Over eight days at the turn of 1980, Michael Travaglia and John Lesko, both twenty-one, killed four people in western Pennsylvania. Peter Levato, forty-nine, was found shot in the woods near the Loyalhanna reservoir on December 29, 1979. Marlene Sue Newcomer, twenty-six, picked up hitchhikers after a New Year’s Eve party and was shot; her body was still in the back of the car while the two men went on to commit robberies in Indiana County. William Nicholls, thirty-two, a church organist from Mount Lebanon, was taken from a downtown Pittsburgh hotel and drowned in an Indiana County lake, bound and weighted. Around five in the morning on January 3, 1980, a rookie Apollo police officer, Leonard Miller, twenty-one, chased their car out of town and stopped it, and was shot as he walked up to it. Both men were arrested that day.
The two were convicted or pleaded guilty in all four killings, but it was Miller’s murder that a Westmoreland County jury punished with death in February 1981, and every one of these ten opinions is about that sentence or the convictions under it. They run from the Supreme Court of Pennsylvania’s 1983 decisions affirming both judgments to two long rulings in 2011, and they follow the men down separate paths. A federal appeals court vacated Lesko’s death sentence in 1991 and a new jury imposed death again in 1995, which the state Supreme Court upheld in 1998. Travaglia’s sentence was vacated in federal court as well, and the Superior Court opinions of 1998 and 2002 are the prosecution’s appeals from rulings in the resentencing that followed; a jury returned death again in 2005, and the 2011 opinion affirms it. The same year the court rejected Lesko’s claims for post-conviction relief in an opinion of forty thousand words, the longest document here.
Neither man was executed. Death warrants were signed for both of them repeatedly by three governors and stayed every time. Travaglia died of natural causes on death row at the state prison in Greene County on September 4, 2017, aged fifty-nine. In 2022 the federal appeals court in Philadelphia turned down Lesko’s request for a new trial and sentencing, one of the last appeals left to the man who by then had spent longer under a death sentence than anyone else in Pennsylvania.
The case has always been called “Kill for Thrill,” and the facts recited here come from the men themselves as much as from the prosecution: each blamed the other for the shooting of Peter Levato, and the courts set out both versions. The fifteen-year-old runaway who was with them in the hours before Miller died, and whose charges were dropped after he testified, is R.R. throughout, as he was a juvenile. D.M., who was handed the gun less than an hour before the arrests, J.H., the motorist who gave the three of them a ride, the robbery victim M.C., the juror A.S., the character witnesses R.G. and R.M., Lesko’s brother M.L., Travaglia’s father B.T. and the couple R.P. and E.P. who testified for him are all given initials. The victims, the police, the doctors who examined both men, the lawyers and the judges are named as the courts name them.
These are decisions of the Supreme Court and the Superior Court of Pennsylvania and are public records, free to reproduce. The text is the Caselaw Access Project’s and was not produced by OCR from any scan of ours, though its digitization of the older volumes left damage that we have printed as it stands: a passage of closing argument quoted in the 1983 opinion reads “promise^! the judge, Mrs. Ambrose, Mr. Bertani, Mr. McCorriiick.” The courts are not consistent about one victim’s name, writing Nicholls sixty-three times and Nichols ninety-five; Nicholls is the spelling of the contemporary reports and the one we use in our own words. Words broken across a line by the printed column, such as “Westmore-land” and “Le-vato,” have been closed where the same word appears unbroken elsewhere in the file, and nothing else has been altered.
Two killers acting together over a few days are usually counted as spree killers rather than serial killers, and these two are filed with the archive’s other multiple-victim pairs, not as an argument about which word fits. Ten opinions and some ninety-five thousand words make this a long page, and most of its length is the courts working through the same few questions again and again across thirty years: what the jury was told about the other killings, whether Lesko should have been allowed to speak, and what a jury deciding a sentence in 1995 or 2005 could hear about men convicted in 1981.
467 A.2d 288
COMMONWEALTH of Pennsylvania, Appellee, v. Michael J. TRAVAGLIA, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. John Charles LESKO, Appellant.
Supreme Court of Pennsylvania.
Argued March 10, 1983.
Decided Sept. 29, 1983.
Reargument Denied Dec. 14, 1983.
Rabe F. Marsh, III, Greensburg (Court-appointed), Welsh S. White, Pittsburgh, for appellant at No. 26.
Dante G. Bertani, Public Defender, Timothy J. McCormick, Asst. Public Defender, Greensburg, for appellant at No. 37.
John J. Driscoll, Dist. Atty., Timothy J. Geary, Asst. Dist. Atty., Greensburg, for appellee at No. 37.
Marion MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee at No. 26.
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDermott, hutchinson and zappala, jj.
[OPINION BY ZAPPALA, Justice. type=majority]
OPINION
ZAPPALA, Justice.
We are called upon to review convictions of first degree murder, for which the Appellants were sentenced to death. Pursuant to 42 Pa.C.S. § 9711(h), we examine the record for errors at trial, and to determine whether the sentence of death should be affirmed or vacated.
I. BACKGROUND
In the early morning hours of January 3, 1980, Apollo Police Officer Leonard Miller was killed by two bullets from a .38 caliber hand gun, after having stopped a silver-colored Lancia sports car, containing three men, which had several times sped past his position at the Apollo Stop-and-Go convenience store. Officer Miller was found lying on the highway by police officers who were responding to his radio request for assistance. His service revolver had been drawn, and all six rounds had been fired. Police investigation turned up the Lancia, abandoned, with the windows shattered and bullet holes in it. It was established that the automobile was registered to one William Nicholls of Pittsburgh who had recently disappeared.
Prior to the Miller homicide, state police had received evidence indicating that Appellant Travaglia may have been involved in a number of armed robberies and killings which had taken place in Pittsburgh and surrounding counties. Pursuant to their investigation, the state police had found a vehicle, owned by a homicide victim, abandoned near a motel where Travaglia and a man named D.M. had been staying.
Pittsburgh police located M. in the early evening hours of January 3, 1980 in the downtown area of Pittsburgh. While questioning him, they discovered a .38 caliber revolver on his person. M. told the police that Travaglia had given him the weapon and that he (Travaglia) and Appellant Lesko had at that time talked about “wasting a policeman.” M. then told police that both Appellants Lesko and Travaglia were staying in a room at the Edison Hotel in downtown Pittsburgh. The police proceeded immediately to the Edison where they arrested Lesko and Travaglia. Appellants were taken to the Public Safety Building and, after being given the standard Miranda warnings, were individually interrogated. Both gave statements implicating themselves in the killing of Officer Miller, and in the killings of William Nicholls, Peter Levato, and Marlene Sue Newcomer.
Following various delays caused by two changes of venue and a mistrial, trial commenced in Westmoreland County on January 21, 1981, before Westmoreland County Common Pleas Court Judge Gilfert Mihalich and a jury selected in Berks County. The jury found the Appellants guilty of the first degree murder of Officer Miller on January 30, 1981. On February 3, 1981, the jury, finding aggravating circumstances which outweighed any mitigating circumstances, imposed the penalty of death upon Appellants.
II. TRIAL ERRORS ALLEGED
A. SUPPRESSION MATTERS
Appellants claim that they were unlawfully arrested and that certain evidence should be suppressed as the fruit of the unlawful arrest. The evidence consists of a .22 caliber revolver taken from Lesko and a confession given by each of the Appellants.
Prior to the arrest, the police knew the following:
Three homicides by shooting had occurred in Westmoreland County between December 29, 1979 and January 3, 1980. The December 29 shooting of Peter Levato and the January 1 or 2 shooting of Marlene Sue Newcomer were done with a .22 caliber revolver. The January 3 shooting of Leonard Miller was done with a .38 caliber revolver.
During the approximate period of the killings, there had been a series of robberies of convenience stores in Westmoreland and Indiana Counties at which the victims were bound with yellow electrical wire. Travaglia’s father, B.T., had told the police that a spool of yellow electrical wire and a .38 caliber revolver had been stolen from him and that he suspected Travaglia of stealing the revolver. An inspection of a truck owned by Travaglia and repossessed by a bank had revealed yellow electrical wire similar to that stolen from Travaglia’s father and that used in the robberies. B.T. had also told the police that his son owned a .22 caliber revolver but had told him it was confiscated by a game warden. The Pennsylvania Game Commission had contradicted the report of the confiscation.
The victims of one of the robberies had said that the perpetrators fled in a tan Dodge Ram Charger with window curtains. The body of Marlene Sue Newcomer had been discovered in such a vehicle.
On January 3, 1980, an arrest warrant was issued for Travaglia for receiving stolen property in connection with a burglary at Sonny’s Lounge on Route 22 in Delmont, Westmoreland County. Travaglia was known to have been staying at the time with another individual at the Thatcher Motel, which was next to Sonny’s Lounge. Peter Levato’s car had been found abandoned on December 29, 1979, within a mile of the motel.
The police also knew that the windows of the escape vehicle used by the perpetrators of the Miller homicide had been shot out and that three men had been seen in the area hitchhiking toward Pittsburgh. A motorist, J.H., who gave a ride to a group of three men, had been previously acquainted with Travaglia and had identified him as one of the riders.
The police learned that Room 616 of the Edison Hotel in Pittsburgh had been rented to a Michael Simons and a Mr. Lesko. Travaglia was known to have used the alias Michael Simons. Information obtained from D.M. confirmed that Lesko and Travaglia were in Room 616 of the Edison Hotel and indicated that Lesko still had a .22 caliber revolver. A night clerk at the hotel told police that the Appellants were still in the room. At 10:20 p.m. on January 3, the clerk unlocked the room with a pass key. The police entered without announcing their identity or purpose. Lesko pointed his gun at them before surrendering.
Travaglia claims that his arrest was unlawful because the warrant for his arrest on the charge of receiving stolen goods was issued without sufficient probable cause. We need not decide that question because we find that the validity of the arrest does not depend on the validity of the warrant. A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense, Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973). The officers’ investigation and the information they acquired, as detailed above, gave them probable cause to believe that the Appellants were the perpetrators of the homicides. This allowed them to arrest the Appellants without a warrant.
The Appellants also claim that the arrests were invalid because the police acted improperly in entering the hotel room without a warrant and without announcing beforehand their identity and purpose. They base their claim on the rule prohibiting a warrantless entry into a suspect’s dwelling without exigent circumstances, Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and on the “knock and announce” rule, Commonwealth v. Norris, 498 Pa. 308, 446 A,2d 246 (1982); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). The Appellants would treat the hotel room as a dwelling and apply the requirements of Williams and Payton to both the warrantless entry and the failure of the officers to announce their identities and purpose. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) supports the Appellants’ contention that they had a reasonable expectation of privacy in their hotel room. The Court in Stoner held that a hotel clerk does not have authority to allow police to search a guest’s room. However, we find that even if the requirements of Williams and Payton apply to hotel rooms, they do not render these arrests invalid. In Williams, we listed certain factors that would tend to support a finding that a warrantless arrest of a suspect in his or her home is legal. These include, inter alia, that a grave offense is involved, particularly a crime of violence; that the suspect is reasonably believed to be armed; a clear showing of probable cause—including reasonable, trustworthy information—to believe that the suspect committed the crime; and strong reason to believe that the suspect is on the premises. We find that these factors were present in this case and were sufficient to establish exigent circumstances so as to justify a warrantless entry and arrest. Although the exigent circumstances which “justify failure to obtain an arrest warrant are not entirely coextensive with those exigencies which justify noncompliance with the ‘knock and announce’ rule,” Commonwealth v. Norris, 498 Pa. at 313 n. 2, 446 A.2d at 248 n. 2, the facts previously recited clearly demonstrate the existence of circumstances which excused compliance with this Fourth Amendment protection as well. See, Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332 (1957); Sabbath v. United States, 391 U.S. 585, 591, 88 S.Ct. 1755, 1759, 20 L.Ed.2d 828 (1967).
Lesko challenges his confession on the basis he was not told he was a murder suspect when given his Miranda warnings. He bases his claim on an allegation that on the pre-interrogation warning form which he signed, the only charges indicated were a firearms violation and resisting arrest. He argues that because homicide charges were not also included on the form, he did not possess sufficient knowledge to understand the consequences of waiving his rights and that therefore his waiver was invalid.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) does not require that in addition to the various rights enumerated a suspect must be provided information as to the crime under investigation. This Court has held, however, that a suspect must have “an awareness of the general nature of the transaction giving rise to the investigation,” in order to make an intelligent and understanding waiver of his rights. Commonwealth v. Dixon, 475 Pa. 17, 22, 379 A.2d 553, 556 (1977). See also Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974). It was stated in Dixon that where “the defendant has not been furnished with such information [so as to make him aware of the transaction involved] and a pre-trial challenge concerning the validity of a confession is made on this ground, the Commonwealth must prove by a preponderance of the evidence that the defendant knew of the occasion for the interrogation.” 475 Pa. at 23, 379 A.2d at 556. In that case it was held that the Commonwealth had not met its burden. We found that there existed a palpable ambiguity as to the defendant’s understanding of the reason for her interrogation before she executed the waiver of her rights. This ambiguity arose out of the fact that the defendant had defaulted in making restitution payments ordered by a justice of the peace several months earlier, a default which she had been warned would result in her arrest. Because the Commonwealth had not refuted the reasonable inference that the defendant, when she waived her rights, thought that the interrogation was to be in regard to the default, the waiver could not be said to be an intelligent and understanding one as to questioning about a homicide, and statements elicited as to the latter were suppressed.
Appellant Lesko argues for the same result here. We find the facts to be sufficiently different, however, that applying the same rule a different result is required. Prom the record of the Suppression Hearing it is unclear whether Lesko was specifically told that the questioning would cover several murders before he was given the waiver form to sign. At one point Detective Prank Amity testified: “First thing we did was read him his pre-interrogation warning form advising him of his rights, the charges against him, what we wanted to talk to him about.” (Suppression Hearing, p. 553, Sept. 23, 1980) (Emphasis added). Detective Amity later testified regarding what occurred after Lesko signed the form as follows:
Q. After you filled out this pre-interrogation warning form, what did you do?
A. Well, we advised him of the charges that we arrested him for.
Q. What were those?
A. Violation of the Uniform Firearms Act and the recklessly endangering another person. And we also told him that he was a suspect in several murders that happened and wanted to talk to him about those.
Q. After you told him this, what was the next thing that happened?
A. He was more willing to tell us about everything that he did.
(Suppression Hearing, p. 558, Sept. 23, 1980).
Even if we assume that prior to being given the waiver form Lesko was not told in words that the interrogation would include questioning as to the homicides, we cannot conclude that the listing of only the two minor charges on the form created an ambiguity in Lesko’s mind as to the purpose of the interrogation. It must be recalled that the four homicides about which Lesko was questioned had occurred over the five days immediately preceding the interrogation. The most recent homicide, the case at bar, had occurred in the early morning hours the same day. Indeed, Appellants Lesko and Travaglia had handed the weapon with which Officer Miller had been shot to D.M. less than an hour before their arrest. To find under the circumstances here present that Lesko was unaware of the general nature of the transaction giving rise to his questioning would be tantamount to treating as fact that which is patently hypothesis and fantasy. We need not expound upon the differences which distinguish these facts from those in Dixon. We think it sufficient to note that in Dixon we recognized that “the fact that interrogation follows hard upon the criminal episode and there is no circumstance lending ambiguity to the direction and purpose of the questioning,” 475 Pa. at 23, 379 A.2d at 556, could supply the necessary evidence that the defendant knew of the occasion for the interrogation. Viewing the entire episode in context, we must agree with the conclusion of the trial judge that Lesko “was, in fact, advised of the seriousness of his situation and was aware that the police were not concerned with the relatively minor charges.” (Opinion, p. 44).
