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.
By Raoul V. Mowatt - Philly.com
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.
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.