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Donetta HILL

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robberies - Prostitute - Crack cocaine addict
Number of victims: 2
Date of murder: June 28, 1990 / March 4, 1991
Date of birth: September 23, 1966
Victims profile: Nghia Guy Lu, 72 / Nairobe Dupont, 21
Method of murder: Beating with a clawhammer
Location: Philadelphia, Pennsylvania, USA
Status: Sentenced to death on April 9, 1992
 
 
 
 
 
 

Donetta Hill, Pennsylvania

Doneta Hill, Black, born 1966, sentenced to death on Apr 9, 1992 for the murders of an Asian male (age 72) in Philadelphia on June 28, 1990 and of a black male (age 21) in Philadelphia on Mar 4, 1991.

 
 

1st Female Execution In Pa. In 50 Years Set

By Edward Moran - Philly.com

January 13, 1996

A South Philadelphia prostitute convicted of killing two customers has edged closer to becoming the first woman in Pennsylvania to be executed in 50 years.

Gov. Ridge signed Donetta Hill's death warrant on Thursday, and her death by lethal injection has been scheduled for the week of Feb. 4, the governor's office announced yesterday.

Hill, however, has not completed her legal appeals and is unlikely to be executed for at least two years.

According to Robert B. Dunham, executive director of the Pennsylvania Post Conviction Defenders Association, Hill, 29, is still in the beginning of a three-stage post-conviction review and will probably be granted a stay of execution.

"There have been 13 previous defendants who have been subjects of death warrants who have not yet completed the review process," Dunham said. "To date all have been granted a stay of execution."

Hill received two death sentences in 1992 after being convicted of killing 72-year-old Nghia Quy Lu on June 28, 1990, by hitting him repeatedly over the head with the claw end of a hammer.

She was also convicted of hammering to death Nairobi Dupont, a 21-year-old mentally retarded man. Hill killed both men after having sex with them. She then robbed their homes.

As she was being led from the courtroom, she spat at the jury that convicted her. Hill is imprisoned at the Muncy State Correctional Institution.

Dunham said Hill was expected to present her review petition to the U.S. Supreme Court Feb. 26. After that, she is entitled to appeals in both state and federal courts. She does not yet have an attorney representing her in those appeals.

Hill's death sentences were affirmed by the state Supreme Court on Sept. 29. Ridge signed Hill's warrant in accordance with Special Session Act 4 of 1995, which requires warrants in such cases to be signed within 90 days of receipt by the governor.

Hill's is the 33rd warrant signed by Ridge since he took office last January. So far, only two of the 33 executions have been carried out. Two warrants are pending, and the 29 others were stayed by the courts.

Hill is one of four women on death row in Pennsylvania. The last woman who was put to death was Corrine Sykes of Luzerne County, executed on Oct. 14, 1946.

The three other women currently facing execution in Pennsylvania are Carolyn King, 31, of Lebanon County; Kelley O'Donnell, 29, of Philadelphia, and Dolores Rivers, 42, of Philadelphia.

 
 

Sentenced To Death For 2 Hammer Slayings, Prostitute Spits At Jury

By Raoul V. Mowatt - Philly.com

Inquirer staff writer Linda Loyd contributed to this article

April 09, 1992

A South Philadelphia prostitute, sentenced to death yesterday for fatally beating two customers with a clawhammer after they tried to shortchange her, spat at the jury as she was being led from the courtroom.

Donetta Hill, 25, of the 700 block of Daly Street, became only the second woman in Pennsylvania to be sentenced to die since the death penalty was reinstated in the state in 1978, prosecutors said.

As the mother of two young children was being led out of the courtroom by a sheriff's deputy, she stopped and turned toward the jury box.

"She spat at the forelady and the woman behind her," Assistant District Attorney Shelly Robins-New said. The judge asked police and court officers to escort the jurors out of the building, she said.

Defense attorney Vincent La Russo was not available for comment.