The Appellants claim that it was improper to admit testimony by J.H. identifying them as two of three men he picked up and gave a ride to on January 3, 1980. The basis of this challenge is that H. had previously identified them from a photographic array. At the time of this photographic identification, the Appellants were in custody. The identification was conducted without the Appellants being represented by counsel.
In Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), we held that a suspect in custody was entitled to have counsel present at a photographic identification, and that the absence of counsel would bar a subsequent in-court identification unless there was a showing that such identification had an independent origin. The Commonwealth contends that Whiting does not survive United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). It has previously been suggested that Whiting was “undercut considerably” by Ash, Commonwealth v. Diggs, 260 Pa.Super. 349, 355 n. 5, 394 A.2d 586, 589 n. 5 (1978). It has also been suggested that to the extent Whiting expressed an interpretation of federal constitutional law, it did not survive Ash, although the state constitution, Article I, Section 9, might be given a broader sweep and require such a rule. Commonwealth v. Ray, 455 Pa. 43, 315 A.2d 634 (1974) (plurality opinion, Pomeroy, J.). Since the Ash decision, this Court has several times found it unnecessary to reach the issue whether the Pennsylvania Constitution requires that an accused be represented by counsel at a post-arrest photographic identification. See, Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). We need not reach that issue in this case either. Assuming arguendo that the Appellants were entitled to, but did not have counsel present at the photo array, and therefore that the identification was improper, it does not necessarily follow that the identification must be suppressed. The law is clear that even when an improper pre-trial identification is made, an in-court identification is nevertheless admissible if it has sufficient, independent basis. Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978). Here, H. was with the Appellants for thirty to forty-five minutes and was previously acquainted with Travaglia. This provided a sufficient, independent basis for the in-court identification.
Appellants next argue that their confessions were inadmissible because they were arraigned beyond the six-hour time limit set in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Appellants were arrested at 10:20 p.m. in the City of Pittsburgh. They were immediately informed of the charges against them and given the standard Miranda warnings of their rights. Once again after arrival at the police station, the Appellants were advised of the possible charges against them, told their rights, and both executed written waivers of their rights to remain silent and to have counsel present at further questioning. Lesko’s interview began within twenty minutes of his arrest and continued, with short breaks for coffee, for approximately an hour and a half. Travaglia likewise was interviewed for about an hour and a half after being detained for forty minutes in a holding cell. It is to be noted that the interviews involved discussion of at least four separate homicides, in addition to various other crimes charged, which had occurred over a period of seven days in three different counties. It is not surprising, then, that these initial interrogations spanned a relatively long period of time, Lesko’s concluding at 12:20 a.m. and Travaglia’s at 12:47 a.m.
After a pause of about ten or fifteen minutes, each Appellant then reiterated on tape the substance of the initial interviews as to each homicide discussed. With each of these taped statements requiring fifteen to twenty minutes, and with short breaks for food and rest, it was approximately 3:10 a.m. when the interrogations were complete. The Appellants were arraigned in front of Allegheny County District Justice Martin McTiernan at 3:50 a.m., Lesko on charges of homicide and conspiracy, and Travaglia on the same charges along with an additional count of receiving stolen property. This was five and one-half hours after their arrest. Following this arraignment, around 4:15 a.m., the Appellants were returned to the Public Safety Building. They remained there until 4:35 a.m. when they were turned over to state police officers. They were arraigned in front of Westmoreland County District Justice Michael Moschetti at 5:55 a.m. in the County Courthouse in Greensburg, seven and one-half hours after their arrest.
In Davenport, this Court adopted “a rule under which the admissibility of any statement taken while the accused is in custody before preliminary arraignment is based on the length of the delay between arrest and arraignment.” 471 Pa. at 286, 370 A.2d at 306. Although stated as mandatory and without any explicit exceptions, the rule that “[i]f the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment shall not be admissible at trial,” Id. (emphasis added), admits of an implicit exception “[S]ix hours provides a workable rule which can be readily complied with in the absence of exigent circumstances.” Id., n. 7 (emphasis added)). Although the continuing vitality of the Davenport rule as a whole is subject to speculation after Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1981) (Larsen, J., dissenting, joined by Flaherty, J.), and Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970, 971-972 (1982) (Flaherty, J. concurring, joined by Hutchinson, J.) [see also, Commonwealth v. Jenkins, 500 Pa. 144, 151, 454 A.2d 1004, 1008 (1982) (Concurring Opinion of McDermott, J.) ], it is clear that a majority of this Court has recognized the implicit “exigent circumstances qualification.” Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983); Commonwealth v. Jenkins, 500 Pa. at 150, 454, A.2d at 1007 (1982).
After unraveling a tangled web of criminal activity, the Pittsburgh police were able to arraign the Appellants on homicide charges in Allegheny County within the six hours allowed by Davenport. We may take judicial notice of the approximately 40-mile distance between Pittsburgh and Greensburg, where the Appellants were arraigned on the homicide charges in the case at bar. If we are to require that arraignment take place in the county in which jurisdiction for the crimes charged lies, it would be the height of folly to ignore the temporal and spatial realities which attend circumstances such as these, where arrest and arraignment occur a substantial distance apart. Cf. Commonwealth v. Dreuitt, 457 Pa. 345, 321 A.2d 614 (1974) (time necessary to transport defendant from place of arrest [Baltimore, MD] to Philadelphia not considered as part of unnecessary delay between arrest and arraignment, where defendant was advised of right to counsel and of charges against him at place of arrest) (O’Brien, J., announcing Opinion of the Court, joined by Eagen and Pomeroy, JJ.). We observe that except for the identity of the victims in the crimes charged, the Westmoreland County arraignment provided the Appellants with no more information than the Allegheny County arraignment had two hours previously. Under these circumstances, we find no error in the admission of the statements.
B. TESTIMONY AT TRIAL
Appellants allege that it was error for the trial court to allow a prosecution witness, R.R., to testify as to criminal acts of the Appellants, occurring just prior to the Miller homicide, which were not included in the crimes charged at bar.
R.’s testimony consisted of an account of how he had accompanied Lesko and Travaglia from the Edison Hotel in downtown Pittsburgh, where the Appellants had abducted one William Nicholls in his automobile; how Travaglia had shot Nicholls in the arm and then forced him to drive them out of town; how both Appellants had abused Nicholls along the way; how they had driven to a lake and, after R. helped them find a large rock, how Appellants had taken Nicholls down to the lake and returned to the car without him. R. testified that the trio then went to Travaglia’s father’s house where they stole a .38 caliber pistol, and returned to the house and forced R. to enter the garage to get other ammunition after they found the gun contained the wrong type. R. then testified to their speeding past Officer Miller several times, and to the subsequent shooting of Miller by Travaglia.
The law is clear in Pennsylvania that evidence of other unrelated criminal conduct of an accused is generally inadmissible to prove his commission of the crime for which he is being tried. Commonwealth v. Styles, 494 Pa. 524, 431 A.2d 978 (1981); Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973).
It is equally clear, however, that evidence of other crimes is admissible where it is relevant to prove (1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the accused as the perpetrator, or (5) the absence of mistake or accident. Styles, 494 Pa. at 525-26, 431 A.2d at 980.
These exceptions are not to be applied in a vacuum, however. “Evidence of other offenses is subject, as is all relevant evidence, to exclusion if its probative value is outweighed by the ‘danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy.’ ” Commonwealth v. Terry, 462 Pa. 595, 603, 342 A.2d 92, 96 (1975) (dissenting opinion of Roberts, J.); Commonwealth v. Brown, 462 Pa. 578, 594, 342 A.2d 84, 92 (concurring opinion of Roberts, J., joined by Manderino, J.). See also, Fed.R.Evid. 403, 404(b); McCORMICK’S HANDBOOK OF THE LAW OF EVIDENCE § 185, at 438-39 (2d ed. E. Cleary 1972).
Our review of the record leads us to the conclusion that while the possibility of prejudice existed, it was heavily outweighed by the probative value of R.’s testimony. The Appellants were advancing the theory that the shooting of Officer Miller was an accident, that Travaglia’s finger had slipped from the gun’s hammer. Viewing the facts of the Miller incident in isolation, this theory would be hard to refute.
The Commonwealth introduced R.’s testimony to show motive and intent. The details of the incidents which occurred just a short time prior to Officer Miller’s shooting were developed to show that the Appellants were not just out to harass Miller that evening, but rather that they were in a stolen car, with the victim Nicholls’ personal belongings and two firearms which could connect them to the prior wrongdoing.
Taken in this context, the facts elicited from R. are so heavily related to and intertwined with the circumstances of Miller’s killing that their evidentiary value greatly outweighs any possible prejudice suffered by the Appellants. Therefore, the trial court correctly allowed this testimony to be admitted.
Part of the arguments on this point merit a brief, separate discussion. According to this line of argument, the details of the Nicholls episode as testified to by R. were so horrid as to inflame the passions of the jury and prejudice them against the Appellants during the sentencing phase of the trial and therefore were improperly admitted. Whether the trial court in a capital case, in balancing the probative value of proffered evidence against its potentially prejudicial effect, must give separate consideration to the possible effect of the evidence at the sentencing phase, is a question which admits of no general answer. There may be circumstances where evidence, deemed admissible at trial because its relevance to the determination of guilt outweighs its possible prejudice, should nevertheless be excluded because it is so inflammatory that its relevance to determination of sentence would be outweighed by its potential prejudice. Cf. Commonwealth v. Zettlemoyer, 500 Pa. 16, 53 n. 21, 454 A.2d 937, 956 n. 21 (1982) (conceivable that the reading of a “loaded” indictment to establish felony element of the aggravating circumstance that “the victim was a prosecution witness to a murder or other felony committed by the defendant ...,” 42 Pa.C.S. § 9711[d][5], could so inflame the jury that the possibility of prejudice would outweigh the evidentiary value of reading the indictment.). In most cases, however, the decision that the evidence is admissible for purposes of the guilt phase renders it, like all evidence admitted at trial, admissible for the penalty phase as part of the “circumstances” to be considered by the jury. As long as there is no “embellishment” upon the facts or improper attempt by the prosecutor to dwell upon the inflammatory character of the evidence, no additional weight should be accorded to the potential for prejudice because such evidence might play a part in the sentencing determination. Where facts are relevant for a proper purpose at trial, defendants may not be heard to complain about the horrid character of such facts. To find otherwise would give rise to the perverse result that a capital defendant would benefit more, the more horrible the background circumstances were.
In the present case we find that R.’s testimony went uncontradicted. We also find that the prosecutor made minimal reference to this testimony in his closing at the guilt phase, and then only to the substance of the testimony, not to the details. Furthermore, he made no reference at all to R.’s testimony or the details of the Nicholls episode in his argument at the penalty phase. Indeed, any reference to Nicholls during the penalty phase was made by counsel for Appellant Travaglia. Upon thorough review of the record we find that the prejudicial effect of R.’s testimony was outweighed by its probative value in determining guilt, and was not exacerbated by its treatment in determining the sentence to be imposed.
Appellants also contend that they were prejudiced by R.’s testimony that their actions as to Nicholls seemed to him “like something they did all the time.” In view of the record and the trial court’s immediate cautionary instructions, the error, if any, was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
C. SENTENCING HEARING
The Appellants raise several allegations of error during the sentencing phase of their trial which, they argue, require suspension of the death penalties and imposition of life sentences.
The first of these allegations is that it was error for the court to allow into evidence as an aggravating circumstance the Appellants’ guilty pleas to homicide charges in Indiana County arising out of the Nicholls incident. The statute provides that
evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).
42 Pa.C.S. § 9711(a)(2). One of the aggravating circumstances which may be considered is that
[t]he defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
42 Pa.C.S. § 9711(d)(10). The Appellants argue that because sentence had not been imposed by the Indiana County Court, the guilty pleas were not final “convictions” for purposes of the statute, and therefore should not have been considered as an aggravating circumstance. Appellants cite Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974), as holding-counsel ineffective for bringing up prior “convictions” where sentence had not been imposed, because such convictions were not grounds for impeachment as they were not final. They also cite Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979). There we granted Appellants a new trial where the prosecutor had manipulated the court calendar to delay sentencing of a person found guilty of perjury, in order to prevent that person’s being ruled incompetent to testify under the Disqualification Act, 19 P.S. § 62. And the Appellants cite generally Commonwealth ex. rel. McClenachan v. Reading, 336 Pa. 165, 6 A.2d 776 (1939), wherein it was stated that
[i]n interpreting a statute using the word ‘conviction’ the court has held that the strict legal meaning must be applied except where the intention of the legislature is obviously to the contrary.
336 Pa. at 169, 6 A.2d at 778. This “strict legal meaning”, requires a verdict accompanied by sentence, and is to be contrasted with statutes wherein the legislature uses the language “found guilty” to permit use of a verdict unaccompanied by a sentencing. See, e.g., Rosenthall v. State Board of Pharmacy, 3 Pa.Cmwlth. 621, 284 A.2d 846 (1971).
While this argument has superficial appeal, it must fail upon closer inspection. The clear import of the first part of subsection (d)(10) is to classify the commission of multiple serious crimes as one of the bases upon which a jury might rest a decision that the crime of which the defendant stands convicted, and for which they are imposing sentence, merits the extreme penalty of death. The purpose of the second part of subsection (d)(10) just as clearly is to classify the fact that the defendant was already serving a life sentence at the time he committed the offense at issue as another basis for such a decision. The first part of the subsection allows as an aggravating circumstance the fact that “the defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable ...” 42 Pa.C.S. § 9711(d)(10) (Emphasis added). The emphasized portion of the statute highlights the incongruity of the construction urged by the Appellants. By including offenses committed contemporaneously with the offense in issue, the legislature clearly indicated its intention that the term “convicted” not require final imposition of sentence, but cover determinations of guilt as well. Given the practical operation of the criminal justice system, a contemporaneous offense would either be tried together with the “offense at issue” or severed and tried separately. In the former situation, it would be impossible for sentencing to have occurred prior to the jury’s consideration of sentence on the “offense at issue”; in the latter, the vagaries of scheduling and conducting separate trials of a single defendant, within certain time limits and amidst the ordinary operation of a court calendar, would make it virtually impossible. At best, such factors would render it completely arbitrary whether a contemporaneous offense would qualify as an aggravating circumstance under subsection (d)(10).
We cannot accept the Commonwealth’s argument that use of the word “imposable” would have been absurd if the Legislature had intended “convicted of” to mean that a finding of guilt had been made and sentence had been imposed. The prepositional phrase “for which a sentence of life imprisonment was imposable” refers back to, and is descriptive of, the offense which if the defendant has been “convicted” thereof may be considered an aggravating circumstance. Because the phrase modifies the noun “offense” rather than the verb “convicted”, by itself it sheds no appreciable light on the shade of meaning to be attributed to the latter. We note, however, that the second part of subsection (d)(10), allowing as an aggravating circumstance that “the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense,” appears to be coextensive with the situation which would exist where a defendant has been found guilty and had a life sentence imposed. Were we to read the first part of the statute as the Appellants suggest, the second section would be surplus verbiage. Because the Legislature is not presumed to have intended the provisions of its enactments as mere surplusage, Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977), the Appellants’ position is untenable. For these reasons, we find that, as used in 42 Pa.C.S. § 9711(d)(10), the legislature evidenced a clear intent that “convicted” mean “found guilty of” and not “found guilty and sentenced.”
