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Carolyn King
resentenced to life term for 1993 Palmyra murder
Idnews.com
March 5, 2015
There are some things Judy Goodman will never know about her
father's murder more than 20 years ago.
On Tuesday, she had hoped to hear why Carolyn King and Bradley
Martin killed 74-year-old Guy Goodman in his Palmyra townhouse.
Judy Goodman sat and listened Tuesday afternoon as King, sentenced
in 1994 to die for the murder, was resentenced by Senior Judge
David Grine from Centre County to life in prison without the
possibility of parole.
She heard no explanation from King, who took part in the hearing
by way of a video hookup from the State Correctional Institution
at Muncy in Lycoming County.
"I wish she would have made a comment," Goodman said afterwards.
She said she hoped King, now 49 years old, would have said why her
father was killed.
"We'll never know why," Goodman said.
King and Martin were convicted Oct. 14, 1994, of first-degree
murder and other offenses and sentenced to die.
After years of appeals, the state Supreme Court denied them a new
trial but ordered new sentencing hearings for both of them.
In December, Lebanon County Senior Judge Robert J. Eby, who had
presided at the 1994 murder trial, ruled that the prosecution
could not seek the death penalty against Martin, who is now 42
years old. The judge said in his ruling that Martin had been
offered a plea agreement as part of a package deal with King
before their trial.
King refused to plead guilty; the two went to trial and were
convicted of first-degree murder for killing Goodman on Sept. 15,
1993.
The district attorney at the time of their 1994 trial, Bradford
Charles, required Martin and King to both plead guilty in order to
receive a life sentence.
A package plea offer was made to Martin and King on Feb. 7, 1994,
and was available to them when their trial began on Sept. 30,
1994.
Eby, in his December ruling, said King had a pen to sign the
agreement but changed her mind at the last minute.
"After careful and deliberate consideration of what we believe to
be a case of first impression in this Commonwealth, we find that
the proffered agreement as to (Martin), who was prevented from
accepting its terms solely on the basis of a whim of his
co-defendant, does indeed violate the protections of Due Process
afforded by the United States and Pennsylvania Constitutions," Eby
wrote in his December ruling.
District Attorney David Arnold did not appeal Eby's ruling.
Martin was resentenced on Jan. 26 to life in prison without
parole.
That set the stage for King's resentencing and again the district
attorney decided not to fight what he considered to be the
inevitable conclusion of the two-decades old case.
On Tuesday, Arnold told Grine that he believed King and Martin
should have been executed 20 years ago but the political climate
over the death penalty and Gov. Tom Wolf's decision to place a
moratorium on executions in Pennsylvania took that option off the
table.
Arnold said there is no doubt that King and Martin are guilty of
homicide for the brutal killing of Goodman "for absolutely no
reason whatsoever."
"There's no doubt the defendant is guilty of homicide. She flat
out admitted it," Arnold said about King.
He said it was in the best interests of the prosecution and
Goodman's family to resentence King to life in prison.
Defense attorney Michael Wiseman said if the sentencing phase had
gone before a jury, the public would have learned that King had
been a victim in her own life as a child and a young woman,
without providing details.
Earlier appeals filed on behalf of King stated she had been the
victim of sexual abuse and domestic violence, and had suffered
from depression and drug abuse.
King had nothing to say before she was sentenced to life behind
bars.
Michael Wahmann, the county detective who was a lead investigator
in the Goodman murder case, said after Tuesday's hearing that he
still believed King should have received the death penalty.
"If there was ever a person who deserved it, it was Carolyn King,"
he said.
As part of the agreement sentencing her to life in prison, King
gave up her right to file any future appeals in state or federal
courts.
Martin was 22 at the time of the murder; King was 28. Martin, who
had been incarcerated on a parole violation, was free on a
two-hour pass from the Lebanon County prison when he and King
traveled to Goodman's home on Sept. 15, 1993. Goodman had visited
Martin and written to him while Martin was in prison.
Martin struck Goodman over the head with a vase, and the couple
duct-taped a plastic bag over his head. Goodman's body was found
by police 10 days later.
Martin and King stole Goodman's car, credit card and checkbook and
drove to Bismarck, N.D., where they abducted a 59-year-old woman,
Donna Martz, later killing her in the Nevada desert. They were
arrested in Arizona after a police chase on Oct. 5, 1993.
Martin and King pleaded guilty to first-degree murder in the death
of Martz and were sentenced to life in prison in Nevada. The
Nevada sentence is consecutive to the sentence for the Goodman
murder.
New sentencing hearing awaits for convicted killer Bradley Martin
Convicted in the death of Palmyra florist Guy Goodman in 1993,
Bradley Martin will have a sentencing hearing in 2015
By Steve Snyder - Idnews.com
June 28, 2014
Bradley Martin will have to wait until next year for his new
sentencing hearing.
Martin, 43, was convicted of first-degree murder in 1994 for the
death of 74-year-old florist Guy Goodman in his Palmyra townhouse
in 1993.
The Pennsylvania Supreme Court denied a new trial for Martin and
his co-conspirator, Carolyn King, but ordered new sentencing
hearings for both.
Lebanon County District Attorney David Arnold and Chief Public
Defender Brian Deiderick met with Senior Judge Robert Eby earlier
this week to discuss a timeline for Martin's hearing. Arnold said
the target is late spring 2015.
King's hearing will follow that of Martin. A status conference for
King was held May 12, and a scheduling hearing will be set for the
first or second week of October.
Arnold is continuing to pursue the death penalty in both cases, at
the request of Goodman's family. Martin is willing to plead guilty
to a sentence of life in prison, Deiderick said.
Martin was 22 at the time of the murder; King was 28. Martin, who
had been incarcerated on a parole violation, was free on a
two-hour pass from the Lebanon County prison when he and King
traveled to Goodman's home on Sept. 15, 1993. Goodman had visited
Martin and written to him while Martin was in prison.
Martin struck Goodman over the head with a vase, and the couple
duct-taped a plastic bag over his head. Goodman's body was found
by police 10 days later.
Martin and King stole Goodman's car, credit card and checkbook and
drove to Bismarck, N.D., where they abducted and killed a
59-year-old woman. They were arrested in Arizona after a police
chase on Oct. 5, 1993.
Martin and King pleaded guilty to first-degree murder in the death
of Donna Martz and were sentenced to life in prison in Nevada.
Death row inmate Carolyn King will receive
another sentencing hearing sometime
May 12, 2014
There's no rush though.
Senior Judge David Grine from Centre County came to Lebanon Monday
morning for what turned out to be a five-minute status conference
on King's case.
After hearing from Lebanon County District Attorney David Arnold
and King's counsel, Harrisburg attorney Thomas Schmidt, during a
status conference Monday, Grine asked Schmidt to review records of
the two-decades-old case and attempt to obtain any documents he
needs prior to the first week in October.
Grine requested that a date for a scheduling hearing be set by
Lebanon County Court Administration for the first or second week
in October.
King and her co-conspirator, Bradley Martin, were convicted of
first-degree murder in 1994 for the death of 74-year-old Palmyra
florist Guy Goodman in his Palmyra townhouse in 1993.
The Pennsylvania Supreme Court denied Martin and King new trials
but ordered new sentencing hearings.
Arnold is continuing to pursue the death penalty in both cases, at
the request of Goodman's family.
King's case is expected to be heard after Martin's sentencing. No
date has been set for that hearing.
Martin was 22 at the time of the murder; King was 28. Martin, who
had been incarcerated on a parole violation, was free on a
two-hour pass from Lebanon County prison when he and King traveled
to Goodman's home on Sept. 15, 1993. Goodman had visited Martin
and written to him while Martin was in prison. Martin struck
Goodman over the head with a vase and the couple duct-taped a
plastic bag over his head. Goodman's body was found by police 10
days later.
Martin and King stole Goodman's car, credit card and check book
and drove to Bismarck, N.D., where they abducted and killed a
59-year-old woman. They were arrested in Arizona after a police
chase on Oct. 5, 1993.
The pair pleaded guilty to first-degree murder in the death of
Donna Martz and were sentenced to life in prison in Nevada.
DA to continue seeking death penalty for convicted murderer Martin
August 27, 2013
Lebanon Daily News
Lebanon County District Attorney David Arnold says he will
continue to seek the death penalty in the cases of Bradley Martin
and Carolyn King, who were sentenced to death for the 1993 murder
of a Palmyra florist.
Pennsylvania Supreme Court denied Martin and King new trials but
ordered new sentencing hearings.
Martin and King were convicted of 1st-degree murder in 1994 for
the death of 74-year-old Guy Goodman in his Palmyra townhouse.
Arnold and Chief Public Defender Brian Deiderick met with Senior
Judge Robert Eby last week to set up a schedule for Martin's case,
which will be handled first.
Defense expert reports are due Nov. 15, with the prosecution's
expert reports to follow at a later date.
Arnold said he anticipates Martin's sentencing hearing to be
scheduled in late spring or early summer 2014.
"Both Bradley Martin and Carolyn King were sentenced to death by a
jury of their peers," Arnold wrote in an email. "The prosecutors
who handled the case, as well as the victim's family believe we
should continue to seek the death penalty. I believe I have an
obligation to continue to pursue the death penalty against both of
these convicted murderers."
In June, Deiderick told Lebanon County commissioners that Martin
was willing to agree to a life sentence without parole. That would
eliminate the need for a sentencing hearing.
The sentencing hearings are expected to cost the county thousands
of dollars in legal expenses. In June, Lebanon County
commissioners approved the use of TempForce to make copies of
thousands of pages of legal documents associated with Martin's
case.
Martin was 22 at the time of the murder; King was 28. Martin, who
had been incarcerated on a parole violation, was free on a 2-hour
pass from Lebanon County prison when he and King traveled to
Goodman's home on Sept. 15, 1993. Goodman had visited Martin and
written to him while Martin was in prison. Martin struck Goodman
over the head with a vase and the couple duct-taped a plastic bag
over his head. Goodman's body was found by police 10 days later.