On Monday, the jury convicted Hill of two counts of first-degree murder in the deaths of Nghia Guy Lu, 72, and Nairobe Dupont, 21.

"She was larger than her victims in both weight and size," Robins-New said. "The men she picked were frail and thin."

Common Pleas Court Judge Marvin R. Halbert deferred sentencing on two counts each of robbery and possession of an instrument of crime.

On June 28, 1990, family members found Lu's body, with his pants down to his knees, in the basement of his home on the 1900 block of South Eighth Street. He had been struck in the head with a hammer at least 12 times, according to testimony.

In a statement to police, Hill said the two had had intercourse twice that day, and she killed him because he offered her only $5 for sex instead of the $20 they had agreed on.

"I reached in his pockets but he didn't have no money in there. I pulled his pants down to see if he had any money in his underwear," she said in the statement. He next reached for a toolbox, and thinking that he was going to hit her, Hill struck first.

Testifying in her own defense, Hill said detectives had fabricated the statement and that she signed it under duress.

Hill took two gold rings, a watch and glasses from Lu's house, Robins-New said. She received $25 from selling one of the rings, according to the prosecutor.

In the second murder, Hill was angry when Dupont tried to pay her two caps of crack instead of $25 for allowing him to perform oral sex on her, according to the statement.

Among other things, she took two VCRs from the house and sold them for 10 caps, according to the statement.

When Dupont's father returned to his house on the 500 block of Emily Street after a vacation, he found his son lying on the kitchen floor naked, except for his socks. He had a burn on his chest that matched a teapot in the house, Robins-New added.

He also found a small red purse with identification cards belonging to Donetta Hill.

 
 

Supreme Court of Pernnsylvania

September 29, 1995

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DONETTA HILL, APPELLANT

Appeal from the Judgment of Sentence entered on March 11, 1993, by the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 41-45, and 1839-1841, May Term, 1991.

Before Nix, C.j., Flaherty, Zappala, Cappy, Castille And Montemuro, JJ. Mr. Justice Montemuro is sitting by designation.

NIX, C.J.

DECIDED: September 29, 1995

On April 6, 1992, Appellant, Donetta Hill, was convicted by a jury of two counts of murder of the first degree, robbery, and two counts of possession of an instrument of crime. At the Conclusion of the penalty phase of Hill's trial, the jury returned a sentence of death for each of the two first degree murder convictions. Based upon the imposition of a sentence of death, we have jurisdiction to review this direct appeal of Hill's conviction and sentence pursuant to 42 Pa.C.S. 9711(h)(1).

In all death penalty cases, we begin by performing our self-imposed obligation to independently review the evidence underlying each first degree murder conviction. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n.3, 454 A.2d 937, 942 n.3 (1982), cert. denied, 461 U.S. 970, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983). The standard upon which we review the sufficiency of the evidence is whether the evidence, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, supports the jury's finding of guilt beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 539-40, 510 A.2d 1217, 1218 (1986).

On June 28, 1990, seventy-two-year-old Nghia Quy Lu propositioned Donetta Hill to have sex with him for money. The two went to the basement of Mr. Lu's home at 1931 South 8th Street in Philadelphia and had sex. Lu was five feet, six inches tall, and weighed one hundred twenty-six pounds. Hill stood five feet, five inches, and weighed one hundred sixty pounds. After engaging in sex, Hill grabbed a hammer and struck Lu in the back of the head several times. Lu collapsed and died from his injuries. Hill then ransacked the house and took several items, including a Longines watch, two gold rings with Chinese inscriptions, and a pair of gold-rimmed eye glasses.

Later that day, Lu's son and daughter-in-law returned home and found Lu's body lying in a pool of blood on the basement floor with his pants pulled down to his knees. There was a large burn wound on Lu's chest, and a blood stained hammer was found lying near the body.