Appellants also put forward several allegations of improper argument by the prosecutor at the sentencing hearing. Lesko contends that the prosecutor exceeded the bounds of proper argument when he commented on Lesko’s failure to show remorse. Lesko took the stand at the Sentencing hearing and testified to details of his life history—the orphanages at which he stayed, the schools he attended, his service record—up until the time he first met Travaglia. The prosecutor did not cross-examine Lesko. In his argument to the jury, the prosecutor stated:
John Lesko took the witness stand, and you’ve got to consider his arrogance. He told you about how rough it was, how he lived in hell, and he didn’t even have the common decency to say I’m sorry for what I did. I don’t want you to put me to death, but I’m not even going to say that I’m sorry.
(N.T., p. 1697).
Although Travaglia did not take the stand, and the prosecutor made no direct comment on his failure to indicate remorse, he argues that the prosecutor’s comments as to Lesko improperly implied that he, Travaglia, had a burden to take the stand and show remorse.
Lesko cites cases for the proposition that when a defendant testifies as to a collateral matter, the prosecutor is not permitted to comment adversely upon his refusal to testify on the merits of the charge against him. See, e.g., Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971). The rationale for this rule is that such comment would run counter to the privilege against self-incrimination and the defendant’s presumption of innocence. It is important to note that the argument complained of here was delivered during the sentencing phase of Appellants’ trial. Lesko and Travaglia had already been tried and found guilty of first degree murder. The Commonwealth had been put to its proof and, without any infringement on the defendants’ privilege against self-incrimination, the presumption of innocence had been overcome beyond a reasonable doubt. We must keep in mind that the “sentencing phase” of the trial has a different purpose than the “guilt phase” and different principles may be applicable. For example, the privilege against self-incrimination in its pure form has no direct application to a determination of the proper sentence to be imposed; the purpose of the prosecutor is not to “incriminate,” and the goal of the guilty defendant is not to avoid “incrimination.” Likewise, the presumption of innocence which accompanies the accused throughout proceedings to determine his guilt has no direct application to the sentencing determination. This is reflected in the fact that the sentencing statute, without running afoul of the federal or state constitutions, places a burden on the defendant of proving mitigating circumstances by a preponderance of the evidence. It may be acknowledged that in some sense there is a “presumption of life”—this from the fact that the prosecution is limited to specified aggravating circumstances which must be proven beyond a reasonable doubt, while a defendant is permitted great latitude in demonstrating mitigating circumstances, and then by the lesser preponderance of evidence standard. This presumption, if it be called such, does not, however, support the reasoning or the rule which Appellants argue for excluding comment on the failure to show remorse.
It should not go unnoticed that the demeanor of a convicted defendant, including his apparent remorse, is a proper factor for consideration by the court in fixing sentence in noncapital cases. We find no reason in policy or logic why the jury in a capital case, which is the sentencing authority, should be prevented from considering this same information. Had the prosecutor launched an extended tirade on this point, thereby focusing undue attention on the remorse factor, Appellants’ claim of prejudice might have greater force. It is clear from examining the prosecutor’s argument as a whole that he made only this single reference to remorse, which amounted to a suggestion that this was a factor which the jury should consider. We also note that the court in its charge instructed the jury that the defendants had no obligation to testify and that no adverse inference should be drawn from their failure to testify. We therefore find no error arising out of these comments.
The Appellants argue further impropriety in statements of the prosecutor which they characterize as calculated to arouse the prejudice and sympathy of the jury against them. Appellants first call attention to the prosecutor’s statement:
So I’ll say this: Show them sympathy. If you feel that way, be sympathetic. Exhibit the same sympathy that was exhibited by these men on January 3,1980. No more. No more.
(N.T., p. 1701).
It is axiomatic that a statement must be read in context in order to assess its propriety. We therefore set out at length the portion of the prosecutor’s argument which immediately preceded the challenged statement:
But I have a problem. Each one of you promised me, promise^! the judge, Mrs. Ambrose, Mr. Bertani, Mr. McCorriiick, Mr. Marsh and the defendants, when we started, that you would follow the law. You all promised that you wouldn’t become a social activist. But I can’t stop that. I can’t stop you from walking out into that deliberation room after the judge charges you and saying to yourself, The Commonwealth has proved one or more aggravating circumstances, and there’s no mitigating circumstances here at all, and the law says I must find these defendants and sentence them to death, but I won’t do that, because I feel sympathy. And I also can’t stop you from saying, well, I found one or more aggravating circumstances that have been proven beyond a reasonable doubt, and although I found mitigating circumstances, the aggravating circumstances outweigh them, and the law says that I must return a death penalty, but I won’t, I’m going to show sympathy. I just can’t stop you from doing that.
Id.
It is clear from reading this argument as a whole that the prosecutor was seeking to remind the jury that sympathy was not a proper consideration, but that if they were inclined to be sympathetic they should temper their sympathy. [This, in fact, was the essence of the trial court’s instruction—that sympathy was not a factor to be considered in the jury’s deliberations, that there was sympathy on both sides of the case. (N.T. p. 1706) ]. This was not an improper argument for the prosecutor to have made.
Appellants argue further that the prosecutor erred in this statement by making reference to the victim. They cite Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974); Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975); and other cases wherein this Court has disapproved prosecutorial arguments which invite consideration of the murder victim. We observe that these cases all treat closing arguments made during trials for the purpose of determining guilt or innocence, where the defendant is still clothed with a presumption of innocence. A large part of the reason why these arguments invoking the memory of the victim were disfavored was the prosecutor’s implication of his personal belief in the guilt of the accused. See, e.g., Commonwealth v. Cronin. [Argument that “ ‘[T]he only way you cannot find this defendant guilty of murder of the first degree is for [the victim] to walk through that door,’ ” 464 Pa. at 141, 346 A.2d at 61, disapproved as “ ‘amountpng] to a statement by the prosecutor that he was personally convinced that the appellant was guilty, and his innocence was as unlikely as the deceased’s resurrection.’ ” Id., 464 Pa. at 142, 346 A.2d at 61, quoting from Commonwealth v. Lark, 460 Pa. 399, 404-405, 333 A.2d 786, 789 (1975)]. We again observe that the balance of principles which results in certain rules being appropriate at the “guilt phase” of a trial, may be struck differently at a hearing to determine appropriate penalty. The prosecutor’s statement of his personal belief in the defendants’ guilt can in no way be prejudicial where guilt has already been determined.
Prejudice might otherwise arise from reference to the victim if such reference has the effect of arousing the jury’s emotions to such a degree that it becomes impossible for the jury to impose sentence based on consideration of the relevant evidence according to the standards of the statute. We find the statements of the prosecutor in this case to have made minimal reference to the victim. Indeed, the memory of both Leonard Miller and William Nicholls was first invoked by counsel for Appellant Travaglia (“And Leonard Clifford Miller is dead, and there’s no question about that. Mr. Nicholls is dead; there’s no question about that. If the killing of Mike Travaglia can bring back those people, then there would be a legitimate reason for killing Mike Travaglia. Because then you bring back those people to their families, and you give something back; you create something from what you’re doing. But you cannot do that.” N.T. p. 1677).
Reading the arguments at the sentencing hearing as a whole, we find that the prosecutor’s argument was carefully tailored to demonstrate the proof of aggravating circumstances, to refute the proof of mitigating circumstances, and to correct extraneous arguments introduced by the defense. We find no prejudice from the challenged statements making oblique reference to the victim.
Finally, we address Appellants’ arguments that the prosecutor’s final statement to the jury was inflammatory. The prosecutor stated, “Right now, the score is John Lesko and Michael Travaglia two, society nothing. When will it stop? When is it going to stop? Who is going to make it stop? That’s your duty.” Appellants characterize this statement as an improper appeal to vengeance which requires reversal of the death sentences. As we read the record, the arguments presented by defense counsel were to a large extent directed toward demonstrating that there was no rational reason for the existence of the death penalty, that it served no useful purpose. The prosecutor opened his argument by pointing out that the legislature in its lawmaking function had enacted the death penalty and had already decided that there is a rational reason and that the penalty does serve a useful purpose. He returned to this theme, and prefaced the comment complained of by requesting “I want you to remember this: We have a death penalty for a reason.” N.T. p. 1701. The prosecutor is permitted, by the terms of the statute, to argue in favor of the death penalty. 42 Pa.C.S. § 9711(a)(3). Taken in context, we find the prosecutor’s comment to have been no more than permissible “oratorical flair” in arguing in favor of the death penalty.
III. PROPORTIONALITY REVIEW
Consistent with decisions of the United States Supreme Court, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); prior decisions of this Court, Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied,--U.S.----, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); and the sentencing statute, 42 Pa.C.S. § 9711(h)(3)(iii), “this Court will conduct an independent evaluation of all cases decided since the effective date of the sentencing procedures under consideration (September 13, 1978).” Zettlemoyer, 500 Pa. at 62, 454 A.2d at 961. This review “will utilize all available judicial resources and will encompass all similar cases, taking into consideration both the circumstances of the crime and the character and record of the defendant in order to determine whether the sentence of death is excessive or disproportionate to the circumstances.” Id.
Our research indicates that three cases in which “[t]he victim was a fireman, peace officer or public servant concerned in official detention ... who was killed in the performance of his duties,” 42 Pa.C.S. § 9711(d)(1), have proceeded to jury verdict under the Act of September 13, 1978. The cases are Commonwealth v. Benjamin Terry, Montgomery County Court of Common Pleas, Criminal Division, No. 1563-79, docketed on appeal with this Court, 80-3-595, argued April 19, 1983; Commonwealth v. Edward McNeil, Philadelphia County Court of Common Pleas, Criminal Division, CP 80 Nov. 969-71; and Commonwealth v. Leslie Beasley, Philadelphia County Court of Common Pleas, Criminal Division, CP 80 July 2175-2178.
In Terry, the defendant was an inmate serving three life sentences for murder. He was found guilty of first degree murder in the bludgeoning death of a guard at the State Correctional Institution at Graterford. The jury sentenced him to death. In Beasley, after finding him guilty of shooting an on-duty police officer, the jury sentenced the defendant to death. In McNeil, the defendant shot and killed a police officer who was at the scene where the defendant had been shooting at his wife and children. The jury convicted the defendant of first degree murder and imposed a life sentence.
We have searched the records of these cases available to this Court for information as to the character of the defendants (e.g. intelligence, family background, psychiatric history, previous criminal record), and the circumstances, both aggravating and mitigating, of their crimes. We find that the sentence of death is not excessive or disproportionate to the penalty imposed in these similar cases. We also find that the evidence supports “the finding of an aggravating circumstance specified in subsection (d),” 42 Pa.C.S. § 9711(h)(3)(h), and that the sentences were not “the product of passion, prejudice or any other arbitrary factor,” 42 Pa.C.S. § 9711(h)(3)(i). We therefore must affirm the sentences of death.
NIX, J., filed a concurring opinion.
ROBERTS, C.J., filed a dissenting opinion.
[OPINION BY NIX, Justice, type=concurrence]
NIX, Justice,
concurring.
I am fully in accord with the majority’s affirmance of the verdicts of guilt in these appeals. My concern is directed to the majority’s disposition of the objection to the allowance into evidence as an aggravating circumstance of the appellants’ guilty pleas to the homicide charges in Indiana County (the William C. Nicholls killing). The majority focused its analysis upon whether the term “convicted” as used in section 9711(d)(10), 42 Pa.C.S. § 9711(d)(10), requires the imposition of sentence before such evidence can be admissible for this purpose. In my judgment the issue raised is the finality of the conviction that is being offered as an aggravating circumstance. Where as here there have been challenges to the pleas entered in Indiana County, I am convinced that section 9711(d)(10) must be interpreted as providing for review by this Court of those claims prior to the execution of the judgments of sentence of death affirmed by the Court today. I therefore join in the Court’s mandate today with the caveat that the death penalty will be carried out only after a review of those complaints by this Court and only if after such review it is determined that the pleas were voluntarily and knowingly entered and the request for withdrawal was properly refused.
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court painstakingly stressed the importance of the sentence-review function to be undertaken by the state’s highest tribunal where the death penalty has been imposed. As noted by that Court in Zant v. Stephens,-U.S.-,-, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235, 255 (1983): “[Although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.” Surely an attack upon the validity of a guilty plea that has been used as the basis for a finding of an aggravating circumstance constitutes the type of contention that must be reviewed before the execution of the capital sentence may be allowed.
An interpretation of section 9711(d)(10) which provides for such a final review by this Court of a challenge of this nature is also dictated by the law of this Commonwealth. Our Constitution mandates a right of appeal in all cases. Pa. Const, art. V, § 9; see Section 5105 of the Judicial Code, 42 Pa.C.S. § 5105. Moreover, our case law has recognized the qualitative difference between death and any other permissible form of punishment by relaxing rules of waiver which would otherwise preclude review of the merits of claims where the death sentence has been imposed. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, - U.S. -, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). In light of such precedent, it would clearly create an anomaly to foreclose a challenge upon the validity of a plea of guilt where that plea constitutes the aggravating circumstance upon which the death sentence is predicated.
It must be recognized that the validity of each aggravating circumstance is an important consideration even where there may be more than one aggravating circumstance upon which the jury could have reached its decision. Pennsylvania’s death penalty statute provides that where the jury finds the existence of both aggravating and mitigating circumstances the jury must then engage in a “weighing” process. If, after the weighing process, the jury determines that the aggravating circumstances outweigh the mitigating circumstances, it must return the death sentence. 42 Pa.C.S. § 9711(c)(iv). It is evident that this weighing process is squarely within the province of the jury and that a reviewing court cannot determine with any certainty the exact weight which the jury attached to each aggravating and mitigating circumstance. In a case involving a decision as important as life and death we are not in a position to speculate about what decision the jury might have reached had it not considered one particular aggravating circumstance. Therefore, if the validity of even one aggravating circumstance is in dispute, the death sentence should not be executed until the resolution of that dispute has become final.
Moreover, in view of our statutory responsibility to thoroughly review the record in death penalty cases, the resolution of any such dispute within the jurisdiction of this Commonwealth must be made by this Court. Such disputes need not be decided within the context of the death penalty appeal; for example, appellant Lesko’s guilty plea challenge, lodged initially in the Superior Court, was decided by this Court in a separately briefed and argued appeal. However, where an appeal which has bearing on the validity of an aggravating circumstance relied upon in arriving at the death sentence is pending in another court of this Commonwealth at the time that sentence is reviewed by this Court, at least that portion of such appeal which affects the efficacy of the aggravating circumstance should be certified to this Court for disposition. Where a proceeding which has given rise to a finding of an aggravating circumstance is at the pre-sentencing stage, a direct appeal to this Court should be permitted upon sentencing. Until we have disposed of such related appeals this Court’s statutorily mandated review of the death sentence is not complete, and execution of sentence should be stayed.
[OPINION BY ROBERTS, Chief Justice, type=dissent]
ROBERTS, Chief Justice,
dissenting.
Because appellants are presently represented by the same counsel who represented them at trial and at the death penalty hearing, there has been no meaningful inquiry into whether appellants have been afforded their constitutional right to the effective assistance of counsel. In the absence of such an inquiry, the reasons for counsel’s strategy, which do not appear of record, cannot be known, and it cannot be determined whether there existed evidence which should have been presented by counsel but was not.