Martin and King then stole Goodman's car, credit card and check
book and drove to Bismarck, N.D., where they abducted and later
killed a 59-year-old woman. They were arrested in Arizona after a
police chase on Oct. 5, 1993.
The pair pleaded guilty to 1st-degree murder in the death of Donna
Martz and were sentenced to life in prison in Nevada.
Woman convicted in 1993 Palmyra murder to get new penalty hearing
By Barbara Miller - Pennlive.com
August 4, 2010
Carolyn King, convicted along with Bradley Martin in the 1993
murder of Palmyra florist Guy Goodman, should get a new penalty
hearing, a Pike County judge appointed to hear the case ruled
recently.
Judge Harold A. Thomson Jr. said a new penalty hearing should be
held to consider mitigating evidence regarding past abuse and
mental disorders that was not presented at King's sentencing
hearing in 1994. He said her attorney, M. Jannifer Weiss,
testified she didn’t have time to investigate the issues because
the penalty phase began immediately after the verdict and that she
didn’t feel testimony on the matters would have helped her
defense.
Thomson rejected King’s claims that she should get a new trial
because Weiss didn’t have sufficient criminal trial experience,
among a dozen other reasons.
In 1994 King and Martin were convicted of the murder of Goodman,
whom they bound and left to suffocate with a bag taped over his
head in the basement of his home. Both appealed their death
sentences, and Martin’s was overturned in 2004. They also received
life sentences in the shooting death of a North Dakota woman they
abducted after Goodman’s murder.
Accomplice in Cross-Country Spree Gets Life in Nevada Slaying
Las Vegas Sun
Wednesday, March 13, 1996
Prosecutors said Carolyn King was with the accused triggerman,
Bradley Martin, when they kidnapped Donna Mae Martz from a
Bismarck, N.D., hotel parking lot in September 1993, then murdered
her in the desert near here the following month.
Martin, 23, was sentenced Jan. 11 to two consecutive life
sentences without parole by Elko District Judge Jack Ames, who
also sentenced King on Tuesday.
King, 30, from
Hershey, Pa., was ordered to serve her sentence consecutive to any
other sentence she has to serve.
Both she and
Martin were found guilty in Pennsylvania on Oct. 12 of the torture
and suffocation of retired Palmyra, Pa., florist Guy Goodman, 70,
and were sentenced to death by lethal injection.
Goodman's murder on Sept. 17, 1993, was the start of a 12-state
flight that passed through Elko before ending with the couple's
arrest in Yuma, Ariz., on Oct. 5, 1993.
Martin,
who had a string of 20 felony convictions, was released on a
four-hour furlough from a Lebanon County, Pa., penitentiary for a
conjugal visit with King. Instead, they went to Goodman's home,
murdered him, and took his car and credit cards.
The pair resurfaced in Bismarck where they abducted Martz, 50,
forced her into the trunk of her own car and drove to Elko, where
Martin and King went shopping Oct. 3, 1993.
They
then drove into the desert, where Martin forced Martz to disrobe
and lie down in a ditch where he shot her once in the head with a
.357 magnum revolver, Deputy District Attorney Rob Lowe told the
Elko Daily Free Press.
Supreme Court of Pennsylvania.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Carolyn Ann KING,
Appellant.
COMMONWEALTH of Pennsylvania, Appellee,
v.
Bradley A. MARTIN,
Appellant.
Decided: December 02, 1998
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN
and SAYLOR, JJ.M. Jennifer Weiss, Lebanon, Robert Brett Dunham,
Philadelphia, for Carolyn Ann King, appellant. Keith L. Kilgore,
Lebanon, Robert Brett Dunham, Philadelphia, for Bradley Martin,
appellant. Bradford H. Charles, Donna Long Brightbill, Lebanon,
Robert A. Graci, Office of Atty. Gen., for the Com.
OPINION
These are consolidated direct appeals from death sentences imposed
after a jury found co-defendants, Carolyn King and Bradley Martin,
guilty of first-degree murder and related offenses. We affirm.
On September 15, 1993, Martin, who was serving a sentence at the
Lebanon County Correctional Facility as the result of a parole
violation, obtained a two-hour visitation pass and left the
prison. He met King, with whom he was romantically involved, and
failed to return to prison as required. Instead, the two
traveled to Palmyra, Pennsylvania, where they called upon Guy
Goodman, with whom Martin was acquainted. Mr. Goodman, who was
seventy-four years old, had written, telephoned and visited Martin
in prison, identifying himself as Martin's friend.1
At some point, Martin and King had decided to obtain money from
Mr. Goodman, and apparently they were prepared to use force.
Soon after their arrival at Goodman's home, Martin hit Goodman
over the head with a vase from the hallway, and the pair then
bound Goodman's wrists, ankles and neck in such a manner that he
could not extricate himself. They then wrapped a bathrobe around
Goodman's head, placed a plastic bag over it, sealed the bag with
duct tape, and wrapped a bedspread over the bag. Finally, they
carried Goodman into the basement, tying him more securely and
leaving him to suffocate.
Martin and King then stole Mr. Goodman's checkbook and credit card
and drove away in his car. After several brief visits with
friends in Pennsylvania, the couple fled across the country in
Goodman's car, using his checks and credit card to pay their
expenses. They were ultimately apprehended in Arizona, at which
time King was advised of her rights and gave a statement to
federal law enforcement officials, inculpating herself and Martin
in Goodman's murder. King later reiterated her inculpatory
statement to Lebanon County detectives who were investigating
Goodman's death. While in custody in Arizona, Martin was
interrogated by Lebanon County detectives, who gave him Miranda
warnings. After signing a form stating that he waived his
rights, Martin inculpated himself in the robbery and murder.
Subsequently, Martin made an additional statement to a corrections
officer at the Lebanon County Prison, admitting that he had killed
Goodman.
Martin and King were charged with Goodman's murder and proceeded
to a joint trial. Prior to trial, both defendants filed motions
for severance, which the trial court denied. Additionally,
Martin filed a motion to suppress his incriminating statement to
the Lebanon County detectives, asserting that he had been under
the influence of drugs at the time he gave the statement. The
trial court denied the motion. Martin chose not to testify at
the jury trial that followed, but King testified on her own
behalf, and her tape-recorded inculpatory statement was played for
the jury. At the conclusion of the guilt phase, the jury found
both defendants guilty of first-degree murder, aggravated assault,
robbery, theft by unlawful taking, flight to avoid apprehension,
escape and conspiracy.
Trial proceeded to the penalty phase, during which the
Commonwealth presented two aggravating circumstances with respect
to both defendants: perpetration of the homicide during the
commission of a felony, 42 Pa.C.S. § 9711(d)(6), and commission of
the offense by means of torture, 42 Pa.C.S. § 9711(d)(8). In
support of the aggravating circumstance at subsection (d)(6), the
prosecutor reminded the jury that it had convicted both defendants
of robbery, which is a felony, and that the killing had occurred
during the commission of the robbery. In support of the
aggravating circumstance at subsection (d)(8), the prosecutor
introduced the videotaped testimony of Dr. Isadore Mihalikis, a
forensic pathologist.
The Commonwealth also presented evidence in support of the
aggravating circumstance of a significant history of felony
convictions involving the use or threat of violence to the person,
42 Pa.C.S. §9711(d)(9), with respect to Martin. In support of
this aggravating circumstance, the Commonwealth introduced
evidence of Martin's five prior burglary and criminal trespass
convictions.
Martin and King both presented evidence in support of the
following mitigating circumstances: their ages at the time of the
crime, 42 Pa.C.S. §9711(e)(4), and other evidence of mitigation
concerning their character and records and the circumstances of
the offense, 42 Pa.C.S. §9711(e)(8). King presented additional
evidence in support of the mitigating circumstance that her
participation in the homicidal act was relatively minor, 42 Pa.C.S.
§ 9711(e)(7). Both Appellants sought to present evidence and
argument concerning the character of a life sentence in
Pennsylvania; however, the trial court sustained the
Commonwealth's objection to such evidence and argument and
declined to provide any instruction.
At the conclusion of the penalty phase, the jury found that all of
the aggravating circumstances presented with respect to each
defendant had been established, and found no mitigating
circumstances for either defendant. Accordingly, death sentences
were imposed. These consolidated appeals followed.
SUFFICIENCY OF THE EVIDENCE
Although Martin and King (“Appellants”) do not challenge the
sufficiency of the evidence, this Court is required to conduct an
independent review of the sufficiency of the evidence supporting a
first-degree murder conviction in all capital cases. 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). In conducting this review, we must view the
evidence, and all reasonable inferences drawn therefrom, in the
light most favorable to the Commonwealth as the verdict winner and
determine whether the jury could have found every element of the
crime to have been proven beyond a reasonable doubt. Commonwealth
v. Michael, 544 Pa. 105, 110, 674 A.2d 1044, 1047 (1996).
To prove first-degree murder, the Commonwealth must demonstrate
that the defendant acted with a specific intent to kill, that a
human being was unlawfully killed, that the defendant committed
the killing, and that the killing was done in an intentional,
deliberate and premeditated manner. 18 Pa.C.S. §2502(d);
Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626
(1991). Circumstantial evidence can itself be sufficient to
prove any element or all of the elements of criminal homicide.
Commonwealth v. Cox, 546 Pa. 515, 528-29, 686 A.2d 1279, 1285
(1996), cert. denied, 522 U.S. 999, 118 S.Ct. 567, 139 L.Ed.2d 407
(1997).