Hill brought the items stolen from Lu to the home of her friend Melinda Williford. She asked Williford to sell the watch and gold rings at a neighborhood jewelry store. Williford sold one of the gold rings to the jeweler for twenty-five dollars and split the proceeds with Hill.

Approximately nine months later, twenty-one-year-old Nairobi Dupont offered money to Hill to have sex with him in his father's house. Dupont, who was "mentally slow," stood four feet, eleven inches tall and weighed eighty-five pounds. The Dupont home was located at 504 Emily Street in Philadelphia, less than four blocks from the site of the Lu murder. Hill entered the home and had sex with Nairobi Dupont. Afterwards, she grabbed a hammer and struck Dupont repeatedly in the back of the head. As Dupont lay dead or dying on the floor. Hill ransacked the house and took several items, including two video cassette recorders, a number of video cassettes, and a television remote control. She then fled the scene.

On March 9, 1991, Nairobi Dupont's father returned from a two week vacation and found his house in a state of disarray. He eventually discovered the body of his son on the kitchen floor. The police arrived shortly thereafter and recovered a blood-stained hammer near the victim's body. They also recovered from the crime scene a red pocketbook which contained an identification card belonging to Donetta Hill.

Hill took the two videocassette recorders stolen from the Dupont residence to the home of an acquaintance, Dwayne Culler. Culler gave her twenty dollars and four vials of crack cocaine in exchange for the equipment. Hill returned to Culler's home sometime thereafter with a bag of video cassettes stolen from the Dupont home for which she received two additional vials of crack cocaine.

After Hill learned that police wanted to question her, she went to the office of her probation officer. Accompanied by her probation officer and another member of his office, Hill went to the homicide division of the Philadelphia police department. Once there, Hill was taken to an interview room and fully advised of her Miranda rights. She ultimately confessed to the murder of Nairobi Dupont and signed a written statement to that effect. Shortly thereafter, Hill was again advised of her Miranda rights and questioned about the murder of Nghia Quy Lu. Hill told the detectives questioning her that she was present when Lu was murdered, but that her friend, Bruce Baldwin, had committed the killing.

At the Conclusion of the interview, the detectives faxed Hill's statement to the district attorney's office where the decision was made to hold Hill and charge her with the murder of Nairobi Dupont. Four days later, while in custody, Hill returned to the homicide division to speak with detectives regarding the in murder. After once again being informed of her Miranda rights, Hill admitted that she had killed Lu and later signed a written statement attesting to that fact.

Based upon the foregoing facts, it is evident that sufficient evidence was presented to support the first degree murder convictions. We therefore proceed to address Hill's allegations of error relating to her trial and defense counsel's ineffectiveness.

Hill first claims that the prosecutor committed misconduct which prejudiced her and thereby deprived her of a fair trial. In support of this contention, Hill cites six separate instances where the prosecutor cross-examined her and presented rebuttal evidence concerning: the fact that she was on welfare; her cocaine use during pregnancy; her prior sentences of imprisonment; her probation violation; the fact that "wanted cards" had been issued for her; and her use of profanity during questioning by police. Our review of these allegations is guided by the fact that a defendant is not entitled to relief for a claim of prosecutorial misconduct unless the "unavoidable effect" of the prosecutor's comments or actions "is to 'prejudice' the jury so that a true verdict cannot be rendered because the existence of bias and hostility makes it impossible to weigh the evidence in a neutral manner." Commonwealth v. Baker, 531 Pa. 541, 558, 614 A.2d 663, 671 (1992) (quoting Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986)).