Accordingly, the record should be remanded for the appointment of new counsel, who would be obliged to submit a petition to the court of common pleas addressing the effectiveness of trial counsel. As previously stated, “[ujntil a hearing on counsel’s effectiveness has been held, this Court cannot fairly state that it has discharged its statutory duty to provide a thorough review of the judgment^] of sentence of death.” Commonwealth v. Zettlemoyer, 500 Pa. 16, 77, 454 A.2d 937, 971 (1982) (Roberts, J., joined by O’Brien, C.J., dissenting).
Appellant Lesko has, in a separate appeal, No. 41 W.D. Appeal Dkt. 1982, raised a claim of ineffective assistance of counsel in the Indiana County case based on his attorney’s advice to plead guilty. This matter is treated in a separate opinion filed this day and reported at 502 Pa. 511, 467 A.2d 307.
The Appellants also allege other instances of error which, having carefully reviewed the record and the precedents, we must reject. Arguments that the exclusion of veniremen conscientiously opposed to the death penalty violates due process and the Appellants’ right to a fair trial, and that the imposition of the death penalty is “cruel and unusual” punishment, have been previously ruled upon by this Court. See Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975), and Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), respectively. Arguments that the Appellants were denied their rights to speedy trial under the Federal and State Constitutions and Rule 1100, that the trial court erred in not quashing the information which charged both conspiracy and homicide, and that the trial court erred in not charging the jury that they could find Lesko guilty of a different degree of murder than Travaglia, are without merit. No jurisprudential value would be served by further discussion of these points.
We note that the United States Supreme Court has granted certiorari to the Court of Appeals for the Ninth Circuit in the case of Pulley v. Harris, - U.S. -, 103 S.Ct. 1425, 75 L.Ed.2d 787 (1983), decision below reported sub nom. Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982). The questions presented for review are “(1) Does the Constitution, in addition to procedures whereby trial court and jury impose death sentence, require any specific form of ‘proportionality review’ by court of statewide jurisdiction prior to execution of state death judgment? (2) If so, what is the constitutionally required focus, scope, and procedural structure of review?”
On appeal, this Court remanded the case for a new trial, 501 Pa. 626, 462 A.2d 676 (1983), because the lower court had improperly allowed the jury, during their deliberations, to have possession of a copy of a paraphrased, written version of the defendant’s confession, a violation of Pa.R.Crim.P. 1114(a). We cannot, therefore, presently consider the case as having proceeded to jury verdict. We must note, however, that throughout much of our deliberation on the cases at bar, Terry was considered as a “similar case” for purposes of comparison. To the extent that our review for excessiveness or disproportionality involves determining whether or not juries generally, across the Commonwealth, find death to be an appropriate punishment for the crime, Terry has some limited value. Even if we remove Terry from consideration entirely, however, our conclusion remains unchanged.
The Dissenting Opinion of Mr. Chief Justice Roberts reiterates his position in Zettlemoyer, 500 Pa. at 77-81, 454 A.2d at 969-971. That position, however, is based on two premises which, if subjected to careful analysis, must be considered faulty. The first premise is that “the sentence imposed forecloses the availability of those subsequent [Post-Conviction Hearing Act] proceedings” which are available for appellants to challenge the effectiveness of counsel in “conventional” cases. Zettlemoyer, 500 Pa. at 79, 454 A.2d at 970. The authority cited for this proposition is 42 Pa.C.S. § 971 l(i), paraphrased “record to be transmitted to Governor at close of this Court’s review.” Id. The full text of this section, however, reads: Where a sentence of death is upheld by the Supreme Court, the prothonotary of the Supreme Court shall transmit to the Governor a full and complete record of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court. 42 Pa.C.S. § 971 l(i) (emphasis added). Contrary to the implication of the Dissent, the statute does not require that the official record be transmitted to the Governor. Nor does the statute in any other way, either expressly or impliedly, remove the case from the jurisdiction of the courts or prevent further action by the courts. It is to be noted also that the Majority Opinion in Zettlemoyer contains a similar conclusory statement that “due to the final and irrevocable nature of the death penalty, the appellant will have no opportunity for post-conviction relief wherein he could raise, say, ah assertion of ineffectiveness of counsel ...” 500 Pa. at 50 n. 19, 454 A.2d at 955 n. 19. Offered in support of the rationale for relaxing the waiver rule and considering issues raised for the first time before this Court or even raised sua sponte by this Court, the statement is clearly dictum. The second premise of the Dissent in Zettlemoyer, quoted in the present Dissenting Opinion, is that “[ujntil a hearing on counsel’s effectiveness has been held, this Court cannot fairly state that it has discharged its statutory duty to provide a thorough review of the judgment of sentence of death.” 500 Pa. at 81, 454 A.2d at 971. Although “thorough” is perhaps an appropriate general characterization of this Court’s reviewing function in death penalty cases, it must not be overlooked that 42 Pa.C.S. § 9711(h) is quite specific in its description of this Court’s duty in reviewing a sentence of death. Thus, (2) In addition to its authority to correct errors at trial, the Supreme court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence. (3) The Supreme Court shall affirm the sentence of death unless it determines 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 an 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. (Emphasis added.) Although ineffectiveness of counsel might be classified as an “arbitrary factor” within subsection (3)(i), unless it is raised by the appellant or some hint of its presence is suggested by the record so as to cause this Court to raise the issue sua sponte, it is inconceivable how the issue can come before the Court on direct appeal.
Section 9711(d)(10) provides: (d) Aggravating circumstances.—Aggravating circumstances shall be limited to the following: ♦ * * * * * (10) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
Appellant Travaglia filed a motion to withdraw his guilty plea to the Indiana County charge on January 23, 1981, during the trial of the instant case. That motion was denied on April 30, 1981 and Travaglia was sentenced to a term of life imprisonment. There is no indication in the record whether an appeal was taken from that judgment of sentence. Appellant Lesko initially filed a motion to withdraw his guilty plea in the Indiana County case on December 3, 1980, prior to the trial in Westmoreland County, and filed an amended motion to withdraw on April 13, 1981. His motion, as amended, was denied on June 5, 1981. Lesko’s challenge to that denial was rejected, and he was sentenced on July 17, 1981 to a term of life imprisonment. Lesko appealed to the Superior Court, which transferred the appeal to this Court. In Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983), this Court affirmed the judgment of sentence. Thus as to Lesko my concern expressed here is satisfied.
See Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1982), cert. denied,-U.S.-, 103 S.Ct. 460, 74 L.Ed.2d 611 (1983); Elledge v. State, 346 So.2d 998 (Fla. 1977); State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981); State v. Moore, 614 S.W.2d 348 (Tenn.1981); Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied sub nom. Hopkinson v. Wyo., 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982).
In the case of Zant v. Stephens,-U.S.-, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the U.S. Supreme Court held that under a state statute which did not require this weighing process, and where no suggestion is made that the presence of more than one aggravating circumstance should be given special weight, the subsequent invalidity of one of the aggravating circumstances does not invalidate the death sentence. The court in Zant stated the following: [W]e note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is “invalid” under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty. Id. at-, 103 S.Ct. at 2750, 77 L.Ed.2d at 258.
Where an aggravating circumstance such as a conviction in the court of another state or in federal court is at issue, such a dispute will be considered resolved when passed upon the highest court of that jurisdiction.
See footnote (2), supra. As noted in that footnote, the status of appellant Travaglia’s guilty plea remains to be established. In light of this Court’s pronouncement in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania,-U.S.-, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978), a subsequent challenge to the validity of that plea may not be assumed to be waived.
467 A.2d 307
COMMONWEALTH of Pennsylvania, Appellee, v. John Charles LESKO, Appellant.
Supreme Court of Pennsylvania.
Argued March 10, 1983.
Decided Sept. 29, 1983.
John H. Armstrong (Court-appointed), Indiana, for appellant.
Gregory A. Olson, Dist. Atty., Indiana, for appellee.
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDermott, hutchinson and zappala, jj.
[OPINION BY ZAPPALA, Justice. type=majority]
OPINION
ZAPPALA, Justice.
It is undisputed that on May 19, 1980, the Appellant John Charles Lesko pled guilty to murder in the second degree for the killing of William C. Nicholls. This plea was entered into on the day the matter was set for a jury trial, after a brief discussion between the attorney for the Appellant and the Indiana County District Attorney. It appears from the record that in return for the Appellant’s plea of guilty to a charge of murder in the second degree, the Commonwealth dismissed the remaining charges of murder, complicity to commit murder, robbery and theft. Furthermore, the Commonwealth would not pursue sentencing of the Appellant until at least June 2, 1981 or later. Thereafter, on or about December 1, 1980, the Appellant filed a motion to withdraw his guilty plea.
In support of this motion, the Appellant alleged that given time for reflection, he wished to exercise his constitutional right of a trial by jury. This motion was subsequently amended on or about April 13, 1981 to allege that the Appellant was motivated to plead guilty “as a result of his illegal arrest and subsequent confession” (R. 26). Furthermore, he indicated that an element of the plea arrangement was that his plea in this case could not be used in his Westmoreland County trial. Since the District Attorney of Indiana County testified in the trial in Westmoreland County notwithstanding the Appellant’s understanding of the plea agreement, the Appellant wished to withdraw his guilty plea. After taking testimony, reviewing briefs and the record, the learned trial judge dismissed the motion on or about June 5, 1981. Thereafter, the Appellant was sentenced to life imprisonment on the second degree murder charge. The Appellant filed an appeal to the Superior Court, which subsequently transferred the matter sua sponte to this Court. On appeal, the Appellant raised for the first time the issue of the ineffectiveness of trial counsel. Even though no hearing has been conducted regarding this issue, we have assumed jurisdiction of this issue for the sake of judicial economy. Furthermore, remanding for an evidentiary hearing would not assist us in the disposition of this appeal.
In the lower court opinion, the trial judge found that “the evidence established: that the defendant entered his plea of guilty to second degree murder upon agreement of the Commonwealth to delay sentencing as a deliberate choice of trial strategy in an effort to prevent evidence of his criminal acts in Indiana County from being considered as an aggravating circumstance during his first degree murder trial for killing a Westmoreland' County police officer.” (R. 51). The Appellant agrees with this finding and now argues that his trial counsel was ineffective for persuading him to plead guilty in that trial counsel’s conception of the use of this plea in the Westmoreland County case was in error. Because it appears that the action of the Appellant’s trial counsel was a calculated attempt to avoid the use of any Indiana County conviction in the Westmoreland County case as an aggravating circumstance, trial counsel cannot be deemed to be ineffective.
In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), Mr. Justice Roberts, now Chief Justice, cogently discussed the issue of ineffectiveness of trial counsel. Initially, trial counsel is presumed to be competent, and his alleged ineffective actions must be evaluated to determine whether the strategy chosen is founded upon a reasonable basis designed to further his client’s interests. We recently reaffirmed this test for determining ineffectiveness of trial counsel.
The test of constitutional effective assistance of counsel is whether a particular course chosen by counsel had some reasonable basis designed to effectuate its client’s interest. (Citations omitted) (Emphasis in original). The initial factor that is considered in applying this standard is whether the matters counsel is charged with failing to pursue had arguable merit. (Citations omitted).
Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). See also Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
This rule is founded upon the inequity of finding trial counsel ineffective for pursuing a strategy which at the time appeared to be in his client’s best interest. It is grossly unfair to characterize trial counsel as ineffective when his strategy was formulated without the luxury of knowing the result of the chosen strategy. It is much easier to fault counsel on his chosen strategy after reviewing all the evidence and observing how the witnesses withstood the rigors of cross-examination. Therefore, in reviewing trial counsel’s strategy, we must place ourselves in the position of trial counsel 'at the time the strategy was formulated to determine if the alternatives chosen were reasonable.
The Appellant contends that his trial counsel was ineffective for advising him to plead guilty to second degree murder in Indiana County with a delay in sentencing to avoid such conviction being considered as an aggravating circumstance in the penalty phase of the Westmoreland County case. Rather than deeming trial counsel’s actions ineffective, we find it was a reasonable attempt to prevent an almost certainty from occurring. If the Appellant had been tried on May 19,1980 as scheduled, there is no question that the prosecutor could have offered sufficient evidence to warrant a guilty verdict. This is clear from a review of the guilty plea colloquy. Thus, a conviction and. sentencing would have occurred prior to the trial in Westmoreland County. Accordingly, under any interpretation of § 9711(d)(10) of the Sentencing Code, 42 Pa.C.S.A. § 9711(d)(10), the Appellant’s conviction would be admissible in the Westmoreland County case as an aggravating circumstance. Trial counsel attempted to avoid this certainty by preventing sentencing until the Westmoreland County case was completed. It was hoped that by following this course, the Westmoreland County judge would disallow the Indiana County guilty plea from being introduced in the penal phase of the trial as an aggravating circumstance, because no sentence had been imposed in Indiana County. However, the Westmoreland County trial judge correctly determined that the plea was admissible. Although trial counsel’s strategy failed, he cannot be deemed ineffective. Having determined that trial counsel’s actions were reasonable and designed to protect the Appellant’s interests, it is clear that these actions cannot be deemed ineffective.
Finally, the Appellant asserts that the lower court erred in refusing to allow him to withdraw his guilty plea. The Appellant argues that the lower court applied an incorrect standard in determining whether to permit the Appellant to withdraw his guilty plea.
In Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), we held that the proper standard to be used for permitting a defendant to withdraw his guilty plea prior to sentencing is whether a fair and just reason exists. If the trial court finds any fair and just reason for the withdrawal, such withdrawal should be permitted because of the importance of an accused’s rights to a trial by his peers. However, once a sentence has been imposed, an accused should be permitted to withdraw his guilty plea only “to correct a manifest injustice”. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). The basis for the difference between these two standards is clear. Allowing an accused to withdraw his guilty plea after imposition of sentence requires a stricter standard to prevent defendants from using a guilty plea as a tool for previewing the sentencing by the court. Such a misuse does not occur when withdrawing a guilty plea prior to sentencing.
The lower court applied the “manifest injustice” standard, reasoning that the Appellant was pre-advised of the only possible sentence. Therefore, the Appellant’s petition was akin to a post-sentencing petition. Because the Appellant was well aware of the only sentence imposable for the crime to which he pled guilty, we find no error in applying the “manifest injustice” standard. In any event, applying the “fair and just reason” standard will not give the Appellant the requested relief.
The reasons offered by the Appellant in support of his motion to withdraw his guilty plea were that his guilty plea was motivated by an illegal arrest and subsequent confession and that the Indiana County District Attorney breached the plea bargain agreement by testifying in the Appellant’s Westmoreland County trial. The Appellant argues that by the terms of the agreement, the Indiana County conviction could not be used in his Westmoreland County trial. We have reviewed the record and find no such agreement. The agreement provided that sentence not be imposed until June 2 or later. At no time did the District Attorney agree not to testify in Westmoreland County and only did so in lieu of being subpoenaed. Therefore, the plea bargain agreement was not breached.
For the foregoing reasons, it is clear that the lower court did not abuse its discretion in not allowing the Appellant to withdraw his guilty plea.
Judgment affirmed.
The case in Westmoreland County was Commonwealth v. Lesko, 502 Pa. 474, 467 A.2d 288.