Here, the evidence adduced at trial established that the cause of
Goodman's death was asphyxiation, which resulted from his head
being encased in layers of wrappings while he was bound and unable
to extricate himself. A neighbor who discovered the body
testified that there were signs that a struggle had occurred in
the victim's home. Further examination of the home by the police
revealed that the upstairs had been ransacked, and Martin's
fingerprints were found on currency that had been left in the
victim's bedroom. Both King's and Martin's fingerprints were
found on pieces of duct and masking tape that were left in the
home, as well as on a glass and a bowl of peanuts in the kitchen.
Handwriting on checks that were drawn on the victim's bank
account matched that of King, and a number of store clerks
identified King and Martin as the individuals who had presented
the victim's credit card or checks to them as payment. When King
and Martin were apprehended, Martin was in possession of Mr.
Goodman's credit card, and blank checks found in Goodman's
abandoned vehicle bore the fingerprints of both defendants.
Additionally, King confessed to both federal agents and Lebanon
County detectives, implicating herself and Martin in the murder.
Martin also confessed to Lebanon County detectives, as well as to
a Lebanon County corrections officer, admitting that he had hit
Goodman over the head with a vase and that he had tied up Goodman
“real good.”
Thus, the evidence in this case is clearly sufficient to support
the convictions of first-degree murder, and we now turn to the
issues raised by Martin and King in their appeals.
GUILT PHASE
Appellants' first argument arising from the guilt phase of trial
is their claim that the trial court erred in denying their motions
for severance. Appellants emphasize that their defenses were
mutually antagonistic, in that they each contended that the other
manipulated him or her into participating in the crimes. Thus,
Appellants argue, the consolidation of their trials was
prejudicial, because the jury's acceptance of one defendant's
defense would necessarily have required it to reject the other's
defense and convict that defendant.
Pennsylvania Rule of Criminal Procedure 1127 provides that
defendants charged in separate indictments may be tried together
if they are alleged to have participated in the same acts
constituting the offenses charged. Pa.R.Crim.P. 1127(A)(2).
However, Rule 1128 provides that separate trials may be ordered if
it appears that any party may be prejudiced by a joint trial. Pa.R.Crim.P.
1128. The decision whether to sever the trials of co-defendants
resides within the sound discretion of the trial court and will
not be disturbed on appeal absent a manifest abuse of such
discretion. Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d
367, 372 (1985).
In this case, both defendants attempted to exculpate themselves
by inculpating the other defendant. Such finger pointing alone,
however, is insufficient to warrant separate trials. See
Commonwealth v. Lambert, 529 Pa. 320, 332, 603 A.2d 568, 573
(1992). Furthermore, this Court has stated that “[t]he mere fact
that there is hostility between defendants, or that one may try to
save himself at the expense of another, is in itself not
sufficient grounds to require separate trials. In fact, it has
been asserted that the fact that defendants have conflicting
versions of what took place, or the extents to which they
participated in it, is a reason for rather than against a joint
trial because the truth may be more easily determined if all are
tried together.” Commonwealth v. Chester, 526 Pa. 578, 590, 587
A.2d 1367, 1373, cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116
L.Ed.2d 442 (1991) (citations omitted). Additionally, where the
defendants have been charged with conspiracy, a joint trial,
rather than separate trials, is preferred. See id. at 589-90,
587 A.2d at 1372-73.
Here, the following factors militated in favor of a joint trial:
Appellants were charged with conspiracy; the majority of the
crimes charged were the same; the circumstances giving rise to
the crimes were identical with respect to both defendants; and
the witnesses necessary to prove the crimes were the same. The
fact that Appellants argued conflicting versions concerning the
extent of their participation in the crimes is not controlling,
and we perceive no abuse of discretion by the trial court in
refusing to sever.
Appellants also contend that the indictment charging Martin with
escape should not have been consolidated with the indictment
charging him with homicide.2 Martin argues that placement of the
escape charge before the jury inappropriately disclosed the fact
that he had been imprisoned for a previous offense and had
violated the terms of visitation-release. Therefore, he claims
that the jury was presented with evidence of prior offenses, which
was inadmissible with respect to the homicide charge. King
argues that the evidence of prior offenses implicit in Martin's
escape indictment was prejudicial to her, because it portrayed her
as being guilty by association with an individual who was
predisposed to criminal behavior.
Like the decision to sever, the determination of whether to
consolidate separate indictments for trial is a matter addressed
to the sound discretion of the trial court, and the trial court's
ruling will not be disturbed absent a manifest abuse of such
discretion or prejudice and clear injustice to the defendant.
Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718
(1981). Pennsylvania Rule of Criminal Procedure 1127 provides
that offenses charged in separate indictments may be consolidated
for trial if: 1) the evidence of each offense would be admissible
in a separate trial for the other and is capable of separation by
the jury so that there is no danger of confusion; or 2) the
offenses charged are based on the same act or transaction. Pa.R.Crim.P.
1127(A)(1)(a), (b).
Although evidence of prior crimes is inadmissible for the sole
purpose of demonstrating a defendant's bad character or propensity
for criminal behavior, Commonwealth v. Banks, 513 Pa. 318, 349,
521 A.2d 1, 17, cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98
L.Ed.2d 162 (1987), such evidence may be admitted under special
circumstances where it is relevant for some other, legitimate
purpose. Commonwealth v. Claypool, 508 Pa. 198, 204, 495 A.2d
176, 178 (1985). One special circumstance is present where the
prior crimes evidence is part of the chain or sequence of events
which became part of the history of the case and formed part of
the natural development of the facts. Commonwealth v. Lark, 518
Pa. 290, 303, 543 A.2d 491, 497 (1988) (citations omitted).
Here, Martin's escape was clearly part of the natural chain of
events leading up to Mr. Goodman's murder, and the charges of
escape and homicide therefore stemmed from essentially a single
criminal episode. Moreover, having reviewed the record, we
conclude that the evidence in support of each offense was capable
of separation by the jury. The trial court specifically
instructed the jury that it was required to decide separately each
issue before it: “Simply because I decided to consolidate these
cases does not allow you to consider them as one for purposes of
your deliberations.” Thus, we discern no abuse of discretion by
the trial court or prejudice to either appellant as a result of
the consolidation of the indictments.3
Appellants also contend that evidence of their possession of
marijuana and of Martin's prior violations of his work-release
privileges constituted evidence of uncharged prior offenses, which
should not have been admitted at trial. Contrary to Appellants'
contentions, the evidence of Martin's previous visits with Mr.
Goodman while on a work-release pass was presented for the
legitimate purpose of establishing that there was a relationship
between the two men prior to Goodman's murder. With respect to
certain witnesses' references to Appellants' possession of
marijuana, the majority of these comments were inadvertently
elicited when the prosecutor asked one of the witnesses to
describe his conversations with Appellants after the murder. The
other references were elicited on cross-examination by defense
counsel either in an attempt to discredit another witness, or
merely as part of the sequence of events immediately following the
murder. At no time did either appellant object to the testimony,
nor did the Commonwealth seize upon the references to Appellants'
possession of drugs, which occurred infrequently and were
innocuous in the context of the overall trial. Accordingly, no
relief is due either appellant on this claim.
Appellants next challenge the admission of a photograph of the
victim's body and evidence concerning the personal character of
the victim. It is well settled that a decision concerning the
admission or exclusion of evidence is within the sound discretion
of the trial court and will not be disturbed absent an abuse of
such discretion. Commonwealth v. Cohen, 529 Pa. 552, 563, 605
A.2d 1212, 1218 (1992).
The challenged photograph was among several that the Commonwealth
offered into evidence at trial as probative of the manner in which
the homicide occurred. The trial court overruled defense
counsels' objection to the admission of these photographs, ruling
that they were not inflammatory. Appellants now argue that
Exhibit 42, a black-and-white photograph depicting the manner in
which the victim was tied, was indeed inflammatory because it also
depicted certain signs of the body's decomposition, specifically,
the blackening of the victim's hands and the secretion of bodily
fluids. Appellants also point to the fact that other photographs
that were admitted rendered substantially the same image, without
the graphic depiction of decomposition. Therefore, Appellants
claim that Exhibit 42 not only was inflammatory, but also was
cumulative evidence that need not have been admitted.
Photographs of a murder victim are not per se inadmissible. See
Chester, 526 Pa. at 591, 587 A.2d at 1373 (citations omitted).
“To permit the disturbing nature of the images of the victim to
rule the question of admissibility would result in the exclusion
of all photographs of the homicide victim, and would defeat one of
the essential functions of a criminal trial, inquiry into the
intent of the actor. There is no need to so overextend an
attempt to sanitize the evidence of the condition of the body as
to deprive the Commonwealth of opportunities of proof in support
of the onerous burden of proof beyond a reasonable doubt.”
Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549
(1982). The determinative inquiry is whether the evidentiary
value of the photographs outweighs the possibility of inflaming
the minds and passions of the jurors. See Commonwealth v.
Jacobs, 536 Pa. 402, 406-07, 639 A.2d 786, 788 (1994).
Here, the challenged photograph, although clearly showing the
initial stages of decomposition, was relevant in that it depicted
the manner in which the victim was tied, which was essential to
proving the intent element of first-degree murder. As the trial
court noted in ruling on Appellants' objection, the jury was
informed by the district attorney that the bodily fluids and
blackening of the victim's hands were attributable to the
decomposition process. Accordingly, we perceive no abuse of
discretion by the trial court in admitting Exhibit 42 into
evidence. See generally Commonwealth v. Hudson, 489 Pa. 620,
631, 414 A.2d 1381, 1386-87 (1980)(finding that the trial court
did not abuse its discretion in admitting photographic evidence
depicting the manner in which a homicide victim was bound, which
evidence “aided the jury by showing the area in which the crimes
were committed and the position of the corpse in that area”).
Appellants further contend that certain evidence touching upon
the personal character of the victim was inflammatory and should
not have been admitted. The Commonwealth introduced, through the
testimony of Detective Richard Radwanski, a letter that Mr.