First, the revelation that Hill was on welfare was made by Hill herself. On direct examination by her attorney, Hill indicated that the only form of photographic identification that she possessed was a card issued by the Department of Public Assistance. (N.T. 3/31/92, 66-67). This information was elicited by defense counsel in order to provide an explanation as to why a purse containing that particular identification card was found at the scene of Nairobi Dupont's murder. Hill testified that she had given the card to her sister so that she could pick up Hill's welfare check. (N.T. 3/31/92, 66-67). This testimony was offered to explain why the identification card was no longer in Hill's possession and consequently could not have been left by her at the murder scene. Clearly then, it was permissible for the prosecutor to inquire further into the subject matter raised on direct examination, and Hill's claim that this information was elicited for purposes of inflaming the jury's passion is totally unfounded. See e.g. Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970) (the scope and limits of cross-examination are largely within the discretion of the trial court and its decisions pertaining thereto will not be reversed in the absence of a clear abuse of discretion or error of law).

Hill next argues that the prosecutor improperly exploited her admission that she used illegal drugs. The subject of Hill's cocaine use was raised by the defense during the cross-examination of Melinda Williford and by both the prosecution and defense during the direct and cross-examination of Donetta Hill. Again, this subject was first raised by defense counsel, and thus, the prosecutor was entitled to further explore it during cross-examination. See id.

Hill also takes exception to the prosecutor's questions concerning her use of cocaine while she was pregnant. She claims that this information had no probative value and was elicited solely to assail her character in front of the jury. We disagree and find that such information was relevant in light of her claim that she was coerced by police to confess. Hill contended at trial that she signed a written confession admitting to the two murders because police threatened to take her children away if she refused. It was therefore entirely proper for the prosecutor to call into question Hill's concern for the welfare of her children given her assertion that she falsely confessed to murder out of fear that her children would be taken away.

In a related claim, Hill asserts that the prosecutor lacked a good faith basis in pursuing the following line of questioning:

Q [by the prosecutor]: You'll do anything [for your kids]?

A [by Donetta Hill]: Anything for my kids. If you was a woman like I am, I suggest you would do the same.

Q: And these are children that you love and care about very much; is that right?

A: Yes.

Q: You would do anything for them; is that right?

A: Yes.

Q: Is that why in February of 1991 you left them alone with your mother and ran off onto the streets?

A: No, I didn't.

Q: So, if your mother called your probation officer and told him that she had not seen you in February or March or April of 1991 and they had no idea where you were and who was going to take care of the kids, that would be a lie?

A: That's a lie.

(N.T. 3/31/92, 123-24). Hill maintains that her probation officer did not corroborate this allegation when questioned by the prosecutor, and further, that the prosecutor failed to present any rebuttal witnesses to support her contention. However, the record is devoid of any objection raised by Hill on this point, and Hill never requested that the prosecutor state her basis for pursuing this line of questioning. Thus, she can not now be heard to complain that the prosecutor never offered a good faith basis for this inquiry. See e.g. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (issue was waived because the trial Judge was not given an opportunity to rectify the errors at the time that they occurred). Although this Court does not rigidly adhere to the rules of waiver in death penalty cases, we nevertheless conclude that Hill is not entitled to relief. Assuming arguendo that the prosecutor did not have a good faith basis to question Hill concerning the abandonment of her children, the overwhelming evidence of guilt presented at trial renders harmless any negative inference that may have resulted from the prosecutor's brief questioning on this point.

Hill next contends that the prosecutor committed misconduct by cross-examining her concerning prison sentences that she received for two robbery convictions. The Commonwealth responds that Hill opened the door to this subject on direct examination when she indicated that she was on "ISP" or intensive supervision probation house arrest. It is the Commonwealth's position that Hill's testimony misled the jury by suggesting that she was sentenced to probation because her convictions were only for minor infractions.

The record reveals that defense counsel made a timely objection when the prosecutor asked Hill about the sentences she received for her robbery convictions. (N.T. 4/1/92, 9). A sidebar Discussion followed whereby defense counsel and the prosecutor argued in support of their respective positions concerning the admissibility of this information. The trial Judge indicated that he did not recall whether Hill had volunteered that she was on probation or whether it was given as a response to a question. (N.T. 4/1/92, 15). He then concluded that if Hill had responded that she was put on probation, the prosecutor had a right to inquire about it. (N.T. 4/1/92, 15). Consequently, the prosecutor briefly pursued the matter and it was revealed that Hill had been sentenced to eight to twenty-three months in prison followed by two years probation for one second degree robbery conviction and five to twelve months followed by two years probation for a third degree robbery conviction.

