonable following excerpts As the prosecutor. arguments demonstrate, violated arguments from those applicable all of the standards. gentlemen: you something, me ask ladies
Let [De- you to are not here says you counsel] for fense Well, I to are. say you you vengeance. deliberate, a will- He before convicted as you stands
... ful, killer, hardness cruelty, who acted with premeditated are here disposition. You of heart and wickedness turn the you How much shall society. representing cheek? other night, if some your
When alone bedroom you’re knife, or a gun with a comes into bedroom your someone do? you what shall childhood? deprived he had a ask him whether you
Shall him how far he went school? Shall ask you making friends? problems him if he has Shall ask you the other cheek? you Do turn you’re going pull gun to gun, No. If have a you him, primary because going yоur to shoot you’re out your family from yourself is save objective there to right objective you sit there your primary harm and further harm this individual. any to save from society now, now, particularly but society, years Our some are crimes that are so under attack. There has been jaded---- we’ve almost become terrible that committing place over the terrible people There are all to them. there’s million reasons attributed crimes and a Political belief. When Deprived Insanity. childhood. it stop? does right give people It’s a all to
Society says, “O.K. to at actions and a leeway look their certain amount but don’t we compassion,” of human certain amount a say, where we “Our survival as point reach certain put stop this. simply stake. We society is at anymore. accept explanations these going not We’re ourselves?” going We’re defend reading night I from gentlemen, last Ladies and nearly years three thousand published that was document *25 there’s a epic The Iliad and the Greek ago. It was describing generals. He was about one discussion Iliad, his in The battles desсribed many of wars or one name Achilles, was General and he was described as follows:
“He has destroyed lion, pity. Like a gone he has among the flocks of men to devour them.” portrait
That is a of someone without pity, without feeling, and that portrait was a this on the defendant morning portrait That is three thousand [of murder]. old. years say You to yourselves, as intelligent, compas- sionate, sensitive people, there must be an explanation. There must be an excuse for sadistic, this kind of vicious conduct.
... I say you that you must acknowledge the [B]ut world, presence this ever since history has been record- ed, people evil, who do who are evil.
You can trace that concept through history. The Bible speaks the Prince Darkness. The personification of cultures, evil. All of modern, our ancient and primitive civilized, symbols for presence of evil. The symbol abounds in our history our literature. Shake- speare’s lago. The play personification Othello is the evil. Hitler is the personification of evil. Six Adolf killed____ million people were
There people were in Washingtоn, D.C. about eight years ago. Someone went into a house and killed all the adults and drowned all the babies. There are peo- ple you who can hire to kill someone money. among
There is evil people us. There are who don’t care for anybody anything and I suggest to ladies you, gentlemen, based on the evidence that you have heard, that this is such a person. defendant
I suggest you do not that the defendant is an animal. That would be insulting. Animals kill for food. They kill protect their young. It is certain only types of human kill beings who other satisfy pleasures, such as money *26 That of barbarism which animals or sex. states, managed. never their dumb apparently, your He not His acts were intentional. does deserve ... gentlemen. in any way, ladies and sympathy aren’t here your The who deserve people sympathy them will again. and one never be here of added). remarks, By prosecutor the at- (Emphasis these hostility incite the a fixed bias and tempted to with accused, advanced contentions were not towards the legitimate to to the evidence and the inferences be confined therefrоm, endeavored to cause the verdict be a drawn judgment, emotion rather than reflective and product vengeance designed for and plea sympathy invoked a respective flow from other than the make the verdict strengths and weaknesses of the evidence. requests
Indeed, prosecutor’s express in addition to the comments contribu- sympathy, for and other vengeance tone, stating such those ting inflammatory to an as respond jurors need to society is under attack attack, excerpts attempts contain foregoing to that some of the most equate appellant with jurors incite the history of persons heinous in the literature and vicious and Achilles, military leader vengeful and merciless mankind: legendary city near of countryside ravaged who Darkness, known The Prince of otherwise Troy; devil; individual with inherently an evil and malicious lago, Othello; features, Shakespeare’s redeeming portrayed no demented, racist, Hitler, infamous, practition- Adolf to a even likened genocide. prosecutor er babies, killer. None and to a hired mass murderer relаtionship to the evi- analogies significant these bears case, and, each was clearly, in the dence instant presented Indeed, it passions jurors. intended to inflame the that would be comparisons difficult to conceive would be em- than those which inflammatory more circumstances, must conclude that one these ployed. Under prosecu- induced may have been the verdict of death remarks, and, tor’s thus, the sentence of death should be vacated and the case should be remanded to the Court of Common Pleas imposition of a sentence of imprison- life ment.
NIX, C.J., and ZAPPALA, J., joins in this concurring and dissenting opinion. *27 CUGINI,
Joseph Appellant, v. Pennsylvania, COMMONWEALTH of UNEMPLOYMENT REVIEW, COMPENSATION Appellee. BOARD OF Supreme Court of Pennsylvania.
Argued March 1986. July Decided 1986. notes S.Ct. affirmed Supreme petitioner’s Court both convictions States murder, intent to kill as well robbery assault with death, holding petitioner’s trial as his sentence of that while neither unfair.” perfect fundamentally “not ... was it — —, at 106 at —. held that the U.S. S.Ct. That Court is whether comments question prosecutor’s “relevant to make result ‘so infected trial with unfairness as of due v. De ing process.’ Donnelly conviction a denial 431 L.Ed.2d Christoforo, U.S. S.Ct. review, we with agree ... Under this standard of