Goodman had written to Martin. In the letter, Goodman mentioned
his regular attendance of church services, his health problems,
and his concern for his own mortality. He also expressed
confidence, support and concern for Martin. Testimony was heard
from the victim's daughter, who responded affirmatively to the
prosecutor's question regarding whether she had been concerned for
her father because he lived alone and would be unable to seek
assistance if he was ever injured. Additionally, a photographer
from a local newspaper testified that he had photographed the
victim's home for an article on distinctive homes, and several of
these photographs were admitted into evidence. Appellants claim
that all of this evidence not only was irrelevant, but also was
prejudicial because it was calculated to generate sympathy for the
victim and his family during both the guilt and penalty phases of
trial.
Contrary to Appellants' assertion, all of the challenged evidence
was relevant to issues that were before the jury. See generally
Commonwealth v. LaCava, 542 Pa. 160, 174, 666 A.2d 221, 227
(1995)(stating that “[e]vidence is considered relevant if it
logically tends to establish a material fact in the case, tends to
make the fact at issue more or less probable, or supports a
reasonable inference or presumption regarding the existence of a
material fact”). Given that there were no signs of forced entry
into Mr. Goodman's home, the inference arose that the murder had
been committed by someone who was acquainted with him and either
had his own key or had been voluntarily admitted. Thus, the
letter was properly admitted to establish that Martin had a prior
relationship with Goodman. The testimony of the daughter was
probative of the fact that Goodman resided alone. Finally, the
photographs and accompanying testimony of the photographer were
relevant because the pictures depicted the vase that Martin used
to strike Goodman, as well as a hutch from which, according to the
testimony of Goodman's daughter, the defendants could have
obtained the duct tape that they used to bind Goodman. Moreover,
the trial court did not abuse its discretion in determining that
the potential prejudice about which Appellants complain, namely
the effect of sympathetic glimpses of Goodman's character and life
which the jury could have gleaned from the evidence, was
outweighed by the probative value of these proofs.
Next, Martin contends that he is entitled to a new trial because
his incriminating statements that were admitted at trial had been
obtained after he had invoked his Fifth Amendment right to counsel
and, for that reason, should have been suppressed.
Martin claims that at the time of his arrest in Arizona, he was
approached by federal agents and was given Miranda warnings. He
asserts that at that time, he indicated that he did not wish to
speak to anyone until he had spoken with an attorney, and the
interview was terminated. However, he alleges that later that
same day, he agreed to speak with an agent about the offenses, and
after again being provided with additional Miranda warnings, he
admitted to possessing the victim's credit card and stated that he
had obtained it three weeks previously in Palmyra, Pennsylvania.
Martin now points to this alleged statement, as well as the
statements that he made to the county detectives and the
corrections officer, in arguing that his constitutional rights
were violated.
It is true that where a defendant specifically invokes his Fifth
Amendment right to have counsel present during interrogation by
law enforcement officials, the government may not initiate
subsequent interrogation without counsel's presence, even if the
accused agrees to waive his rights.4 See Commonwealth v.
Santiago, 528 Pa. 516, 522, 599 A.2d 200, 202-03 (1991). The
defendant, however, is required to establish that he did indeed
invoke his Fifth Amendment right to counsel. Commonwealth v. Marinelli, 547 Pa. 294, 319-20, 690 A.2d 203, 216 (1997) (finding
no error in the suppression court's rejection of an appellant's
claim that his Fifth Amendment right to counsel was violated,
where nothing credible in the record suggested that the appellant
had invoked such right), cert. denied, 523 U.S. 1024, 118 S.Ct.
1309, 140 L.Ed.2d 473 (1998).
In this case, the transcript from the suppression hearing and the
trial record do not contain any evidence that Martin invoked his
right to counsel and privilege against self-incrimination; nor is
there support in the record for Martin's account of the
circumstances under which he gave an incriminating statement to
the federal agent. Accordingly, Martin has failed to establish a
violation of his Fifth Amendment rights. See generally Marinelli,
547 Pa. at 320, 690 A.2d at 216.
Moreover, with respect to the statement given to the detectives,
which is the only statement that Martin challenged in his
suppression motion, Martin was fully advised of his rights. The
record from the suppression hearing indicates that he was given
Miranda warnings and was provided with a waiver form. After
reading the form and certifying that he understood his rights and
wished to waive them, Martin signed the form and gave his
incriminating statement to the detectives. We perceive nothing
improper concerning the circumstances under which this statement
was given. Accordingly, the trial court did not abuse its
discretion in denying Martin's motion to suppress and in admitting
the statement at trial.
With respect to the statement given to the corrections officer
concerning the killing, the record indicates that it was Martin
who initiated the conversation. It is well settled that a
gratuitous utterance, unsolicited by the government, is
admissible, and that Miranda warnings are unnecessary under such
circumstances. Commonwealth v. Abdul-Salaam, 544 Pa. 514, 533,
678 A.2d 342, 351 (1996), cert. denied, 520 U.S. 1157, 117 S.Ct.
1337, 137 L.Ed.2d 496 (1997). Therefore, this statement was
validly obtained and was admissible.
King individually claims that the trial court abused its
discretion by admitting a variety of irrelevant, inadmissible and
prejudicial evidence against her at trial. Specifically, King
asserts that both the Commonwealth and the trial court improperly
vouched for the credibility of prosecution witness Barbara Charles
by stating that she was the wife of the district attorney. King
further asserts that the admission of an application that she
filed for federal assistance, as well as testimony concerning the
fact that she checked into a local motel as “Anna” King on
September 15, 1993 with another party, stigmatized her as a
promiscuous person who lived off public assistance. King also
contends that the Commonwealth's cross-examination of her
improperly focused on matters that were irrelevant and collateral,
and that the testimony of certain witnesses who were called by the
Commonwealth to rebut her own testimony, in particular concerning
her marriage to Carl William King, was collateral and prejudicial.
All of King's claims concerning these evidentiary issues are meritless. The testimony of Barbara Charles was presented to
authenticate King's signature on the application for federal
assistance, which was included in a list of King's handwriting
exemplars that were compared to the signatures on the checks drawn
on Goodman's account. Mrs. Charles was the caseworker who had
accepted King's application. At no time during Mrs. Charles'
testimony did she attempt to cast King in a negative light because
of the fact that she had applied for assistance; rather, Mrs.
Charles simply related the information contained within the
application and verified that King was the person who had signed
it. Furthermore, the comments made by the trial court and the
prosecutor concerning the fact that Mrs. Charles happened to be
the district attorney's wife were merely passing references that
were not seized upon by the Commonwealth in order to bolster her
veracity.
With respect to the testimony concerning King's use of the alias
“Anna King” when she checked into a motel, this evidence was
relevant in light of the facts that King had used her real name
when she went to meet Martin at the prison, and that the motel was
within close proximity to the prison. Thus, King's use of an
alias was probative of her knowledge that Martin would be
improperly absent from prison and of her desire to facilitate his
escape.
Finally, the testimony of King elicited by the Commonwealth on
cross-examination, as well as the testimony of the witnesses
called to rebut King, was not improper. During King's direct
examination, defense counsel played King's tape-recorded statement
to the Lebanon County detectives, as a predicate to King's defense
of duress. In that statement, King had asserted that she was
married to Martin and that he was the father of her son.
Therefore, it was proper for the Commonwealth to impeach King's
credibility on cross-examination by questioning her concerning the
fact that she was legally married to Carl William King, who was
listed on her son's birth certificate as the child's father.
Several of the Commonwealth's rebuttal witnesses also testified to
this fact. Additionally, King challenges the testimony of a
prison guard concerning King's reputation as an outspoken leader
and King's alleged comments concerning the sentence she would
receive if Martin pled guilty. Such testimony was a relevant and
appropriate rebuttal of King's defense, in which she had portrayed
herself as a passive companion who had been coerced into
participating in the robbery and murder.
Because the evidence complained of was relevant and the trial
court appropriately exercised its discretion in determining that
its probative value outweighed any prejudicial effect, King is due
no relief.
PENALTY PHASE
In their first argument concerning the penalty phase of trial,
Appellants contend that they were denied an impartial sentencing
jury, because the trial court failed to issue an instruction
advising jurors that they were permitted to consider feelings of
sympathy and mercy for Appellants in connection with the return of
sentences. Appellants essentially acknowledge that such an
instruction is not generally required under Pennsylvania
jurisprudence; 5 however, they argue that the instruction was
necessary in this case to cure misleading inferences that the jury
could draw from “anti-sympathy” references made during voir dire.6
Appellants contend that the jurors' affirmative responses to voir
dire inquiries probing their ability to eschew sympathy and render
a decision based upon the evidence support the inference that the
jury was incapable of considering and giving full effect to the
mitigating evidence and making an appropriate penalty
determination. Based upon such an inference, Appellants ask that
we find that the sentences of death are infirm under the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution, as well as under Article I, Sections 9 and 13 of the
Pennsylvania Constitution.
Appellants cite Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct.
869, 71 L.Ed.2d 1 (1982), and Morgan v. Illinois, 504 U.S. 719,
112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), in support of their
federal constitutional claims. Lockett and Eddings, however,
stand only for the proposition that a state may not bar relevant
mitigating evidence from being presented and considered during the
penalty phase of a capital trial. See Saffle v. Parks, 494 U.S.