The fact that Hill was on probation was first brought to the jury's attention when Hill stated that she stopped to see her probation officer prior to going to the homicide division of the Philadelphia Police Department. (N.T. 3/31/92, 47). Then, in a series of leading questions, defense counsel elicited from Hill that she was on probation, specifically ISP house arrest, as a result of guilty pleas that she had entered concerning two charges of robbery. "The admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may only reverse rulings on admissibility upon a showing that the lower court abused its discretion." Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). Although we do not find persuasive the Commonwealth's argument that Hill intended to deceive the jury as to the severity of her robbery convictions, we nevertheless are unable to conclude that the trial Judge abused his discretion in allowing the prosecutor to question Hill concerning a subject that she first raised on direct examination.

Additionally, on both occasions when the subject of these robbery convictions arose, the trial Judge promptly cautioned the jury that such evidence could not be accepted as evidence of the defendant's bad character but only to assess the credibility of her testimony. (N.T. 3/31/92, 47-48; 4/1/92, 16-17). Finally, given the overwhelming evidence of guilt in this case, we find that the brief reference to the prison sentences that Hill received for her guilty pleas was harmless.

The next alleged instance of prosecutorial misconduct took place on rebuttal when the prosecutor questioned Hill's probation officer about a probation violation that occurred prior to the murders. Specifically, it was elicited that Hill had twice not reported to her probation officer in January 1991, and further, that she tested positive for drugs in one of the urine samples that she was required to give as a condition of her probation. (4/1/92, 63-64). Our review of the record fails to support Hill's claim that this testimony was irrelevant and prejudicial.

It is clear that the prosecutor elicited this testimony to rebut specific assertions made by Hill on redirect examination that she reported to her probation officer regularly in January 1991, and that she never tested positive for drugs. (N.T. 4/1/92, 26-27 ). Although not directly relevant to the question of Hill's guilt or innocence, this rebuttal evidence was admissible in order to challenge Hill's credibility before the jury. See Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980) (the admission or rejection of rebuttal evidence is within the sound discretion of the trial court); Kaplan v. Loev, 327 Pa. 465, 467, 194 A. 653, 654, cert. denied, 302 U.S. 766, 58 S. Ct. 477, 82 L. Ed. 595 (1937) ("As bearing on his credibility, a witness may be cross-examined as to inconsistent acts or conduct generally, acts or conduct inconsistent with his testimony, or omissions on his part which tend to discredit him."). Thus, Hill is not entitled to relief on this claim.

Hill's final allegation of prosecutorial misconduct requires little Discussion. Hill asserts the prosecutor improperly attempted to blacken her character by questioning whether she used profanity while being interrogated by homicide detectives. Our review of the record discloses a number of occasions on direct examination where Hill used expletives in attempting to describe the alleged profanity that detectives directed toward her. (N.T. 3/31/92, 51, 55-56, 61). In one instance, Hill explained to the jury that an antagonistic verbal exchange between the police and her ended when she told one of the detectives to "f--- his mother in the mouth." (N.T. 3/31/92, 62). Based upon her unrestrained use of foul language during direct and cross examination, Hill's suggestion that she was prejudiced by the prosecutor's questioning on this subject is completely baseless.

Accordingly, we conclude that none of the allegations of prosecutorial misconduct, either individually or cumulatively, warrants relief in this case. The overwhelming evidence of Hill's guilt casts little doubt that the challenged conduct in this case was harmless. Furthermore, we decline to characterize any of the Hill's complaints about the prosecutor's actions in this case as misconduct.