The Appellant argues that trial counsel was ineffective because he failed to correctly interpret “conviction” as used in the Sentencing Code, the Act of September 13, 1978, P.L. 756 No. 141 § 1, as amended 1980, October 5, P.L. 693 No. 142, § 401(a). This issue is discussed in the related case of Commonwealth v. Lesko, 502 Pa. 474, 467 A.2d 288 (1983).
Commonwealth v. Lesko, 502 Pa. 474, 467 A.2d 288 (1983).
The Appellant’s argument that the guilty plea was motivated “as a result of his illegal arrest and subsequent confession” is also without merit for the reasons set forth in the related appeal cited at 502 Pa. 474, 467 A.2d 288 (1983).
501 A.2d 200
COMMONWEALTH of Pennsylvania, Appellee, v. John Charles LESKO, Appellant.
Supreme Court of Pennsylvania.
Argued Sept. 16, 1985.
Decided Nov. 12, 1985.
Rabe F. Marsh, III (court-appointed), Greensburg, Welsh S. White, Pittsburgh, for appellant.
John J. Driscoll, Dist. Atty., John W. Peck, Greensburg, for appellee.
Before NIX, C.J., and LARSEN, McDERMOTT, ZAPPA-LA and PAPADAKOS, JJ.
[OPINION BY HUTCHINSON, Justice. type=majority]
OPINION OF THE COURT
HUTCHINSON, Justice.
John Charles Lesko, appellant, appealed to us a Westmoreland County Common Pleas order denying his petition for post-conviction relief from that court’s death sentence without a hearing. After filing his appeal in this Court, he asked us to transfer the record to Superior Court, claiming that we lacked initial appellate jurisdiction oyer post-conviction appeals in capital cases. On the merits, asserting breach of a plea bargain, he contends Westmoreland County Common Pleas erred in holding that his right to withdraw his guilty plea to a related murder had been finally determined against him by us in Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1982), on direct appeal from the Court of Common Pleas of Indiana County, the court with initial jurisdiction over that related murder. He also contends that he has been denied adequate appellate review on the proportionality of his sentence and that the trial judge’s instructions to the Westmoreland County sentencing jury not to be swayed by sympathy for either his victim or appellant himself violated the requirement of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1977), that an “individualized decision is essential in capital cases” because “the uniqueness of the individual is far more important than in noncapital cases.” 438 U.S. 586, 605, 98 S.Ct. 2954, 2965.
We now hold that under the present version of our Post-Conviction Hearing Act, Act of May 13, 1982, P.L. 417, 42 Pa.C.S. § 9541-9551, appeals of Common Pleas decisions are within Superior Court’s jurisdiction, and that this method of appeal is not in conflict with either Section 722 of the Judicial Code, 42 Pa.C.S. § 722, relating to our jurisdiction on direct appeals from Common Pleas, or Section 9711(h) of the Sentencing Code, 42 Pa.C.S. § 9711(h), relating to our automatic review of death sentences. Nevertheless, because of the uncertainty surrounding this jurisdictional issue of first impression, its importance in the administration of our death penalty act and the uncertainties further delay would impose in this case, we will accept appellant’s appeal and, instead of transferring it to Superior Court pursuant to 42 Pa.C.S. § 5103(a), retain jurisdiction here under 42 Pa.C.S. § 726. Since we have already decided all the issues raised in this collateral proceeding against appellant in either his direct appeal from his Westmoreland County conviction and sentence or his appeal from the Indiana County Common Pleas’ denial of his petition to withdraw his guilty plea to the murder of William Nicholls, and no extraordinary circumstances have been averred or found by us, the issues appellant raises on this appeal are unavailable to him as grounds for post-conviction relief under Section 9544 of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9544. We therefore rule against him on the merits. Having so ruled, and having thoroughly reviewed all aspects of the record relating to his conviction and sentence in his direct appeals, we affirm Common Pleas.
After a Westmoreland County jury found appellant guilty of murder in the first degree in the ambush killing of police officer Leonard Miller, the Commonwealth called the District Attorney of Indiana County as a witness in the sentencing phase to show that appellant had entered a guilty plea to second degree murder in Indiana County Common Pleas to the killing of William Nicholls in that county after Nicholls had been abducted and robbed. This testimony was presented to establish one of the aggravating circumstances which our death penalty statute permits a jury to consider in deciding whether a person which it has found guilty of first degree murder should be sentenced to death or life imprisonment. The particular aggravating circumstance as to which appellant’s Indiana County plea was relevant is Section 971!(d)(10) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(10), a conviction of “another ... offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable____” Murder in the second degree, felony murder, here based on the robbery of Nicholls, is a crime for which a sentence of life imprisonment is mandatory. Section 1102 of the Crimes Code, 18 Pa.C.S. § 1102. The record in the guilt phase of appellant’s trial for the killing of Miller in Westmoreland County shows, independently of the testimony of the Indiana District Attorney and the records he identified at the sentencing phase, that appellant and others had abducted Nicholls in Nicholls’s own car in Allegheny County and forced him to drive with them out of town, after appellant’s Westmoreland County co-defendant, Michael Travaglia, had shot Nicholls in the arm. Abusing Nicholls along the way, they went to a lake in Indiana County, where they bound and gagged Nicholls and weighted him with rocks. So trussed and weighted, they carried him to the lake, broke the ice on it and threw him into water over his head. Still in Nicholls’s car, with his belongings and a gun which connected them to another killing which occurred within a week of the killings of Nicholls and Miller and to a series of robberies of convenience stores in Indiana and Westmoreland Counties within the same time frame, appellant and his accomplice encountered Officer Miller, enticed him into a chase, pulled over and killed him as he approached their stopped vehicle.
This Court provided appellant with the automatic review which the law requires of us in capital cases in his direct appeal from his conviction and death sentence in the killing of Officer Miller. That review is mandatory under Section 9711(h) of the Sentencing Code, 42 Pa.C.S. § 9711(h).
The jurisdictional basis for the automatic review required by Section 9711(h) of the Sentencing Code is provided by Section 722(4) of the Judicial Code, 42 Pa.C.S. § 722(4). Section 722 gives this Court “exclusive jurisdiction of appeals from final orders of the courts of common pleas” in certain specified classes of cases. Subsection (4) includes in those classes “[ajutomatic review of sentences as provided by 42 Pa.C.S. § 9711(h) (relating to review of death sentence).”
Prior to the Act of September 23, 1980, P.L. 686, No. 137, § 1, effective November 22, 1980 (Act 137 of 1980), Section 722 of the Judicial Code included among the classes of cases within our exclusive jurisdiction, under the former version of its subsection (1), “Felonious homicide.”
In Commonwealth v. Fauntroy, 475 Pa. 287, 380 A.2d 357 (1977), we had interpreted Section 202 of our repealed Appellate Court Jurisdiction Act, which was identical in language with the former version of Section 722(1) of the Judicial Code, as giving us exclusive jurisdiction not only of direct appeals in cases of felonious homicide, but also of appeals in post-conviction proceedings concerning them.
However, Section 722(1) of the Judicial Code now grants us exclusive jurisdiction only over “matters prescribed by general rule.” Judicial power over collateral post-conviction review of criminal proceedings was specifically granted by the legislature under the Act of December 20, 1982, P.L. 1409, No. 326, Art. II, § 201, effective February 18, 1983; 42 Pa.C.S. § 9501. It provides:
§ 9501. Procedures, motions and other matters.
Except as otherwise provided by this chapter all post-trial procedures, motions and other matters relating to any criminal proceeding shall be conducted in the manner, at the' times, on the terms and conditions and in the form prescribed by general rules.
Rules implementing this statute have been adopted as Chapter 1500 of our Rules of Criminal Procedure, Pa.R. Crim.P. 1501-1507. Rule 1507 expressly suspends the Post-Conviction Hearing Act of 1982, 42 Pa.C.S. § 9541-9551, insofar as it is inconsistent with the rules. Neither the rules themselves nor the 1982 Post-Conviction Hearing Act expressly provide for appellate jurisdiction.
However, Section 742 of the Judicial Code, 42 Pa.C.S. § 742, relating to appeals from courts of common pleas in cases not entrusted to us provides:
§ 742. Appeals from courts of common pleas.
The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.
Act No. 137 of 1980, which amended Section 722 of the Judicial Code into its present form, had as a prime purpose relieving this Court of the burden of dealing with all appeals in cases of felonious homicide, including the repeated appeals such cases often generated under the Post-Conviction Hearing Act and converted this Court into one with primarily discretionary appellate jurisdiction. It had as its prime mover former Chief Justice Michael Eagan, who labored intensely in educating the bar, the public and the legislature on the adverse effect the burden of often frivolous appeals and reappeals was having on our ability to discharge our administrative and supervisory powers as governing authority of the unified judicial system, along with our rule making function and our prime judicial duty of clearly and carefully delineating the law of this Commonwealth in areas of general import in which its meaning or application was in dispute. Recognizing the increased burden the removal of these and other matters from our jurisdiction would have on Superior Court, the legislature had passed the Act of June 11, 1980, P.L. 213, No. 63, 42 Pa.C.S. § 541, increasing the size of Superior Court from seven to fifteen members. In Act 137, the legislature was also careful to rewrite Section 722(4) of the Judicial Code to insure by explicit requirement that an automatic, searching and independent review of all death sentences would be available in this Court on a mandatory basis, in accordance with Section 9711(h) of the Sentencing Code. As stated, this appellant has had such a review.
For us to conclude that either this appellant, others sentenced to death or the Commonwealth itself have a right to appeal to us final orders of the courts of common pleas in collateral attacks on death sentences by post-conviction proceedings would not, to our mind, further the legislative purpose in passing the 1980 amendments to both the Judicial Code and the Post-Conviction Hearing Act. The development of any issues appropriately raised on collateral attack is, we believe, better left to the normal appellate process under Section 742 of the Judicial Code. In that manner, attempts to relitigate questions we have already decided can be screened and new or unseen issues not finally litigated or waived fully explored. When such new issues arise, which should rarely occur because of the broad and searching review we make on direct appeal, they can be considered in this Court on petition of either party, addressed to our discretionary jurisdiction under Section 724 of the Judicial Code. Thus, any significant issue of statewide import can be fully considered here on a discretionary basis. The remedies available under the Post-Conviction Hearing Act are derivative of those available under the ancient writ of habeas corpus. That writ was always available in the lower courts. We therefore see no anomaly in permitting them to consider, in the first instance, whether collateral relief is available under Section 9543 of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9543. Those few capital cases which involve issues which we have not considered and which, therefore, remain open under the Act, are subject to the normal process of full appellate review in Superior Court and discretionary review here.
Considering the legislative history and purpose behind Act No. 137 of 1980, which included the amendment to Section 722 of the Judicial Code deleting the category of felonious homicides from our exclusive appellate jurisdiction, and the fact that we have not utilized the present version of § 722(1) to adopt a general rule providing for our exclusive jurisdiction in collateral attacks on death sentences, we conclude that they are not normally within it, but instead encompassed within the appellate jurisdiction of Superior Court under Section 742 of the Judicial Code, as appeals “from final orders of the courts of common pleas, ... [not] within the exclusive [appellate] jurisdiction of the Supreme Court or the Commonwealth Court.”
However, because the appropriate resolution of this appellate jurisdiction issue is a matter of first impression which was not free of doubt, appellant’s initial action in filing his appeal from the denial of post-conviction relief with us was not unreasonable. In dealing with it, we have had the benefit of full briefing and argument on the issues he raises on the merits. Therefore, in this particular case, it seems to us that a transfer back to Superior Court without a decision on the merits would be a wasteful use of judicial resources and only serve to prolong the cruel apprehension which the repeated appeals and delays of our legal system imposes. Both the convicted murderer and society have a right to a thoughtful, but reasonably prompt, disposition of these cases. With those thoughts in mind, exercising the power the legislature has given us in Section 726 of the Judicial Code, we deny appellant’s application to transfer this particular case.
Proceeding to a consideration of the merits of this appeal, we agree with the Westmoreland County Court of Common Pleas that appellant’s petition for post-conviction relief must be denied. Our Post-Conviction Hearing Act provides: “To be eligible for relief under [it], a person ... must prove ... (4) That the error resulting in his conviction and sentence has not been finally litigated or waived.” 42 Pa.C.S. § 9543(4).
With respect to hearings, it specifically states:
§ 9549. Hearing on petition.
(b) When not required. — The court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.
42 Pa.C.S. § 9549(b). The Post-Conviction Hearing Act further provides: “... an issue is finally litigated if: ... (3) The Supreme Court has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(3). We have so ruled on two of the three issues raised by appellant. The remaining issue, involving Lockett v. Ohio, supra, if not finally determined, was waived under Section 9544(b) of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9544(b).
In Commonwealth v. Travaglia, 502 Pa. 474, 503, 467 A.2d 288, 303 (1983), we addressed the proportionality issue as required by our death penalty statute, Section 9711 (h)(3)(iii) of the Sentencing Code, 42 Pa.C.S. § 971 l(h)(3)(iii), and expressly held the imposition of the death sentence upon appellant was not excessive or disproportionate. In that connection, we said:
We have searched the records of these cases available to this Court for information as to the character of the defendants (e.g. intelligence, family background, psychiatric history, previous criminal record), and the circumstances, both aggravating and mitigating, of their crimes. We find that the sentence of death is not excessive or disproportionate to the penalty imposed in these similar cases.
502 Pa. at 505, 467 A.2d at 304.
Appellant attempts to avoid this holding with the argument that we failed to consider the fact that his co-defendant, Travaglia, was the trigger man in the killing of Officer Miller and that the imposition of a death sentence on appellant, as a mere accomplice, would be disproportionate. This is merely a different way of raising the proportionality issue. As such, it does not avoid our final holding that the death penalty imposed on him was neither “excessive or disproportionate.” See Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973). Besides, his argument implies that imposition of a death sentence on the killer precludes the imposition of the same penalty on any of his accomplices. We have already rejected the argument that a death sentence for a co-defendant who did not do the actual killing is disproportionate when the killer himself received a sentence of imprisonment. Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984). We would therefore reject appellant’s argument on the proportionality issue even if our holding on direct appeal and the statute itself did not preclude it as a ground for relief in this collateral proceeding.
Appellant’s argument that the trial court erred in its instruction to the jury to disregard sympathy was not directly dealt with in our opinion on his direct appeal. Nevertheless, it was available to him and no extraordinary circumstances are referred to which would justify his not raising it then. See Section 9544(b)(2) of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9544(b)(2); Commonwealth v. Pfaff, 496 Pa. 572, 437 A.2d 1188 (1981). Moreover, Lockett v. Ohio, supra, on which he relies, had already been decided. Therefore, he cannot claim “[t]he abridgement ... of ... a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right.” Section 9543(3)(xii) of the Post-Conviction Hearing Act, 42 Pa.C.S. § 9543(3)(xii). The Act provides in this respect:
§ 9544. When an issue is finally litigated or waived.
(b) Issued waived. — For the purposes of this subchapter, an issue is waived if:
(1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption. — There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
42 Pa.C.S. § 9544(b) and (c). Appellant makes no assertion of ineffectiveness nor of any other extraordinary circumstance which would justify present consideration of this issue. Indeed, counsel at oral argument both here and on direct appeal expressly disclaimed any charge of ineffectiveness. The record indicates such a contention would be difficult to sustain under the standards of ineffectiveness set out either in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1982). We would therefore be justified in holding this issue was waived. However, rather than relying on either waiver or analogy, we will treat it on the merits, as a new argument. So treated, we reject it for the following reasons.