484, 490, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990). Morgan
stands for the proposition that any juror to whom mitigating
factors are irrelevant should be disqualified for cause, as such
juror has formed an opinion concerning the merits of the case
without basis in the evidence developed at trial. See Morgan,
504 U.S. at 738-39, 112 S.Ct. at 2235.
The United States Supreme Court, however, has made clear that
general anti-sympathy instructions implicate neither of these
concerns and, further, such instructions in general are not
prohibited by the federal Constitution. See Saffle, 494 U.S. at
486, 110 S.Ct. at 1259 (stating that a constitutional rule
prohibiting anti-sympathy instructions “is not dictated by our
prior cases and, were it to be adopted, it would contravene
well-considered precedents”). In Saffle, an Oklahoma trial court
included among its jury instructions in the penalty phase of a
capital case an admonition that the jury was to avoid the
influence of sympathy.7 The appellant contended that the
anti-sympathy instruction ran afoul of Lockett and Eddings,
because jurors who might otherwise have reacted sympathetically to
mitigating evidence might have interpreted the instruction as
barring them from considering that evidence altogether. In
rejecting this argument, the Court distinguished the factors the
jury must be permitted to consider from how the jury may be guided
in considering and weighing those factors in deciding the
sentence:
Th[e appellant's] argument misapprehends the distinction between
allowing the jury to consider mitigating evidence and guiding
their consideration. It is no doubt constitutionally
permissible, if not constitutionally required, for the State to
insist that “the individualized assessment of the appropriateness
of the death penalty [be] a moral inquiry into the culpability of
the defendant, and not an emotional response to the mitigating
evidence.” Whether a juror feels sympathy for a capital
defendant is more likely to depend on that juror's own emotions
than on the actual evidence regarding the crime and the defendant.
It would be very difficult to reconcile a rule allowing the fate
of a defendant to turn on the vagaries of particular jurors'
emotional sensitivities with our longstanding recognition that,
above all, capital sentencing must be reliable, accurate, and
nonarbitrary. At the very least, nothing in Lockett and Eddings
prevents the State from attempting to ensure reliability and
nonarbitrariness by requiring that the jury consider and give
effect to the defendant's mitigating evidence in the form of a
“reasoned moral response,” rather than an emotional one. The
State must not cut off full and fair consideration of mitigating
evidence; but it need not grant the jury the choice to make the
sentencing decision according to its own whims or caprice.
Saffle, 494 U.S. at 493, 110 S.Ct. at 1262-63 (citations omitted;
emphasis in original).
Our own precedent has developed along similar lines. In
Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (1985), cert.
denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987), this
Court addressed a claim that the trial court erred in its
instruction to the sentencing jury to disregard sympathy in
reaching its sentencing decision. The Court concluded that where
the trial court had properly instructed the jury concerning the
broad mitigation provision at Section 9711(e)(8), 42 Pa.C.S.
§9711(e)(8), it had satisfied all pertinent constitutional
requirements. Id. at 80-81, 501 A.2d at 207; see also
Commonwealth v. Rainey, 540 Pa. 220, 234-35, 656 A.2d 1326, 1334
(holding that where trial court instructed jury on “catchall”
provision of Section 9711(e)(8) and informed jury that its verdict
was to be reached by weighing aggravating and mitigating
circumstances against each other, such instruction was correct and
nothing further was required), cert. denied, 516 U.S. 1008, 116
S.Ct. 562, 133 L.Ed.2d 488 (1995).
In light of Saffle and Lesko, Appellants' claims of
constitutional infirmity in their sentences fail. Preliminarily,
the complained-of statements in this case were in the form of
questions asked during voir dire and thus of less direct relevance
to the jury's ultimate sentencing decision than were the trial
courts' penalty instructions upheld in Saffle and Lesko.
Further, such questions did not suggest that the jurors eschew
sympathy specifically for Appellants, but rather, asked whether
they would be able to put sympathy aside altogether to decide the
case based upon the evidence presented.8 Most important, at the
outset and at the close of the penalty phase, the trial court
clearly instructed the jurors that they were required to consider
“any other evidence of mitigation concerning the character and
record of the defendant[s] and the circumstances of [their]
offense.” The trial court also instructed the jury concerning
the parties' respective burdens of proof and the proper weighing
of the aggravating circumstances against the mitigating
circumstances. Thus, read as a whole, the trial court's jury
instruction fully and fairly apprised the jury of its duties
concerning mitigating evidence. The questions asked during voir
dire did no more than probe whether the jurors could confine
themselves to the facts and the law and not be distracted by
matters unrelated to the evidence; such questions in no way
misled the jury into ignoring properly admitted evidence that
might have been favorable to Appellants. Thus, under both
federal and state precedents, the voir dire was proper, and no
relief is due Appellants on this issue.
Appellants further contend that the trial court improperly
permitted the jury to be “death-qualified” by permitting voir dire
to exclude those jurors who were opposed to the death penalty,
while at the same time it failed to require the jury to be
“life-qualified” by conducting an examination to determine whether
any jurors were partial to the death penalty. Appellants claim
that the resulting jury was, therefore, disproportionately
“pro-death.”
This Court has repeatedly held that the process of screening
prospective jurors to determine whether any has moral, religious
or ethical beliefs that would prevent him or her from voting for
the death penalty is consistent with the guarantees of a fair
trial. See, e.g., Marinelli, 547 Pa. at 320, 690 A.2d at 216
(citing Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90
L.Ed.2d 137 (1986)); Lambert, 529 Pa. at 335-36, 603 A.2d at 575.
Conversely, pursuant to the due process clause of the Fourteenth
Amendment to the United States Constitution, a defendant in a
capital case is permitted to pose questions during voir dire in
order to determine if any juror is incapable of returning a
verdict of life imprisonment. See Commonwealth v. Blount, 538
Pa. 156, 163, 647 A.2d 199, 203 (1994) (citing Morgan v. Illinois,
504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). While
permitted, however, life qualification questions are not required,
and the absence of such questions alone does not implicate error
on the part of the trial court. See Commonwealth v. Hardcastle,
549 Pa. 450, 455-56, 701 A.2d 541, 543 (1997). The scope of voir
dire remains a matter committed to the sound discretion of the
trial court, subject to review only for abuse of discretion. See
Commonwealth v. Fisher, 545 Pa. 233, 249, 681 A.2d 130, 137
(1996).
In this case, Appellants' trial attorneys were permitted to ask
general questions of prospective jurors, and the record does not
reflect the imposition of any restrictions that would have
precluded exploration of whether any of the jurors had fixed views
about the imposition of a life sentence. All jurors completed a
questionnaire that developed aspects of their individual beliefs
about the death penalty and inquired whether they would be able to
follow the judge's instructions regarding the applicable law. In
the absence of any specific complaint or showing of unwarranted
preclusion by the trial court, Appellants' claim fails.
Appellants next challenge certain portions of the trial court's
jury instructions concerning the imposition of a life sentence,
and the nature and use of aggravating and mitigating
circumstances.
A trial court has broad discretion in phrasing its instructions
to the jury and can choose its own wording so long as the law is
clearly, adequately and accurately presented to the jury for
consideration. Commonwealth v. Hawkins, 549 Pa. 352, 391, 701
A.2d 492, 511 (1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535,
140 L.Ed.2d 685 (1998). Furthermore, a trial court need not
accept counsel's wording for an instruction, as long as the
instruction given correctly reflects the law. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983). In reviewing a
challenged jury instruction, an appellate court must consider the
entire charge as a whole, not merely isolated fragments, to
ascertain whether the instruction fairly conveys the legal
principles at issue. Commonwealth v. Jones, 546 Pa. 161, 192, 683
A.2d 1181, 1196 (1996).
Appellants challenge the trial court's refusal to instruct the
jury that a defendant in a capital case who is sentenced to life
imprisonment is ineligible for parole. They claim that the
evidence concerning Martin's history of felony convictions, his
violation of his parole and work-release privileges, as well as
the fact that King was out of prison despite approximately twenty
prior convictions, implicitly raised the issue of future
dangerousness, thereby requiring an instruction that a life
sentence in a capital case means “life without parole.”
In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129
L.Ed.2d 133 (1994), the United States Supreme Court held that
where future dangerousness is at issue and a specific request is
made by a capital defendant, due process mandates that the jury be
informed what the term “life sentence” means. See also
Commonwealth v. Speight, 544 Pa. 451, 469, 677 A.2d 317, 326
(1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 967, 136 L.Ed.2d
852 (1997); Commonwealth v. Simmons, 541 Pa. 211, 250 n. 15, 662
A.2d 621, 640 n. 15 (1995), cert. denied, 516 U.S. 1128, 116 S.Ct.
945, 133 L.Ed.2d 870 (1996); Commonwealth v. Christy, 540 Pa.
192, 216, 656 A.2d 877, 889, cert. denied, 516 U.S. 872, 116 S.Ct.
194, 133 L.Ed.2d 130 (1995). Conversely, instructions detailing
the character of a life sentence are not required where future
dangerousness is not expressly implicated. See Commonwealth v.
May, 551 Pa. 286, 290-92, 710 A.2d 44, 47 (1998). The trial
court is not required to issue the instruction based upon
references to a defendant's past violent acts alone. Id.
Here, contrary to Appellants' assertion, the issue of future
dangerousness was not before the jury. At no time during either
phase of trial did the prosecutor argue or suggest that the death
penalty should be imposed because Appellants could potentially
hurt someone else in the manner in which they had harmed Mr.
Goodman. Nor did the prosecutor suggest that if a sentence of
life imprisonment were imposed, Appellants eventually could be
released on parole. The introduction of evidence concerning
Martin's escape from prison and parole violations during the guilt
phase of trial, and of Martin's prior felony convictions during
the penalty phase, was not the equivalent of raising the issue of
future dangerousness. See May, 551 Pa. at 290-92, 710 A.2d at
47. Accordingly, the trial court properly denied defense
counsel's request for an instruction on life imprisonment.9
Appellants also argue that the trial court improperly instructed
the jury concerning the nature and use of aggravating and
mitigating circumstances. During its opening instructions to the
jury, the trial court stated: “Loosely speaking, aggravating
circumstances are those things about this particular killing and
the killer which make a first degree murder case more terrible and
deserving of the death penalty, while mitigating circumstances are
those things which make the case less terrible and less deserving
of death.” In its closing instructions, the court reiterated,
“Aggravating and mitigating circumstances ․ are things that make a
first degree murder case either more terrible or less terrible.”