Hill next relies upon several of the instances set forth above as grounds for relief based on claims of ineffective assistance of counsel. In order to prevail on such a claim, it must be shown that the claim has arguable merit, that there was no reasonable basis for counsel's action or inaction, and that the defendant was prejudiced in such a way that the outcome of the trial could reasonably have been different. Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987). Because her defense strategy was based on denying participation in the crime, Hill's ineffectiveness claims are premised on trial counsel's elicitation of evidence concerning her lifestyle and prior bad conduct, as well as his failure to have excluded other such evidence. She contends that such evidence undermined her credibility before the jury, and therefore, was at odds with the defense strategy.

Although Hill cites specific portions of the record to bolster her allegations of ineffectiveness, her arguments take the form of generalized complaints directed at the questions asked by trial counsel concerning her lifestyle on welfare, her drug use, her probation violations, and her fencing of stolen property. To the extent that specific requests for relief can be discerned, we will address them individually.

At trial, Melinda Williford, a long-time friend of Hill's, testified that Hill had given her a pair of gold-framed glasses, a watch, and two gold rings to sell to a local jeweler. (N.T. 3/25/92, 45-46). Williford sold one of the rings to the jeweler for twenty-five dollars and gave Hill ten dollars from the proceeds of the sale. (N.T. 3/25/92, 46-48). She testified that she threw the second ring away because it was worthless and sold the watch for fifteen dollars to someone else. (N.T. 3/25/92, 49). This testimony was particularly damaging because Han Lu, the son of murder victim Nghia Quy Lu, had previously testified that items of the same description belonging to his father were missing when he discovered his father's body. (N.T. 3/24/92, 92, 97).

In order to discredit Williford and her version of the jewelry transaction, trial counsel elicited testimony that she and Hill smoked crack together. During his closing argument, trial counsel argued that Hill, who was addicted to crack and on welfare, would not have murdered someone in order to steal their valuables and then give the stolen goods to someone else. (N.T. 4/2/92, 9-12). Given the nature of Williford's testimony, we cannot conclude that trial counsel acted unreasonably in light of the limited options available to impeach the credibility of this witness and offer an alternative explanation of the events that took place. Cf. Commonwealth v. Birdsong, 538 Pa. 587, 650 A.2d 26 (1994) (trial counsel's disclosure of defendant's prior bad acts was a reasonable trial strategy designed to show why commonwealth witnesses would lie).

Hill also contends that trial counsel was ineffective for not attempting to have her prior robbery convictions excluded from the jury during the guilt phase of her trial under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). This argument is wholly without merit as this Court has held subsequent to Bighum that "evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of the conviction or the last day of confinement is within ten years of the trial date." Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). Hill's prior convictions for robbery, which occurred less than ten years prior to her trial, were therefore admissible as a means of impeaching her credibility. See Commonwealth v. Yarris, 519 Pa. 571, 588 n.1, 549 A.2d 513, 522 n.1 (1988), cert. denied, 491 U.S. 910, 109 S. Ct. 3201, 105 L. Ed. 2d 708 (1989). Thus, no relief is due because counsel can never be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

We also find meritless Hill's complaint concerning testimony elicited by trial counsel that she traded stolen property for money and drugs. The record indicates that this subject was first raised by the Commonwealth during its case-in-chief several days prior to the time when Hill alleges trial counsel wrongly inquired about it. (N.T. 3/26/92, 58-62; 3/31/92, 104). This evidence was clearly admissible because Hill was charged with, and convicted of, robbery for the items stolen from the Dupont home. Alternatively, this evidence would also be admissible to establish Hill as the murderer based on the connection between the murders and the specific articles of personal property that were stolen from each murder scene. As we stated in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981),

the general rule . . . allows evidence of other crimes to be introduced to . . . establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.

Id. at 175, 425 A.2d at 720. Accordingly, we conclude that the admission of this evidence was proper, and Hill's claim of ineffectiveness is without foundation.