Read as a whole, the trial judge’s charge fully and fairly presented to the jury its duty to consider and weigh the aggravating factors which accompanied this killing against all mitigating factors, including the broad mitigation provision of Section 9711(e) of the Sentencing Code, 42 Pa.C.S. § 9711(e)(8). That section provides that “[mjitigating circumstances shall include the following: ... (8) [a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” 42 Pa.C.S. § 9711(e)(8). This last mitigating factor constituted the legislative response to our decision in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), holding a former version of the death penalty statute unconstitutional on reasoning analogous to Lockett.
We believe that the presentation of that mitigating factor to the jury as part of the trial judge’s charge, satisfies Lockett. We have carefully reviewed the opinions of the California Supreme Court with respect to this issue in People v. Lanphear, 36 Cal.3d 163, 680 P.2d 1081, 203 Cal.Rptr. 122 (1984), and People v. Easley, 34 Cal.3d 858, 671 P.2d 813, 196 Cal.Rptr. 309 (1983), and find them unpersuasive.
Appellant’s main argument is that the use of his Indiana County guilty plea to second degree murder for the killing of Nicholls as an aggravating circumstance in the killing of Officer Miller violated the plea bargain on which it was based. That issue was also determined adversely to him in his appeal from the denial of his petition to withdraw the Indiana County guilty plea. Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983). Again, his present argument is a variant on the same issue, as considered in that case. In it, we held that the fact he had not yet been sentenced for the Nicholls murder did not preclude use of his guilty plea as evidence of the aggravating circumstance defined at Section 9711(d)(10) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(10), in the Miller killing and that his counsel was not ineffective in permitting him to enter it. There we said:
In the lower court opinion, the trial judge found that ‘the evidence established: that the defendant entered his plea of guilty to second degree murder upon agreement of the Commonwealth to delay sentencing as a deliberate choice of trial strategy in an effort to prevent evidence of his criminal acts in Indiana County from being considered as an aggravating circumstance during his first degree murder trial for killing a Westmoreland County police officer.’ (R. 51). The Appellant agrees with this finding and now argues that his trial counsel was ineffective for persuading him to plead guilty in that trial counsel’s conception of the use of this plea in the Westmoreland County case was in error. Because it appears that the action of the Appellant’s trial counsel was a calculated attempt to avoid the use of any Indiana County conviction in the Westmoreland County case as an aggravating circumstance, trial counsel cannot be deemed to be ineffective.
____ It was hoped that by following this course, the Westmoreland County judge would disallow the Indiana County guilty plea from being introduced in the penal phase of the trial as an aggravating circumstance, because no sentence had been imposed in Indiana County. However, the Westmoreland County trial judge correctly determined that the plea was admissible. Although.trial counsel’s strategy failed, he cannot be deemed ineffective. Having determined that trial counsel’s actions were reasonable and designed to protect the Appellant’s interests, it is clear that these actions cannot be deemed ineffective.
502 Pa. at 514-16, 467 A.2d at 308-10 (footnotes omitted).
Appellant now argues that this holding is not a final determination of the issue because he “believed” the terms of the bargain would preclude use of the Nicholls killing as an aggravating circumstance at the sentencing phase of his trial for the murder of Officer Miller. In the words of his counsel at the hearing on the petition to withdraw, he claims there was an “implicit” condition that the plea would not be used against him in the upcoming Westmoreland County trial.
The bargain, which was recorded as part of the transcript on the guilty plea, includes no such condition.
THE COURT: Now, Mr. Armstrong, has there been a plea bargain in this case?
MR. ARMSTRONG: Yes.
THE COURT: Would you tell me what it is?
MR. ARMSTRONG: Yes. At No. 35, the Commonwealth has agreed to dismiss the complicity charges. And also under # 63 Crim. 1980, has agreed to dismiss the robbery and under # 64 Crim. 1980, they have agreed to dismiss the robbery charges.
THE COURT: In other words, all of the charges at # 63 and # 64 Crim. 1980, would be dismissed and the complicity charge at # 35 Crim. 1980, would be dismissed upon the [Appellant’s] agreement to enter a plea of guilty to murder of the second degree?
MR. ARMSTRONG: Yes. And also that the sentencing would be passed in late June.
THE COURT: And these robbery charges at # 63 and # 64 Crim. 1980, and the complicity charge at # 35 Crim. 1980, would be nol prossed just before sentencing; is that correct?
MR. ARMSTRONG: That is my understanding.
MR. MARTIN: That is correct, your Honor.
BY THE COURT:
Q. All right. Have you understood the conversation between your attorney and the District Attorney and myself?
A. Yes.
Q. In other words, you’re promising to enter a plea of guilty to murder of the second degree which carries a penalty of life imprisonment and in exchange to that the Commonwealth agrees to drop all of the charges of # 63 Crim. 1980 and # 64 Crim. 1980 and also the complicity charge at # 35 Crim. 1980, and that would be done at the time of sentencing. And sentencing is not to take place until the end of June or later; is that correct?
MR. ARMSTRONG: We had talked about late June, your Honor, but the date wasn’t set.
BY THE COURT:
Q. Do you understand that?
A. Yes.
Q. And is that your understanding of the agreement?
A. Yes.
N.T. May 19, 1980 at 31-33. At sentencing, this bargain was fully kept, as shown by the judgment of sentence.
The guilty plea itself was accompanied by an extensive colloquy at a hearing which required 40 pages to record. In it, the presiding judge painstakingly explained to appellant all of his rights, inquired exhaustively into the factual basis for the plea and the terms of the plea bargain. Nowhere is there any objective hint of an agreement that this plea would not be used in evidence if relevant. Appellant’s counsel in those proceedings did not deny this. He said only that such a condition was “implicit.” At the hearing on the petition to withdraw it, the District Attorney expressly denied any such implicit agreement. He said:
BY MR. MARTIN:
Q. Now, are you familiar with the plea negotiations which took place before and on May 19, 1980?
A. I am.
Q. What is your understanding of that plea arrangement?
A. My understanding of the arrangement is this that the Commonwealth agreed to nol pros a complicity charge, to nol pros the robbery charges in return for a plea of guilty to murder in the second degree. On the day of sentencing Mr. Armstrong approached me and it is my recollection that he asked me if sentencing could be deferred until after the Miller trial in Westmoreland County. I didn’t object to that.
Q. Why?
A. There were two reasons. First, I knew that a plea of murder in the second degree would carry a mandatory life sentence and second I also knew that Mr. Lesko was incarcerated awaiting trials in both counties, Indiana and Westmoreland, and I believe that he would remain incarcerated and there wasn’t a matter of any consequence to me when he was sentenced in Indiana County since he was going to remain in jail.
Q. Now, was there any expressed promise made by you or anyone in the District Attorney’s Office that this plea that was entered in Indiana County would not be used in Westmoreland County or any other county?
A. There was no discussion at all concerning the use of this plea in any other county and there was certainly no promise from me whether it would or would not be used.
N.T. April 28, 1981 at 37-38, 39-40. On cross-examination, the Indiana County District Attorney again denied any implicit understanding.
All of appellant’s rights were fully protected in connection with the entry of this plea. The record on the petition to withdraw it fully supports the court’s refusal to do so. We affirmed that refusal on direct appeal. The terms of the bargain do not contain the agreement appellant now says he “believed” was “implicit” in it. In this connection, the Indiana County Court of Common Pleas said:
The defendant’s argument that this explicit promise by the Commonwealth carried with it an implied promise of later non-use of the plea in other trials is without merit in view of the fact that if the defendant had intended non-use of his plea to be central to his bargain he would have made it part of the bargain. Commonwealth v. Scott, Pa.Super., [271 Pa.Super. 545] 414 A.2d 388, at 390 (1979); United States v. Miller, 565 F.2d 1273, at 1275 (3rd. Cir.1977).
Common Pleas slip op. at 7-8.
We agree with that statement. Indeed, in dealing with the finality of this issue, we can do no better than to quote the reasons given by Judge Early of the Indiana County Court of Common Pleas in his opinion denying appellant’s petition to withdraw this guilty plea.
The instant case points to the basic problem of the entire criminal justice system, i.e., the problem that no case is ever finally resolved. The liberal allowance of withdrawals of pleas of guilty for less than significant reasons amounting to manifest injustice permits criminal defendants to manipulate the courts at the cost of public trust and great financial expense to the taxpayer. In addition, a plea colloquy adhering to the criteria of our statutes and case law renders the reasons for liberally allowing withdrawal of pleas by defendants nugatory because the very purpose of such plea colloquys is to assure that the defendant enters his plea knowingly, voluntarily, and intelligently. Commonwealth v. Sutton, 474 Pa. 582, 379 A.2d 107 (1977); Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, at 1632 [52 L.Ed.2d 136] (1977).
The plea is conducted in open court where the defendant is assisted by his attorney and where the Court conducts an extensive give and take with the defendant, who is under oath,____ The defendant is provided with a detailed explanation of the elements of each crime charged. In addition, he is apprised of his right to file posttrial motions and that his right to appeal will be limited if he enters a plea of guilty. He is asked about any plea bargain, the bargain is reviewed, and the defendant is informed that if a breach of the bargain occurs he may withdraw his plea; he is further informed of the maximum limits of any sentence that may be imposed on him by virtue of his plea regarding incarceration and fines. The defendant is then cautioned to listen to the prosecutions’ [sic] factual basis for the charges against him and informed that he may challenge any fact recited by the prosecution that he does not agree with.
In the instant case, the Court complied with all of these criteria and on numerous occasions the [appellant] admitted in open court under oath that he understood that by his plea he was admitting that in the course of a robbery of his victim he intentionally bound the victim, kicked the ice loose from the surface of the dam and tossed in the victim, leaving him to drown. Plea colloquy, at 27, at 32-33, at 34, at 38, at 39-40.
Common Pleas slip op. at 13-15.
Affirmed.
PAPADAKOS, J., files a concurring opinion in which McDERMOTT, J., joins.
FLAHERTY, J., did not participate in the consideration or decision of this case.
[OPINION BY PAPADAKOS, Justice, PER CURIAM: type=concurrence]
PAPADAKOS, Justice,
concurring.
I join in the reasoning and mandate of the Majority but write separately to express my belief that appeals of Common Pleas decisions in petitions filed under the Post-Conviction Hearing Act in death penalty cases are within our exclusive jurisdiction as part of the automatic review of death sentences imposed upon us by the legislature in Section 9711(h) of the Sentencing Code, 42 Pa.C.S. § 9711(h).
McDERMOTT, J., joins in this concurring opinion.
ORDER
PER CURIAM:
AND NOW, this 12th day of November, 1985, in view of appellant’s right to file an application for reargument, Pa.R. A.P. 2541 et seq., execution of sentence is stayed pending the filing and consideration of the application for reargument.
Appellant’s direct appeal was consolidated with that of his co-defendant and is reported at Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1982).
See Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1982).
The Sentencing Code provides in pertinent part: (h) Review of death sentence.— (1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules. (2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence. (3) The Supreme Court shall affirm the sentence of death unless it determines 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 an 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).
Act of July 31, 1970, P.L. 673, art. II, § 202, formerly 17 P.S. § 211.202.
Section 9543 sets forth the substantive bases for post-conviction relief.
Pa.R.Crim.P. 1504, relating to summary dispositions without the appointment of counsel is consonant with this section.
The charge in this regard was as follows: Now, the verdict is for you, members of the jury. Remember and consider all of the evidence, giving it the weight to which you deem it is entitled. Your decision should not be based on sympathy, because sympathy could improperly sway you into one decision— into a decision imposing the death sentence, or could improperly sway you against the decision of imposing the death sentence. There is sympathy on both sides of that issue. Sympathy is not an aggravating circumstance; it is not a mitigating circumstance. N.T. January 31, 1981, Sentencing Hearing at 1706.
An analogous issue, raised in connection with his claim of prosecutorial misconduct, was dealt with and rejected when we stated: It is clear from reading this argument as a whole that the prosecutor was seeking to remind the jury that sympathy was not a proper consideration, but that if they were inclined to be sympathetic they should temper their sympathy____ This was not an improper argument for the prosecutor to have made. Commonwealth v. Travaglia, 502 Pa. at 501, 467 A.2d at 301.
See N.T. January 31, 1981 Sentencing Hearing at 1704.
At sentencing, the court ordered: AND NOW, June 22, 1981, the defendant having entered a plea of guilty to the offense of criminal homicide classified as murder in the second degree, the sentence being mandated by statute to life imprisonment, the defendant is sentenced as follows: That he pay the costs of the prosecution in the amount of two hundred eighty-three dollars and sixty cents [$283.60]; that he shall pay a fine to the Commonwealth of Pennsylvania for the use of Indiana County in the amount of one hundred dollars [$100]; and that he shall undergo imprisonment for the remainder of his natural life in a state correctional institution. For purposes of this sentence he shall be transported by the Sheriff of. Indiana County to the Western Diagnostic and Classification Center located at the State Correctional Institution in Pittsburgh, Pennsylvania. Credit is to be given on this sentence for any time served by the defendant John Charles Lesko because of this offense. N.T. June 22, 1981 at 4-5.
506 A.2d 897
COMMONWEALTH of Pennsylvania v. John Charles LESKO, Appellant.
Supreme Court of Pennsylvania.
April 2, 1986.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
The Application for Reargument is denied.
The matters raised by appellant as pending before the United States Supreme Court have already been fully considered by this Court, either during appellant’s direct appeal or his post conviction proceeding.
With respect to counsel’s contention that this Court considered matters outside the record in determining the “appropriateness or proportionality” of the death sentence, we first remind counsel that the transcript of the trial is not the whole record. Our present recitation of the facts, which does not differ from the statement by this Court on direct appeal, was drawn from the record and presented to provide a complete picture of the events which occurred. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983).
Moreover, the facts taken from the suppression record were not and could not be considered by us in dealing with the proportionality issue. In considering the proportionality of appellant’s sentence, this Court looked only at the mitigating and aggravating circumstances which were considered by the jury in reaching its decision. These factors, all of which were part of the trial transcript, were sufficient for us to determine that appellant’s sentence was not disproportionate to the penalty imposed in similar cases. See Commonwealth v. Travaglia, 502 Pa. at 504-05, 467 Pa. at 303-04.
FLAHERTY, J., did not participate in the consideration or decision of this case.
661 A.2d 352
COMMONWEALTH of Pennsylvania, Appellee v. Michael J. TRAVAGLIA, Appellant.
Supreme Court of Pennsylvania.
Submitted July 8, 1994.
Decided June 23, 1995.
Reargument Denied Aug. 21, 1995.
Jerry S. McDevitt, Jeffrey T. Barbour, Pittsburgh, for M.J. Travaglia.
John J. Driscoll, Greensburg, John Peck, Arnold, for Com.
Robert A. Graci, Harrisburg, for Com./A.G.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.
[OPINION BY CAPPY, Justice. type=majority]
OPINION OF THE COURT
CAPPY, Justice.
This is a direct appeal from the final orders of the Court of Common Pleas of Westmoreland County denying Appellant’s motion for disqualification of the Honorable Gilfert Mihalich and denying Appellant’s second petition for post-conviction relief. For the reasons discussed below, we affirm the Orders of the trial court.