Appellants claim that such instructions improperly diverted the
jury's focus to the “terribleness” of the circumstances of the
case, rather than to Appellants' personal culpability.
This argument is meritless. Our review of the record reveals
that the instruction given by the trial court was nearly identical
to that set forth in Sections 15.2502E and F of the Pennsylvania
Suggested Standard Criminal Jury Instructions.10 Indeed, the word
“terrible,” of which Appellants complain, is specifically used in
the standard instructions concerning aggravating and mitigating
circumstances. Moreover, in addition to the general description
cited by Appellants, the trial court specifically explained to the
jury each mitigating circumstance claimed by each of Appellants.
See Commonwealth v. Saranchak, 544 Pa. 158, 175-76, 675 A.2d 268
(Pa.1996)(rejecting challenge to a penalty-phase instruction
describing aggravating and mitigating circumstances as “things
that make a first degree murder case more or less terrible” on the
basis that the trial court's entire instruction appropriately
explained the mitigating circumstances at issue), cert. denied,
519 U.S. 1061, 117 S.Ct. 695, 136 L.Ed.2d 617 (1997). The trial
court also instructed the jury concerning the relative burden of
proof with respect to both types of circumstances and explained
the meaning of the standards of reasonable doubt and preponderance
of the evidence. Thus, the trial court adequately and accurately
apprised the jury of its function in the penalty phase of the
proceedings.
Next, Appellants raise multiple issues connected with the jury's
determination that the killing of Mr. Goodman implicated the
aggravating circumstance of torture, 42 Pa.C.S. §9711(d)(8).
First, Appellants contend that the evidence was insufficient to
support the jury's finding of torture.
Although Section 9711(d)(8) is silent concerning specific intent
to torture, this Court has interpreted the statute as requiring
the existence of a specific intent to inflict pain and suffering,
separate and apart from the specific intent to kill. Commonwealth
v. Auker, 545 Pa. 521, 551, 681 A.2d 1305, 1321 (1996). In
elaborating on the requirement of a separate specific intent to
torture, this Court has stated that “[t]here must be an indication
that the killer was not satisfied with the killing alone.” Id.
Furthermore, “[i]mplicit in the definition of torture is the
concept that the pain and the suffering imposed upon the victim
was unnecessary, or more than needed to effectuate the demise of
the victim.” Chester, 526 Pa. at 607, 587 A.2d at 1381. Thus,
although in many homicide cases the victim suffers considerable
pain and anguish, the aggravating circumstance of torture is not
established unless the Commonwealth shows beyond a reasonable
doubt that the defendant “intended to inflict pain beyond that
which accompanied the intentional killing․.” Auker, 545 Pa. at
551, 681 A.2d at 1321.
In this case, Mr. Goodman was injured, bound and killed in a
cruel and progressive manner. Martin hit him over the head, then
taped his mouth, after which Appellants wrapped various materials
around his head, bound him in a manner such that his breathing was
further constricted as he struggled, and dragged him to the
basement where he died a lingering death. While Appellants would
have had the jury infer from the circumstances of the killing that
Goodman's suffering was merely an unintended collateral
consequence of their clumsy improvisation, in addressing arguments
as to the sufficiency of the evidence, we must view the evidence
in the light most favorable to the Commonwealth as the verdict
winner and draw all reasonable and proper inferences in
Commonwealth's favor. See Hardcastle, 519 Pa. at 246, 546 A.2d
at 1105. Here, Appellants chose a particularly heinous manner in
which to terrorize and murder Goodman, and the circumstances of
the killing provided sufficient evidence from which the jurors
could infer an intent on their part to torture.
Appellants also challenge certain evidence that was admitted in
support of the aggravating circumstance of torture.
Specifically, they contend that the trial court erred in
permitting the jury to view the videotape of Dr. Mihalikis'
testimony concerning Mr. Goodman's emotional state at the time of
the homicide, and that certain statements made by the pathologist
were inflammatory and prejudicial.
In questioning Dr. Mihalikis during the penalty phase, the
Commonwealth focused extensively upon Goodman's mental state.
For example, the Commonwealth explored the psychological effect of
the victim's hands being tied behind his back, eliciting from Dr.
Mihalikis a statement that Goodman would have experienced terror
because of the physical limitations and the resulting
impossibility of freeing himself. On further questioning, Dr.
Mihalikis went on to describe the physical sensations that Goodman
would have experienced during suffocation, noting that there would
have been a period of terror when he realized his impending death.
In response to further questions concerning what Goodman
experienced while he suffocated, Dr. Mihalikis reiterated that the
altercation, the binding and the wrappings were all “very, in fact
extremely, terrorizing,” and that Goodman experienced not so much
actual pain, but terror because he was not getting enough oxygen
and would eventually run out of air and die. The doctor stated,
“That's the kind of terror. He knows that if he doesn't get
free, he's going to die.” Finally, he concluded, “I have no
doubt that fear is probably a mild term ․ to have gone through
this kind of a confrontation, to have all these things on top of
you, to have the binding ․ it is not fear, it is terror with a
capital T.”
Near the conclusion of this testimony, the trial judge noted that
he “was not clear whether we need this doctor's testimony to tell
us that someone who knows of impending death undergoes periods of
fear and terror.” However, the videotape of the doctor's
testimony was admitted into evidence during the penalty phase,
over defense counsels' objection.
“Expert testimony is permitted as an aid to the jury when the
subject matter is distinctly related to a science, skill, or
occupation beyond the knowledge or experience of the average
layman.” Auker, 545 Pa. at 543, 681 A.2d at 1317 (citing
Commonwealth v. O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32
(1976)). Where the issue involves a matter of common knowledge,
expert testimony is inadmissible. O'Searo, 466 Pa. at 229, 352
A.2d at 32. Here, there certainly was no need for an expert to
testify to the fear that Mr. Goodman felt in his confrontation
with Martin and King-the fact that a human being would experience
fear and terror as he is brutalized and suffocated is so basic
that expert opinion is unnecessary to assist the jury.
Therefore, this is not a subject upon which expert testimony is
admissible.
The Commonwealth asserts, however, in the alternative, that Dr.
Mihalikis' testimony was admissible as lay opinion testimony. We
reject this argument. Dr. Mihalikis was presented by the
Commonwealth as an expert witness. The Commonwealth obviously
intended for the jury to view his testimony as being cloaked with
the knowledge and skill possessed by persons in his areas of
expertise. The testimony was not presented in a manner such that
Dr. Mihalikis could step out of his role as expert, depending upon
the intended focus of the Commonwealth's proof, nor was the jury
so instructed. Accordingly, the testimony concerning the
victim's emotional state was improperly admitted.
Finally, the Commonwealth asserts that, if the admission of Dr. Mihalikis' testimony was error, such error was harmless for the
very reason that the testimony was not properly admitted, namely,
that the pathologist's commentary merely reflected the jury's
existing, common understanding concerning Mr. Goodman's mental
state at the time of the killing. However, improper expert
testimony may place undue emphasis upon common inferences and
explanations. See Collins v. Zediker, 421 Pa. 52, 55, 218 A.2d
776, 778 (1966)(stating that “[j]urors are humans and are
impressed by scientific talk even though, upon profound
reflection, they could realize that in the particular field under
discussion they are as much at home as the scientist”). Here,
particularly given the extensive focus of the district attorney
upon Dr. Mihalikis' assessment concerning Goodman's mental state,
we cannot conclude that the trial court's error in permitting the
testimony was harmless to the jury's determination of the
aggravating circumstance of torture. Accordingly, the trial
court erred in permitting the jury to consider this aggravator in
its penalty determination.11
Martin also challenges the admission of his prior convictions for
burglary and criminal trespass, which the Commonwealth offered
into evidence to establish the aggravating circumstance of a
significant history of felony convictions involving the threat or
use of violence to the person. See 42 Pa.C.S. §9711(d)(9). He
contends that, in order to establish a significant history of
violent offenses, the Commonwealth must offer evidence of crimes
involving the actual use or the actual threat of violence.
Martin argues that the offenses of burglary and criminal trespass
are not such crimes and, since the Commonwealth offered the fact
of five burglary and five criminal trespass convictions alone,12
the evidence was insufficient to establish the Section 9711(d)(9)
aggravating circumstance.
This Court has previously had several occasions to consider
whether the offense of burglary constitutes a crime of violence
for purposes of Section 9711(d)(9). Initially, in Commonwealth
v. Christy, 511 Pa. 490, 508, 515 A.2d 832, 841 (1986), cert.
denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987),
Justice Papadakos, writing for the Court, stated that, for a
felony to be includable under Section 9711(d)(9), the Commonwealth
was required to present evidence that the defendant actually
threatened another with violence or actually used violence on
another.13 However, in Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d
553 (1988), Justice Papadakos, again writing for the majority,
concluded that the portion of Christy in which the offense of
burglary by itself was excluded as a crime of violence was dictum,
and that “the crime of burglary has always been and continues to
be viewed as a crime involving the use or threat of violence to
the person.” Id. at 15, 549 A.2d at 559. The principal reason
offered for this holding was the observation that “[e]very ․
burglar knows when he attempts to commit his crime that he is
inviting dangerous resistance․. It is this threat of violence to
persons that has prompted the Legislature into expanding the
definition of burglary to include all those entries without
privilege into places where people might be present.” Id. at 14,
549 A.2d at 559.
This Court's subsequent holdings have consistently followed Rolan.