Hill additionally makes the blanket assertion that there was no reasonable basis for trial counsel's failure to object to the admission of the evidence set forth in her claims alleging prosecutorial misconduct. Like her previous argument, Hill claims only that this evidence was inherently prejudicial and that she was entitled to have her credibility Judged free of this damaging evidence. In light of the fact that we have previously concluded that Hill was not prejudiced by the admission of this evidence, we need not revisit these issues in the context of a claim of ineffective assistance of counsel. Hill has not met her burden of proving prejudice, and thus, has failed to overcome the presumption of trial counsel's effectiveness. See Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Hill's next assignment of error is directed at the instructions given by the trial court to the jury during the penalty phase of her trial. She maintains that the jury received very little guidance as to the nature and method of weighing mitigating circumstances. Hill additionally contends that the jury was never told that if it found mitigating circumstances that it could dispense mercy and impose a life sentence. Our review of the record fails to support Hill's argument concerning the trial court's instructions, and further, we disagree with her argument that the jury should have been advised that it could have sentenced her to life based on sympathy.

The trial court instructed the jury on the essential points necessary for it to make an informed decision pursuant to the guidelines set forth in the Sentencing Code for death penalty cases, 42 Pa.C.S. 9711. The court instructed that the defendant had to prove any mitigating circumstance by a preponderance of the evidence; that the mitigating circumstance in this case was evidence concerning the character and record of the defendant and the circumstances of her offense; that any individual juror could find present the mitigating circumstance presented by the defendant; and that the aggravating circumstances should be weighed qualitatively, not quantitatively, against the mitigating circumstances during jury deliberations. (N.T. 4/7/92, 37-41). In addition, the court read the entire verdict slip to the jury prior to sending it to deliberate Hill's sentence and twice admonished the jury to read it again before deliberating. (N.T. 4/7/92, 41-44, 60). Having reviewed the court's instructions as a whole, we conclude that the jury was adequately instructed as to the mitigating circumstance presented by Hill as well as the proper method of weighing that circumstance in its deliberations.

We must also reject Hill's claim that the court should have instructed the jury that it could have dispensed mercy if it so chose. In Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), the appellant presented essentially the same argument claiming that the trial court had erred in refusing his request to instruct the jury that it was free to impose a life sentence for any reason whatsoever. We held that the trial court did not err in refusing the request because

such an instruction would inject arbitrariness and capriciousness into the capital sentencing process. In the absence of a standard to guide the jury's expression of mercy and leniency, there would be no guarantee of consistency in sentencing across cases. The appellant was allowed to present and argue any evidence which was relevant and admissible in an attempt to convince the jury that the death sentence should not be imposed in his case. That is all that is constitutionally required.

Id. at 76, 637 A.2d at 1322 (citations omitted). We find this reasoning applicable to Hill's instant claim for relief, and therefore, conclude that the trial court did not err in failing to advise the jury that sympathy could be considered in its deliberations over the appropriate sentence.

Hill next alleges that the prosecutor's summation to the jury at the penalty phase was inflammatory and prejudicial. Hill claims that the prosecutor improperly stated that the victims' families, not the defendant, deserved the sympathy in this case; that the jury could consider the fact that one of the victims did not understand the English language; and that the jury should not be swayed by sympathy due to Hill's age, sex, or the fact that she cried during the sentencing proceeding.

The primary guideline in assessing a claim of error of this nature is to determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict. In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding, and the prosecution, like the defense, must be accorded reasonable latitude in fairly presenting its version of the case to the jury. Nevertheless, we do require that the contentions advanced must be confined to the evidence and the legitimate inferences to be drawn therefrom. Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated. The verdict must flow from the respective strengths and weaknesses of the evidence presented and not represent a response to inflammatory pleas for either leniency or vengeance.