Appellant and his codefendant, John C. Lesko, were tried jointly for the murder of Apollo Police Officer Leonard Miller at a trial presided over by Judge Mihalich. The jury convicted both defendants of first degree murder and conspiracy to commit criminal homicide; both defendants were sentenced to death. This Court affirmed Appellant’s conviction and judgment of sentence. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, Travaglia v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984) (“Travaglia I”).
In 1985, Appellant filed a petition under the Post Conviction Hearing Act (“PCHA”). Relief was denied, and the Superior Court affirmed. Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (1986). This Court denied allocatur. Commonwealth v. Travaglia, 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, Travaglia v. Pennsylvania, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989) (“Travaglia II”).
On June 8, 1990, Governor Robert P. Casey signed a warrant for Appellant’s execution. A stay was granted by the Honorable Alan M. Bloch of the United States District Court for the Western District of Pennsylvania on September 6, 1990, to allow Appellant to investigate and seek habeas corpus relief.
In May 1991, Appellant filed his second post conviction appeal, this time under the Post Conviction Relief Act (“PCRA”). Appellant also filed a motion for disqualification of Judge Mihalich. The motion for disqualification as well as the petition for post-conviction relief were denied. This appeal followed.
To be eligible for post-conviction relief, an appellant must establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the errors or defects listed in § 9543(a)(2), and that the issues he raises have not been previously litigated. An issue has been previously litigated if the highest appellate court in which an appellant could have had review has ruled on the merits of the issue, or the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. § 9544. If the allegations of error have not been finally litigated, the PCRA also requires that an appellant demonstrate that these allegations of error have not been waived or that, if waived, the conditions in either § 9543(a)(3)(h) or (hi) have been met.
Appellant raises several claims of constitutional error, including a plethora of ineffective assistance of counsel claims. To establish an ineffective assistance of counsel claim, appellant must first demonstrate that the underlying claim is of arguable merit; then, that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate Appellant’s interest; and, finally, that but for the act or omission in question, the outcome of the proceedings would have been different. Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (1994); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant bears the burden of proving all three prongs of this standard. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992). If it is clear that Appellant has not met the prejudice prong of the ineffectiveness standard, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984).
Before we address Appellant’s claims, we note that this is Appellant’s second collateral attack. We have held that a “second or subsequent petition for post-conviction relief will not be entertained ‘unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.’ ” Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1099 (1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988).) This standard is met if Appellant can “demonstrate either: (a) that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (b) that he is innocent of the crimes charged.” Szuchon, 534 Pa. at 487, 633 A.2d at 1100. Since Appellant does not assert that he is innocent, relief will be granted only if he can establish that the proceedings below “were so unfair that a miscarriage of justice occurred which no civilized society can tolerate.” It is with awareness of this standard that we proceed to consider Appellant’s claims.
Appellant alleges that there were errors at the guilt and sentencing phases of his trial, and that these errors (individually and cumulatively) made his trial “fundamentally unfair,” such that he was denied due process in violation of the Fourteenth Amendment of the United States Constitution. See Lisenba v. People of the State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 289-90, 86 L.Ed. 166 (1941). Appellant also raises numerous claims of ineffectiveness of counsel, many of which are linked with his due process claims.
I. Alleged Errors in the Guilt Phase of Travaglia I
A. Issues Related to Evidence of the Nicholls Homicide
At the guilt phase of trial, R.R., a prosecution witness, testified as to criminal acts of Appellant and Lesko which were not included in the crimes charged at bar. These criminal acts centered on the abduction and eventual murder of William Nicholls, events which occurred a few days before Officer Miller was killed. On direct appeal, we found that this evidence was properly admitted to show that the motive and intent of Appellant and Lesko to kill Officer Miller was to avoid detection of the Nicholls murder. Travaglia I, 502 Pa. at 492-494, 467 A.2d at 296-298. Appellant now raises several issues related to the admission of evidence of the Nicholls murder.
First, Appellant alleges that the Commonwealth misled him into believing that it would not introduce evidence concerning the Nicholls murder. Appellant alleges he was thus deprived of effective voir dire because he did not ask potential jurors whether they would be prejudiced by this information; Appellant also alleges that because he was misled, he was unfairly surprised by R.’s testimony. These issues are meritless.
To support his contention that the Commonwealth misled him, Appellant focuses on comments made by Lesko’s attorney and the district attorney at a pre-trial conference held on May 30, 1980. Appellant directs our attention to that portion of the record where Lesko’s attorney stated that he had spoken “with the district attorney, shallowly, but it’s apparently the position of the district attorney that each homicide [the Nicholls and Miller homicides] is to be the subject of a separate trial. There is no connection between — no legal connection between the various homicides.” (Trans., May 30, 1980, at p. 28). The district attorney attempted to reply, but was interrupted by Appellant’s counsel. The prosecutor then said:
MR. GEARY (district attorney): Well, unfortunately, the murder of Mr. Nicholls is not being tried with this case. However, a police officer was shot in the line of duty, and we think the fact that the defendants were in a stolen car and were carrying identification papers from the individual who owned the car (Mr. Nicholls) is relevant to the issue of motive and intent.
Trans., May 30, 1980, p. 29. The trial court then interjected, stating that it would not address the issue of admissibility of this evidence at that time.
We do not agree that this interchange establishes, as Appellant contends, that the Commonwealth misled Appellant into believing that it did not intend to introduce evidence of the Nicholls murder. Rather, the Commonwealth plainly stated that it considered such evidence relevant to prove motive and intent. Furthermore, a review of the record makes it clear that the prosecutor did not attempt to mislead Appellant. Appellant’s claims that he was denied effective voir dire and was unfairly surprised because the prosecutor misled him are thus meritless.
Appellant also raises related ineffective assistance of counsel claims. He alleges that his trial counsel, Dante Bertram, was ineffective in failing to pursue on appeal these issues related to the Commonwealth misleading him. Since we have determined that the underlying issues are meritless, Appellant’s related ineffective assistance of counsel claims also fail. Counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 224, 495 A.2d 183, 189 (1985).
Appellant next argues that R.’s statement at trial that Lesko’s and Appellant’s actions in killing Nieholls seemed to him “like something they did all the time” (N.T., Vol. I, at p. 367) was prejudicial error. On direct appeal, this Court considered this statement and concluded that if it were error, it was harmless in view of the record and the trial court’s immediate cautionary instructions. Travaglia I, 502 Pa. at 494, 467 A.2d at 298.
Appellant now tries to bootstrap this argument by stating that the prosecutor intentionally solicited this comment so that Appellant was denied due process. This claim has no merit. Mr. R.’s statement came as a response to the prosecutor’s question as to how Appellant and Lesko were acting when they recounted the details of the Nieholls murder. Instead of relating what he saw, R. gave his interpretation as to why Appellant and Lesko were acting the way they were. There is no evidence of record that the prosecutor intentionally solicited inadmissible testimony, and thus this claim fails. Appellant’s related claim that counsel was ineffective for failing to pursue this issue on appeal also fails since Appellant has not shown that the underlying claim has any merit.
Third, Appellant alleges that counsel was ineffective for failing to raise other legal theories as to why R.’s testimony could not be admitted to prove motive and intent. Again, we note that this Court held on direct appeal that evidence of the Nieholls murder was properly admitted to prove motive and intent. Travaglia I, supra. Appellant now attempts to relitigate this previously determined issue under the cloak of an ineffectiveness of counsel claim; we have held that such an attempt to relitigate previously settled claims will not be tolerated. Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121, 123 (1994); Commonwealth v. Wilson, 452 Pa. 376, 378-379, 305 A.2d 9, 10-11 (1973). Thus, this claim of ineffectiveness fails.
B. Issues Related to Lesko’s and Appellant’s Confessions
Appellant raises several due process and ineffectiveness of counsel claims in relation to the admission of his confession and Lesko’s confession.
First, Appellant objects to a portion of Lesko’s confession where Lesko stated that they had sped by Officer Miller to draw Officer Miller’s attention “[s]o he’d be chasing us, and that there, and the car was fast and that — we’d lose him and could go knock off the Stop-N-Go.” N.T., Vol. I, at p. 617. Appellant contends that this evidence of a robbery motive violated his Sixth Amendment rights as per Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
In Bruton, the United States Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment when his non-testifying codefendant’s confession implicates defendant as a coparticipant in the crime. Bruton was tempered by Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), where the Court held that the harmless error doctrine applies to Bruton violations. The Schneble harmless error doctrine states that where the evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, reversal is not required. Id.; see also Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536 (1990).
Assuming arguendo that this was error, it was certainly harmless. The jury had before it Appellant’s confession as well as R.’s testimony as to the killing of Officer Miller. Any prejudice arising from the attribution of an alternate potential motive for the killing of Officer Miller was insignificant when compared to the overwhelming evidence of guilt.
Appellant also contends that counsel was ineffective for failing to pursue this Bruton issue on appeal. As per Strickland, supra, the prejudice prong of the ineffectiveness of counsel test may, in the interest of judicial economy, be analyzed first. Here, Appellant has not satisfied the prejudice prong because he has not shown that without the attribution of another potential motive to kill Officer Miller, the verdict would have been different.
Second, Appellant claims that his counsel was ineffective for failing to request that an instruction be given contemporaneous with the admission of Lesko’s confession that the confession could not be used against Appellant. Such an instruction was given when the jury was charged. N.T., Yol. II, at p. 1264. Appellant has not shown that he was prejudiced by having the proper instruction given at the charge, instead of when Lesko’s redacted confession was read into evidence. Thus, Appellant’s ineffectiveness claim fails.
Third, Appellant alleges that his own confession was improperly redacted, and that he was thus denied a fair trial. In this claim, he focuses on his account of the second shot fired at Officer Miller. Appellant had confessed that after he fired the first shot, “[t]he individual beside me says hit him again, and as impulse, I shot again.” To protect Lesko’s rights under Bruton, that statement was redacted so that it read: “I shot again.”
Appellant claims that the portion of the statement that was deleted was exculpatory, and that deleting it undercut his defense as to the second shot he fired at Officer Miller. Appellant’s defense to the second shot was that his prolonged drug use had altered his mental state to such a degree that he was incapable of forming specific intent to kill. This is, as the PCRA court correctly denoted it, a “diminished capacity” defense. Appellant argues that the redacted phrase would have shown that he fired the second shot impulsively, and this showing would have bolstered his argument that he lacked the specific intent to kill. We disagree.
We have consistently held that evidence that defendant lacked the ability to control his actions, or that he acted impulsively, will not establish diminished capacity. Zettlemoyer, 500 Pa. at 39, 454 A.2d at 949. See also Commonwealth v. Terry, 501 Pa. 626, 632, 462 A.2d 676, 679-680 (1983); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Since Appellant’s diminished capacity defense could not be properly supported by the argument that he could not control his actions and acted impulsively, the redaction of a phrase which Appellant claims was relevant to establishing this illegitimate theory can not be said to have denied Appellant a fair trial. This issue thus has no merit. Furthermore, because this issue is meritless, Appellant’s claim that counsel was ineffective in failing to pursue this issue on appeal fails the first prong of Pierce.
C. Issues Related to Appellant’s Proffered Testimony
Appellant contends that the trial court “coercively precluded” him from testifying in his own behalf, and that his counsel was ineffective for not pursuing this issue in post-trial motions.
During the guilt phase, Appellant desired to testify that the second shot he fired at Officer Miller was not intentional, but was an impulsive response brought on by drug abuse; Appellant wanted to limit his testimony to his drug use and the circumstances of the second shot fired at Miller. The Commonwealth asserted that Appellant could be cross-examined on relevant matters, including that the motive and intent for Officer Miller’s murder was to avoid the detection of the Nicholls murder; the trial court ruled in the Commonwealth’s favor. Appellant claims this ruling “coercively precluded” him from testifying.
The trial court was correct in its ruling, and cannot be characterized as “coercively precluding” Appellant from testifying. The right of cross-examination extends beyond the subjects testified to in direct testimony and includes the right to examine a witness on any facts tending to refute inferences or deductions arising from matters testified to on direct examination. Commonwealth v. Dobrolenski, 460 Pa. 630, 641, 334 A.2d 268, 273 (1975) (citing Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967).) Since Appellant wanted to testify that he lacked the intent to shoot Officer Miller, questions about whether he intended to kill Officer Miller in order to avoid detection of the Nicholls murder would thus be a proper subject of cross-examination. Thus, Appellant’s claim is meritless. Furthermore, since this claim is meritless, Appellant’s related ineffectiveness of counsel issue also fails as he has not met the first prong of the Pierce standard.
D. Issues Related to the Prosecutor’s Closing Argument
Appellant alleges that he was denied due process when the prosecutor engaged in misconduct at closing argument, and when the trial court failed to correct the prosecutor promptly and adequately. Appellant also alleges that his counsel was ineffective either for failing to object to these statements, or for failing to pursue these issues on appeal. In assessing a claim of prosecutorial misconduct, we must
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.
Commonwealth v. Chester, 526 Pa. 578, 599, 587 A.2d 1367, 1377 (1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991) (citations omitted). See also Baker, 531 Pa. at 557, 614 A.2d at 671 (the Commonwealth is allowed to press its case with “logical force and vigor.”)
Appellant first objects to the prosecutor’s statements that there is a presumption that if an individual shoots at a vital part of body, that individual intended to kill the victim. Appellant correctly asserts that this is an improper statement of law. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Appellant asserts that such a misstatement constitutes prosecutorial misconduct, and his counsel was ineffective for failing to object to request an immediate cautionary instruction. We disagree.
At the charge, the trial court corrected the prosecutor’s misstatement, and correctly instructed the jury that
[t]he law prescribes that when one uses a deadly weapon upon the body of another at some vital part of that body, with a manifest intention to use it on him, it can be reasonably inferred by the jury that the person so using the deadly weapon knew that his act was likely to cause death and that death was a probable and ordinary consequence of his act.
N.T., Vol. II, at p. 1280. Furthermore, the judge cautioned the jury to take the law from him and not from the attorneys. N.T., Vol. II, at p. 1257. The error was cured by the court’s proper instruction on the law, and we cannot say that this error prejudiced the jury, forming in their minds fixed bias and hostility toward the accused. Chester, supra, at 578, 587 A.2d at 1367. Thus, Appellant’s prosecutorial misconduct claim fails.
Appellant also claims that in giving the above listed charge, the judge misled the jury when he did not stress that “manifest intention” was a critical component of the test. This argument is specious. There is no need for a court to emphasize any portion of a correct charge. The presumption in our law is that the jury follows instructions. Commonwealth v. Stoltzfus, 462 Pa. 43, 55, 337 A.2d 873, 879 (1975).
Next, Appellant contends that the prosecutor misstated R.’s testimony in his closing argument. In his closing argument, the prosecutor argued that Appellant’s defense of accidentally shooting Officer Miller did not dovetail with R.’s testimony. The prosecutor stated that “[R.] said he saw the gun between the seats and it was pointed” immediately before Appellant shot Officer Miller. N.T., Vol. II, at p. 1229. Furthermore, the prosecutor noted that R. had not testified that .Appellant had stated that the shooting was an accident.
The prosecutor’s statements cannot be characterized as a false account of R.’s testimony. R. testified that he had sat in the back seat of the car and saw the gun as Appellant, who was in the front seat, held it; then, he saw a flash as Appellant fired the first shot. N.T., Vol. I, at p. 372. Likewise, the prosecutor’s statement that R. had not testified that Appellant had stated that the shooting was an accident was not prosecutorial misconduct; indeed, R. did not indicate that Appellant claimed that the shooting was an accident. These statements cannot be characterized as misstatements of the evidence, and they also could not have had the unavoidable effect of prejudicing the jury. See Chester, supra, at 578, 587 A.2d 1367.