See Commonwealth v. Collins, 549 Pa. 593, 606, 702 A.2d 540, 546
(1997)(holding that the defendant's juvenile convictions for
burglary were crimes of violence for purposes of the Section
9711(d)(9) aggravating circumstance); Commonwealth v. Bracey, 541
Pa. 322, 349 n. 15, 662 A.2d 1062, 1075 n. 15 (1995)(relying upon
Rolan to uphold a sentence of death where the jury found the
aggravating circumstance of Section 9711(d)(9) based upon
proffered evidence of two burglary convictions), cert. denied, 517
U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996); Commonwealth
v. Rivers, 537 Pa. 394, 415, 644 A.2d 710, 720 (1994) (citing
Rolan for the principle that burglary involves the inherent threat
of violence), cert. denied, 516 U.S. 1175, 116 S.Ct. 1270, 134
L.Ed.2d 217 (1996); Commonwealth v. Baker, 531 Pa. 541, 568, 614
A.2d 663, 676 (1992) (same); Commonwealth v. Thomas, 522 Pa. 256,
276, 561 A.2d 699, 709 (1989)(applying Rolan and concluding that a
criminal trespass conviction is admissible as evidence of a crime
of violence for purposes of Section 9711(d)(9)).14 In accordance
with these decisions, the evidence in this case was sufficient to
support the jury's finding of the aggravating circumstance of
Section 9711(d)(9).
Next, Appellants make a number of arguments concerning the jury's
penalty phase consideration of certain evidence. King claims
that evidence of her prior convictions was improperly admitted in
rebuttal of the mitigating evidence that she presented concerning
her family relationships. She also claims that certain evidence,
such as the photographs of the victim's body, the testimony
concerning the victim's personal life, and the impeachment
evidence concerning the parentage of her child, was extraneous to
the aggravating circumstances identified at Section 9711(d), which
are the only proper considerations militating in favor of the
imposition of a death penalty. As such, King claims that this
evidence was improperly incorporated into the penalty phase of
trial. Lastly, both Appellants claim that the jury failed to
find and give effect to certain mitigating factors that had been
established by a preponderance of the evidence.15
All of these arguments are meritless. None of the complained-of
evidence was improperly admitted or significantly prejudicial, and
the trial judge issued adequate instructions informing the jury as
to the range of proper considerations in sentencing. There is no
basis, then, to support Appellants' contentions that the jury
strayed beyond such range in the penalty phase. See generally
Baker, 531 Pa. at 559, 614 A.2d at 672 (stating that the law
presumes that juries follow the trial court's instructions as to
the applicable law). Furthermore, the weight to be accorded the
aggravating and mitigating factors presented is a function that is
reserved solely for the jury. Commonwealth v. Banks, 513 Pa.
318, 354, 521 A.2d 1, 19, cert. denied, 484 U.S. 873, 108 S.Ct.
211, 98 L.Ed.2d 162 (1987). Thus, we will not disturb the
conclusions that the jury reached concerning Appellants' evidence
of mitigating circumstances.
King also contends that certain comments made by the prosecutor
during closing argument in the penalty phase were improper.
Specifically, King contends that the prosecutor improperly vouched
for the propriety of a death sentence, commented upon King's
failure to express remorse, and suggested that the death penalty
should be imposed in this case to counteract a societal trend away
from personal responsibility.
Challenged prosecutorial comments must be considered in the
context in which they were made. Commonwealth v. Morales, 549 Pa.
400, 424, 701 A.2d 516, 528 (1997). “[A] prosecutor's statements
to the jury will not be considered improper unless their
unavoidable effect 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. Travaglia, 541 Pa. 108, 134, 661 A.2d 352, 365
(1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d
858 (1996). Furthermore, during the penalty phase, where the
presumption of innocence is no longer applicable, the prosecutor
is permitted even greater latitude in presenting argument. Id.
Our review of the record reveals nothing improper in the
prosecutor's closing remarks. It is axiomatic that a prosecutor
may argue in favor of the death penalty, and must be afforded
reasonable latitude in arguing his position to the jury.
Commonwealth v. Jones, 542 Pa. 464, 515, 668 A.2d 491, 516 (1995),
cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996).
Taken in context, the prosecutor's remarks that “[i]t is not easy
for me to stand here and request a death penalty” and “I suggest
to you respectfully that if there is a case in where the death
penalty is appropriate, it is this one” were nothing more than a
reflection on the somberness of the occasion and an argument for
the appropriateness of the death penalty, both of which are
permissible. See Commonwealth v. Sneed, 514 Pa. 597, 613, 526
A.2d 749, 757 (1987). With respect to the prosecutor's
contrasting King's display of tears when discussing her own
background with her emotionless description of Goodman's murder,
we note that this Court has consistently recognized that a
prosecutor may comment upon a defendant's lack of remorse. See
Hill, 542 Pa. at 314, 666 A.2d at 653. The prosecutor's remarks
that individual responsibility for one's actions is paramount in
our society were appropriate, given the fact that King had
presented evidence throughout the trial that her level of
participation and responsibility regarding the murder was minimal.
It is permissible for a prosecutor to argue in response to an
anticipated defense position. Marrero, 546 Pa. at 611, 687 A.2d
at 1109.
Finally, Appellants argue that the cumulative effect of alleged
errors during the guilt and penalty phases of trial undermines the
integrity of the convictions and sentences. Such arguments
generally have been rejected in favor of an individualized
assessment of the merits of claimed trial errors. See generally
Commonwealth v. Murphy, 540 Pa. 318, 336 n. 6, 657 A.2d 927, 936
n. 6 (1995)(citing Commonwealth v. Williams, 532 Pa. 265, 615 A.2d
716 (1992)). Moreover, in this case, we have reviewed each of
Appellants' claims of error and have dismissed each as meritless,
save one, namely, the trial court's error in submission of the
aggravating circumstance of torture to the jury.
INDEPENDENT REVIEW OF THE DEATH SENTENCE
We must affirm the judgment of sentence unless we determine that:
(i) the sentence of death was the product of passion, prejudice or
any other arbitrary factor;
(ii) the evidence fails to support the finding of at least one
aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases, considering both the
circumstances of the crime and the character and record of the
defendant.
42 Pa.C.S. §9711(h)(3).16
Upon review of the record, we conclude that the sentence imposed
in this case was not the product of passion, prejudice or any
other arbitrary factor, but rather was based upon the evidence
that Appellants killed the victim with premeditation during the
robbery.
Although we have concluded that the aggravating circumstance of
torture was improperly before the jury, the remaining aggravating
circumstance found by the jury with respect to both defendants,
commission of the homicide during the perpetration of a robbery,
was indisputably proven. Additionally, with respect to Martin,
we have sustained the jury's determination as to the aggravating
circumstance of a significant history of felony convictions
involving the use or threat of violence. In this situation,
where one or more aggravating circumstances remain and the jury
has found no mitigating circumstances, the death sentences are to
be affirmed. See Christy, 511 Pa. at 510, 515 A.2d at 842; see
also Bracey, 541 Pa. at 349 n. 15, 662 A.2d at 1075 n. 15 (citing
Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704 (1992), for the
proposition that invalidation of one aggravating circumstance does
not warrant reversal where an additional aggravating circumstance
has been validly found by the jury and no mitigating circumstances
have been found).
Finally, having reviewed Appellants' sentences in light of the
sentencing data compiled and monitored by the Administrative
Office of the Pennsylvania Courts, we conclude that the sentences
of death imposed upon Appellants are not excessive or
disproportionate to the penalty imposed in similar cases. See
Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08,
cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984).
Accordingly, we affirm the verdicts and sentences of death imposed
upon Bradley Martin and Carolyn King by the Court of Common Pleas
of Lebanon County.17
While I join Mr. Justice Saylor's majority opinion, I write
separately to clarify my position on defining “life imprisonment”
in capital cases. In terms of appellant's argument that he was
entitled to an instruction on the meaning of “life imprisonment,”
I agree with Mr. Justice Saylor's disposition of the issue since
it is consistent with precedent.
I would, however, require a Simmons instruction in every capital
case. Mr. Justice Nigro cogently explained the rationale for
such a rule in his concurring opinion in Commonwealth v. Clark,
551 Pa. 258, 710 A.2d 31, 43-44 (Pa.1998)(Nigro, J., concurring),
which I joined:
However, I would suggest that the better practice and policy is to
require trial courts to give a Simmons instruction in all death
penalty proceedings, regardless of whether counsel raises the
issue of a defendant's potential future dangerousness during the
penalty phase.
Under this practice, a jury considering the death penalty would
automatically be informed, before deliberations began, of what
life imprisonment actually means in Pennsylvania at the time of
the instruction. In my opinion, a standard Simmons instruction
would, in the first instance, serve to clarify that issue for the
jury. For example, since commutation is, at this time, a
possibility in Pennsylvania for those serving life sentences, and
therefore proper for the jury's consideration, trial judges giving
a Simmons instruction could be equipped with statistical
information relating to the percentage of life sentences which had
been commuted within the last several years. Not only would the
jury be aided by knowing those percentages during their penalty
deliberations, but the defendant should be entitled to have the
jury aware of what statistical possibility exists that a life
sentence imposed on him would result in commutation. Moreover, I
can see no prejudice that the Commonwealth would suffer if every
defendant facing a sentence of death received a Simmons jury
instruction explaining, as thoroughly as possible, what “life
imprisonment” means in Pennsylvania.
(Footnotes omitted). I think it is self-evident that every juror
in the penalty phase of a capital case is always concerned with
the issue of future dangerousness.
I join the majority opinion except for the discussion of whether
the evidence was sufficient to support the jury's finding of the
aggravating circumstance of torture. Maj. Opinion at 780-781.
As the majority does with the Appellant's claims of error
regarding the trial court's instructions, see footnote 10, I
believe it is unnecessary to address this issue in light of the
conclusion that “the trial court erred in permitting the jury to
consider this aggravator in its penalty determination.” Id. at
782.
I agree with the majority that the verdicts and sentences of death
should be upheld as to both appellants. I write separately
because I disagree with the majority's conclusion that the
aggravating circumstance of torture was not properly placed before
the jury. Although Dr. Mihalakis' expert testimony on the issue
of whether the victim experienced fear and terror while being
suffocated was improperly admitted, I would find this error to be
harmless beyond a reasonable doubt.