Commonwealth v. Brown, 489 Pa. 285, 297-98, 414 A.2d 70, 76 (1980) (citations omitted). Although Hill would have this Court review each of the prosecutor's comments in a vacuum, we must examine the summation in its totality. See Commonwealth v. Carpenter, 533 Pa. 40, 49, 617 A.2d 1263, 1265 (1992) ("remarks made by a prosecutor must be evaluated in the context in which they occur."). Based on the foregoing considerations, we find that the prosecutor's closing argument was not inflammatory or prejudicial.

Hill takes exception to the prosecutor's suggestion that her tears during the penalty phase were for herself rather than for her victims or their families. This was proper in light of the fact that Hill expressed no remorse during the guilt phase of trial and steadfastly maintained that she had been falsely accused by her friends and framed by the police. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256, 104 S. Ct. 3547, 82 L. Ed. 2d 850 (1984) (no error where prosecutor commented on defendant's lack of remorse during penalty phase of capital trial).

We likewise do not find merit to Hill's assertion that the prosecutor implied to the jury that it should impose the death sentence out of sympathy for the families of the victims. The challenged comment suggested only that if Hill appealed to the jury to impose a life sentence based on sympathy, that the jury should reject it. This was not improper. See 502 Pa. at 500-01, 467 A.2d at 288.

Accordingly, we conclude that the prosecutor's closing argument, when viewed in its entirety, did not have the effect of inflaming the passions of the jury nor did it impede their ability to objectively evaluate the evidence presented during the sentencing hearing.

The final issue raised in this appeal is a claim of ineffectiveness of trial counsel whereby Hill argues that counsel should have requested that the court instruct the jury on the definition of "significant history" as it applies to the aggravating circumstance set forth in 42 Pa.C.S. 9711(d)(9). Hill concedes that she had two prior robbery convictions, but submits that the vagueness of the phrase "significant history" provides uncertainty as to whether her two convictions fit within the definition.

This Court has repeatedly rejected the claim that 42 Pa.C.S. 9711(d) (9) is unconstitutionally vague. Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994); Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986); Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985); Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984). Additionally, in Commonwealth v. Rivers, supra, the appellant raised an identical challenge to the trial court's failure to define the meaning of "significant history" of felony convictions. Defense counsel in Rivers had requested the trial court to find, as a matter of law, that the appellant's prior record of two aggravated assaults could not be considered a significant history of felony convictions. In affirming the trial court's refusal of that request, we noted that it was the function of the jury to determine whether the appellant's record of two prior aggravated assaults constituted a significant history of felony convictions. 537 Pa. at 413, 644 A.2d at 719.

Likewise in the instant case, it was solely within the province of the jury to determine whether Hill's two prior convictions for robbery served as a sufficient basis to conclude that she had a significant history of felony convictions. Any request seeking to have the court elaborate on what constitutes a "significant history" would therefore have been refused on that basis. Accordingly, because this claim is without merit, Hill's allegation of ineffectiveness must fail.

Our review of the record reveals that the sentence imposed was not the product of passion, prejudice, or any other arbitrary factor. Further, the three aggravating circumstances found by the jury in this case are all supported by evidence in the record. The jury found that Hill committed a killing while in the perpetration of a felony, 42 Pa.C.S. 9711(d)(6); that she had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. 9711(d)(9); and that she had been convicted of another murder, committed either before or at the time of the offense at issue, 42 Pa.C.S. 9711(d)(11). Both victims were murdered during the commission of robberies in which Hill stole items of personal property which she later exchanged for money and drugs. Hill had previously committed two other robberies, each involving the use of force against an older woman. Finally, the jury had convicted Hill of two counts of first degree murder during the guilt phase of trial thereby establishing the basis for the third aggravating circumstance.

Lastly, the information compiled by the Administrative Office of Pennsylvania Courts indicates that the sentence imposed in this case is not disproportionate to the sentence imposed in similar cases.

Judgment of sentence affirmed.

Mr. Justice Montemuro is sitting by designation.

 

 

 
 
 
 
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