Here, the trial court erred by allowing Dr. Mihalakis to proffer
expert testimony on a matter of common knowledge. By tying the
victim's hands behind his back and slowly suffocating him until
the life finally ebbed out of him, appellants subjected the victim
to a degree of terror and fear in the waning moments of his life
which a juror does not require an expert to explain. In other
words, Dr. Mihalakis did not tell the jurors anything which they
did not already know by telling them that a human being would
experience fear and terror as he is brutalized and suffocated.
However, the same fact which renders the admission of Dr.
Mihalakis' testimony erroneous also renders such admission
harmless. While an expert should generally not be permitted to
testify as to a matter of common knowledge, allowing an expert to
testify about truths as transparent as those at issue here should
not be deemed prejudicial. To the extent that Collins v. Zediker,
421 Pa. 52, 218 A.2d 776 (1966) holds to the contrary, I believe
that case should be overruled.
Thus, I disagree with the majority's conclusion that, due to the
improper admission of Dr. Mihalakis' testimony, the aggravating
circumstance of torture was not properly before the jury. I
concur with the remainder of the majority's reasoning and with the
result reached thereunder.
I join the majority, and write separately only to reiterate the
position I expressed in Commonwealth v. Chandler, No. 111 Capital
Appeal Docket, ---Pa. ----, 721 A.2d 1040, 1998 WL 807934,
regarding the “life means life” issue. As I stated in Chandler:
[I]n cases where Simmons would require a “life means life”
instruction, I agree with Chief Justice Flaherty that the court
should instruct the jury that the defendant's sentence could be
commuted. Where future dangerousness is at issue, the
impossibility of parole and the possibility of commutation are
equally relevant, so the court should inform the jury of both
contingencies.
In this case, I agree with the majority that future dangerousness
was not at issue. Accordingly, I agree that the trial court
properly declined to give a “life means life” instruction.
FOOTNOTES
1. Mr. Goodman's daughter later testified at trial that her
father was attracted to young men, and an acquaintance of Martin's
testified that she had seen Martin in Goodman's home on previous
occasions, being openly affectionate with Goodman.
2. Like a number of Appellants' claims of trial error, this issue
was not properly preserved for review. King concedes that her
counsel consented to the consolidation of offenses, and Martin's
counsel neither objected nor consented on the record. Moreover,
apparently as a consequence of the continued involvement of trial
counsel in these appeals, neither of the Appellants has framed his
or her challenge to the propriety of consolidation in terms of
counsel's ineffectiveness, which would ordinarily be required to
preserve the opportunity for review. See Commonwealth v.
Griffin, 537 Pa. 447, 454, 644 A.2d 1167, 1170 (1994). However,
the relaxed waiver standard employed in capital cases on direct
review permits consideration of this issue on its merits. See
Commonwealth v. Gibson, 547 Pa. 71, 91 n. 19, 688 A.2d 1152, 1162
n. 19, cert. denied, 522 U.S. 948, 118 S.Ct. 364, 139 L.Ed.2d 284
(1997); Zettlemoyer, 500 Pa. at 50 n. 19, 454 A.2d at 955 n. 19.
3. Martin further claims that consolidation of the two
indictments improperly injected his prior offenses, which do not
fall within any of the enumerated statutory aggravating factors,
into the penalty phase of the proceedings. Given the trial
court's specific instructions defining the appropriate
considerations for the jury in sentencing, see infra, and Martin's
failure to demonstrate any specific prejudice as a result of the
consolidation, he is entitled to no relief on such claim.
4. In addition to the Sixth Amendment right to counsel, the
United States Supreme Court has held that a separate right to
counsel is encompassed in the Fifth Amendment guarantee that “[n]o
person ․ shall be compelled in any criminal case to be a witness
against himself.” See McNeil v. Wisconsin, 501 U.S. 171, 177-78,
111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991). The United States
Supreme Court described the Fifth Amendment right to counsel as
one of several “prophylactic rights designed to counteract the
‘inherently compelling pressures' of custodial interrogation.”
Id. at 176-77, 111 S.Ct. at 2208 (citing Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).
5. This Court has held that absolute “mercy verdicts” are
prohibited. See Commonwealth v. Henry, 524 Pa. 135, 159-60, 569
A.2d 929, 941 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338,
113 L.Ed.2d 269 (1991). Further, in Commonwealth v. Hill, 542
Pa. 291, 666 A.2d 642 (1995), cert. denied, 517 U.S. 1235, 116
S.Ct. 1880, 135 L.Ed.2d 175 (1996), the Court rejected the
argument that a sentencing jury must be instructed that it can
dispense mercy if it so chooses, noting that the “[a]ppellant 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 this case. That is all that is
constitutionally required.” Id. at 311, 666 A.2d at 652 (quoting
Commonwealth v. Young, 536 Pa. 57, 76, 637 A.2d 1313, 1322
(1993)).
6. For example, prospective jurors were presented with a
questionnaire that included the following question: “Would you
have any problems putting aside any sympathy you might feel for
anyone involved in the trial and deciding the case on the evidence
alone?” All of the prospective jurors responded in the negative,
and eleven of the jurors who were empanelled specifically
indicated during individual voir dire that they would not give
effect to feelings of sympathy in reaching their verdict,
including feelings of sympathy arising from Appellants' family
situations. Appellants also complain about similar questions
asked by the district attorney during individual voir dire.
7. The relevant instruction was as follows:You are the judges of
the facts. The importance and worth of the evidence is for you
to determine. You must avoid any influence of sympathy,
sentiment, passion, prejudice, or other arbitrary factor when
imposing sentence. You should discharge your duties as jurors
impartially, conscientiously, and faithfully under your oaths and
return such verdict as the evidence warrants when measured by
these Instructions.Saffle, 494 U.S. at 487, 110 S.Ct. at 1259.
8. As noted by the United States Supreme Court, a jury's reliance
upon extraneous emotional factors “would be far more likely to
turn the jury against a capital defendant than for him.”
California v. Brown, 479 U.S. 538, 543, 107 S.Ct. 837, 840, 93
L.Ed.2d 934 (1987).
9. Appellants also argue that the trial court's refusal to
instruct the jury concerning the meaning of life imprisonment
prevented the jury from considering and giving full effect to
relevant mitigating evidence, presented the jury with a false
choice of sentencing options, denied Appellants the heightened
procedural safeguards required in capital cases, produced an
arbitrary and capricious sentence, and violated the Eighth and
Fourteenth Amendments to the United States Constitution, as well
as Article I, Sections 9 and 13 of the Pennsylvania Constitution.
In light of our previous decisions in this area, cited above,
all of these arguments are rejected.
10. While the Court does not adopt or approve these standard
instructions in the first instance, we have lent our approval to
certain specific instructions on a case-by-case basis and have
often considered the trial court's reliance upon the standard
language as an aid in our review. See generally Commonwealth v.
Tilley, 528 Pa. 125, 141, 595 A.2d 575, 583 (1991).
11. Appellants also challenge the trial court's jury instruction
concerning torture, contending that the phrase “heinous, atrocious
or cruel,” used by the trial court to define torture, is
unconstitutionally vague. Additionally, Appellants argue that
when the jury asked for clarification of the meaning of intent to
torture, the trial court's explanation, which employed the phrase
“he or she or both of them,” improperly suggested that a finding
of intent to torture on the part of one defendant would suffice to
establish the requisite intent on the part of both defendants.
In light of our holding that the aggravating circumstance of
torture was improperly before the jury, it is not necessary to
address these issues.
12. The evidence was introduced through the Chief of the North
Londonderry Township Police and the Lebanon County First Deputy
Clerk of Courts, who both testified only that Martin had a prior
record of such convictions. On cross-examination of the Chief of
Police, the defense elicited the fact that no occupants were home
at the time Martin committed these offenses.
13. In the majority's view in Christy, the language of Section
9711(d)(9) concerning the “threat of” violence was not the
equivalent of the “potential for” violence. The majority noted
that force was not an element of burglary and that every felony
carries with it the potential for violence if the perpetrator is
caught in the act. Accordingly, the majority concluded that
violence must actually be threatened or used during the commission
of the felony for such crime to be includable under subsection
(d)(9). See Christy, 511 Pa. at 507-08, 515 A.2d at 840-41.
14. The one exception is Commonwealth v. Rompilla, 539 Pa. 499,
653 A.2d 626 (1995), which discussed a claim of trial error in the
submission of the Commonwealth's evidence concerning the (d)(9)
aggravator with reference to the discussion set forth in the
Christy case. Notably, trial in the Rompilla case commenced
concurrent with the entry of this Court's decision in Rolan.
15. For example, Martin offered evidence that he was sexually
abused during his childhood, resulting in unfavorable personality
and behavioral changes that persisted and worsened despite
extensive counseling. King offered evidence that she also
experienced a difficult childhood, was physically and sexually
abused, and was the mother of several children.
16. By legislation enacted June 25, 1997, subsection (h)(3)(iii)
providing for proportionality review and a portion of subsection
(h)(4) that references such review were stricken from Section
9711(h). See Act of June 25, 1997, No. 28, §1 (Act 28),
effective immediately. However, this Court will continue to
undertake proportionality review in cases where the death sentence
was imposed prior to the effective date of Act 28. Commonwealth
v. Gribble, 550 Pa. 62, 89-91, 703 A.2d 426, 440 (1997).
17. Pursuant to Section 9711(i), 42 Pa.C.S., the Prothonotary is
directed to transmit the complete record of this case to the
Governor of Pennsylvania within ninety days.
SAYLOR, Justice.
Chief Justice FLAHERTY files a concurring opinion in which Justice
NIGRO joins. Justices ZAPPALA, CASTILLE and NEWMAN file concurring
opinions.