Appellant also alleges that the prosecutor acted improperly when he argued that Appellant’s desire to avoid detection of the Nicholls murder was a motive to ldll Officer Miller. As discussed above, this Court decided on direct appeal that evidence of the Nicholls murder was properly admitted to prove motive and intent. Travaglia I, supra, 502 Pa. 474, 467 A.2d 288. The prosecutor did not engage in misconduct merely by referring to properly admitted evidence.
Lastly, Appellant alleges that the prosecutor engaged in misconduct in referring to the section of Appellant’s redacted confession pertaining to the second shot fired at Officer Miller. Appellant alleges that without the “as impulse” language, such a reference by the prosecutor was prejudicial as it undercut his diminished capacity defense. As stated above, the redaction of the “as impulse” language was not error. In referring to this portion of the confession, the prosecutor was not engaging in misconduct.
Linked with each of these allegations of prosecutorial misconduct are claims that trial counsel was ineffective for failing to pursue these claims on appeal; all of these claims fail. Appellant has not established that the prosecutor exceeded the bounds of reasonable advocacy, and thus the underlying claims do not have merit; without such a showing, Appellant has not satisfied the first prong of the Pierce standard. See Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199, 208 (1994).
II. Alleged Errors at the Penalty Phase of Travaglia I
A. Introduction of the Indiana County Guilty Plea
At the sentencing phase of trial, the Commonwealth introduced Appellant’s guilty plea in Indiana County for the murder of Nicholls to establish an aggravating circumstance.
Appellant alleges that this was improper. Appellant asserts that in exchange for his guilty plea in Indiana County, a non-use agreement was struck whereby the prosecutor in Indiana County agreed that Appellant’s plea would not be introduced in the Westmoreland County trial.
Appellant raised this issue in his PCHA Petition. The guilty plea colloquy contained no mention of such an agreement; the court heard testimony from the parties involved in the Indiana County guilty plea to determine if such an agreement was made off the record. At the PCHA hearing, the court heard testimony from the judge who presided over the Indiana County proceedings, from attorneys involved in the proceedings, and from Appellant himself. Subsequently, the PCHA court determined that there was no non-use agreement, and therefore the introduction of the Indiana County guilty plea at the sentencing phase of the Westmoreland County trial was proper. The Superior Court affirmed this determination. Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (1986). We denied allocatur. Commonwealth v. Travaglia, 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, Travaglia v. Pennsylvania, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989). Thus, this issue has been fully litigated and is nonreviewable under the PCRA.
A determination that an issue has been previously litigated would usually mark the end of our review of a PCRA claim. In this instance, however, we believe that additional explanation is warranted in light of the proceedings in federal court pertaining to Appellant’s codefendant, Lesko.
Lesko petitioned in federal court for a writ of habeas corpus. He, like Appellant, raised the issue of an alleged non-use agreement. Lesko, tmlike Appellant, did not receive a state court hearing on this issue. The Third Circuit thus remanded to the district court so that a factual determination could be made as to whether Lesko had a non-use agreement in effect. Lesko v. Lehman, 925 F.2d 1527, 1540 (3d Cir.1991). On remand, the district court concluded that there had been a non-use agreement. Lesko v. Lehman, (1992 WL 717815) 1992 U.S.Dist. Lexis 1123 (W.D.Pa.1992). Appellant now asserts that the determination of the district court as to the existence of a non-use agreement somehow overrules the determination of our state courts. We disagree.
Both the 1985 PCHA court and the Lesko federal district court resolved a factual dispute: whether a non-use agreement had indeed been struck in Indiana County. The 1985 PCHA court concluded that a non-use agreement was not in existence; the district court came to the opposite conclusion. Similar, nearly identical, records can legitimately support two different holdings; that two different holdings may result from similar records does not mean that one determination is somehow invalid. Cf. Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977). A factual determination by a federal district court in no way “overturns” the factual determination made by, and subsequently affirmed by, the courts of our Commonwealth.
Finally, Appellant alleges that he received ineffective assistance of counsel when his trial counsel did not request an immediate evidentiary hearing as to whether there was a non-use agreement. Appellant has not established that the result would have been different had his counsel made such a request at trial, rather than raising it in the PCHA petition; thus, Appellant fails to meet the third prong of Pierce.
B. Issues Relating to Mitigation Evidence
To establish the mitigating circumstance that he did not have a significant history of prior convictions, Appellant desired to introduce a report from the National Crime Information Center (“NCIC”) documenting that he did not have any prior convictions. The prosecutor objected to the admission of this report, and the trial court sustained the objection. Appellant complains that this constituted prosecutorial misconduct and judicial error.
The court, in ruling on the objection, analyzed this document to determine whether it was within the business records exception to the hearsay rule. The trial court refused to admit the report because Appellant did not present anyone who could testify as to the preparation or maintenance of the records kept by NCIC; the judge indicated that he was particularly concerned about the accuracy of the record because in his experience as a jurist, he had encountered inaccuracies in these types of reports. N.T., Vol. Ill, at pp. 1618-1619. The inability to confirm trustworthiness is a proper basis for refusing to admit a document as a business record. See 42 Pa.C.S. § 6108(b); Boyle v. Steiman, 429 Pa.Super. 1, 631 A.2d 1025 (1993). Thus, Appellant’s claim that the trial court erred is meritless. Furthermore, since this claim is meritless, Appellant’s assertion that counsel was ineffective for failing to pursue this claim on appeal also fails because he has not satisfied the first prong of the Pierce standard.
Appellant’s argument that the prosecutor engaged in misconduct when he objected to the admission of the NCIC report is similarly meritless. It was not misconduct for the prosecutor to object to the admission of this document, particularly since this objection had a legitimate basis. Additionally, because this claim of prosecutorial misconduct is meritless, Appellant’s related ineffectiveness of counsel claims also fail because he has not satisfied the first prong of the Pierce standard.
Next, Appellant alleges that the prosecutor engaged in misconduct in questioning one of Appellant’s witnesses. Appellant called the Clerk of Courts of Westmoreland County to testify that Appellant did not have a criminal record. On cross-examination, the prosecutor questioned the clerk and established that the records on which the clerk relied pertained only to Westmoreland County. Appellant asserts that this was tantamount to improperly misrepresenting the truth as the prosecutor’s questioning could have lead the jury to believe that Appellant had convictions outside of Westmoreland County. Contrary to Appellant’s assertion, the prosecutor did not “misrepresent” the truth; rather, he clarified the scope of the clerk’s purview. Furthermore, Appellant’s speculations ' as to what a jury could have believed are mere sophistry. See Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992) (appellate court will not speculate as to what the collective mind of the jury could have thought.) As a reviewing court, we do “not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury ... will draw that meaning from the plethora of less damaging interpretations.” Donnelly v. De-Christoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974). Because this issue is meritless, Appellant’s related ineffectiveness claim fails.
Next, Appellant alleges that the trial court improperly excluded evidence that he had suffered the hostility of his father and in general had a troubled family life. Appellant refers to the testimony of two of his witnesses, R.P. and E.P., some of which was determined to be inadmissible. Appellant states that failing to admit this proffered testimony violated Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
Appellant is correct in stating that an accused is allowed to present a broad range of evidence to establish a mitigating factor. The United States Supreme Court has held that where the death penalty is sought, the sentencer may not be precluded from considering, “as a mitigating factor, any aspect of a defendant’s character or record----” Id. at 4, 106 S.Ct. at 1670-71. Pennsylvania’s death penalty sentencing scheme also provides that the jury may consider “any other evidence of mitigation____” 42 Pa.C.S. § 9711(e)(8) (emphasis supplied). Yet, neither Skipper nor Pennsylvania’s sentencing scheme suspends the rules and law of evidence; the proffered evidence must be competent, or it may not be presented to the jury.
A review of the record indicates that the court was correct in ruling that portions of the P.s’ testimony was inadmissible. Portions of Mr. P.’s testimony were excluded when he attempted to testify as to how Appellant’s father treated Appellant, events of which Mr. P. had no personal knowledge; the court properly excluded this testimony as it was hearsay. As to Mrs. P., several of her answers were deemed inadmissible as they were non-responsive. As the testimony was properly excluded, Appellant’s claim is meritless.
Appellant also raises the claim that counsel was ineffective for failing to pursue on appeal the issue that he was improperly precluded from presenting mitigation evidence through the P.s. As the underlying issue has no merit, Appellant’s ineffectiveness claim fails.
C. Issues Related to the Prosecutor’s Closing Argument
Appellant raises several claims of prosecutorial misconduct during closing argument at sentencing phase. As stated above, 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. See Baker, supra. At the penalty phase, where the presumption of innocence is no longer applicable, the prosecutor is permitted even greater latitude in presenting argument. Id. The prosecutor may “present argument for or against the sentence of death” and may employ oratorical license and impassioned argument. Id. at 560, 614 A.2d at 671-672.
Appellant first alleges that the prosecutor engaged in misconduct when he remarked that Lesko did not express remorse for his victims when he took the stand at the sentencing hearing. Appellant notes that since the Third Circuit determined that this remark violated Lesko’s Fifth Amendment privilege against self-incrimination, then Appellant’s privilege against self-incrimination was also violated. This argument is specious. The prosecutor referred to Lesko by name in his remarks, and never made even the barest of allusions to Appellant in this section of his closing argument. A finding that Lesko’s privilege against self-incrimination was violated does not translate into finding that Appellant’s rights were also violated merely because Appellant and Lesko were tried together. Therefore, this first claim is meritless. Since the underlying claim is meritless, the related ineffectiveness claim also fails because Appellant has not satisfied the first prong of Pierce.
Next, Appellant alleges that the prosecutor’s remarks to the jury that they should show the same sympathy to Appellant as Appellant showed to Officer Miller on the day of the killing constituted prosecutorial misconduct as it was an appeal to vengeance. This issue has already been litigated. Travaglia I, 502 Pa. at 500-501 and 502-503, 467 A.2d at 301 and 302. Thus, Appellant may not obtain relief under the PCRA. 42 Pa.C.S. § 9543(a)(3). Since the underlying claim has already been litigated, Appellant’s related ineffectiveness of counsel claim also fails. See Peterkin, supra, 538 Pa. 455, 649 A.2d 121.
Appellant next asserts that the prosecutor engaged in misconduct when he argued that Appellant had not established the mitigating circumstance of “no significant history of prior convictions” since Appellant had shown only that he did not have a criminal record in Westmoreland County. The prosecutor’s argument here was proper, and thus Appellant’s argument fails. Appellant was required to establish any mitigating circumstances by a preponderance of the evidence. 42 Pa.C.S. § 9711(c)(l)(iii). This burden was for Appellant to carry, and argument on the part of the prosecution that Appellant had not met his statutory burden was not improper. Accordingly, Appellant’s related ineffectiveness of counsel claim also fails as the underlying claim has no merit.
Finally, Appellant alleges that the prosecutor engaged in misconduct when he suggested that the death penalty would be the only way to protect society against Appellant. In Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), we addressed a claim of prosecutorial misconduct that is similar to' the one presented to us now. At the sentencing phase in Christy, the prosecutor stated that society would be victimized again by the defendant if the defendant were not sentenced to death. Id. at 511, 515 A.2d at 843. We held that although a prosecutor’s statement may be inappropriate, the question to be asked is whether that statement prejudiced the jury such that they could not weigh the evidence and render a true verdict. Id. Recognizing that the prosecutor is permitted to argue in favor of the death penalty, we determined that the comment was no more than permissible “oratorical flair” in arguing for the death penalty, and did not prejudice the jury. Id. We see no reason to hold differently here. Furthermore, Appellant’s related ineffective assistance of counsel claim fails; as the prosecutor did not exceed the bounds of reasonable advocacy, trial counsel cannot be deemed ineffective for failing to pursue this issue on appeal. Blount, supra, at 156, 647 A.2d 199.
D. Issues Relating to the Trial Court Instructions
Appellant presents two arguments as to why the trial court’s instructions at sentencing were improper. First, Appellant alleges that the trial court’s instructions gave the jury the impression that they had to be unanimous to find a mitigating factor, and thus the charge violates Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). This first argument is specious.
The trial judge’s charge to the jury almost exactly mirrored 42 Pa.C.S. § 9711(c)(l)(iv). N.T., Vol. Ill, at pp. 1703 and 1706. We have held that this statutory language does not “state or infer a requirement that any given mitigating circumstance must be unanimously recognized before it can be weighed against aggravating circumstances in reaching a verdict.” Commonwealth v. Frey, 520 Pa. 338, 347, 554 A.2d 27, 31 (1989), cert. denied, 494 U.S. 1038, 110 S.Ct. 1500, 108 L.Ed.2d 635 (1990). An instruction that tracks the language of the statute, such as the one given here, cannot be in violation of the Mills standard. Id.
Second, Appellant states that the trial court erred when it gave this instruction:
“Now, the verdict is for you, members of the jury. Remember and consider all of the evidence, giving it the weight to which you deem it is entitled. Your decision should not be based on sympathy, because sympathy could improperly sway you into one decision — into a decision imposing the death sentence, or could improperly sway you against the decision of imposing the death sentence. There is sympathy on both sides of that issue. Sympathy is not an aggravating circumstances; it is not a mitigating circumstance.”
N.T., Vol. Ill, at p. 1706. This argument also lacks merit. We have held that the Pennsylvania death penalty statute does not permit a jury to avoid imposition of a death sentence through the exercise of unbridled discretion or sympathy. Commonwealth v. Rainey, 540 Pa. 220, 656 A.2d 1326 (1995); Commonwealth v. Zook, 532 Pa. 79, 104, 615 A.2d 1, 13 (1992). The trial court here properly instructed the jury as to its permissible scope of discretion.
Because neither of these claims has any merit, the related ineffective assistance of counsel claims also fail.
E. Allegation of Judicial Bias
Appellant alleges that Judge Mihalich revealed his bias by admitting evidence of the Nieholls homicide and of the guilty plea in Indiana County, and by his repeated adverse and erroneous rulings. Appellant concludes that this alleged bias deprived him of a fair trial. Appellant also alleges that counsel was ineffective for failing to move for the judge to recuse himself.
As discussed above, Appellant’s allegations of judicial error have been deemed meritless; simply because a judge rules against a defendant does not establish any bias on the part of the judge against that defendant. If the appellate court determines that the party alleging judicial bias received a fair trial, then the allegation of judicial bias is not borne out. See Reilly v. SEPTA 507 Pa. 204, 489 A.2d 1291 (1985). Thus, Appellant’s claim of judicial bias fails. Similarly, Appellant’s claim that counsel was ineffective for failing to move for the judge to recuse himself also fails; counsel cannot be deemed ineffective for failing to raise a meritless claim.
Finally, Appellant complains that the cumulative effect of errors made the trial so fundamentally unfair so as to deprive Appellant of due process. We disagree. We have determined, either on direct appeal or in this review of Appellant’s PCRA petition, that the overwhelming majority of Appellant’s claims are devoid of merit; no quantity of meritless issues can aggregate to form a denial of due process. On one issue we assumed, arguendo, that there was merit, but concluded that this alleged error could not have created a fundamentally unfair trial. The “aggregate” of one error would lead to the identical conclusion reached earlier: there was no denial of due process.
III. 1985 PCHA Hearing
Appellant claims that he was denied effective assistance of counsel at the PCHA hearing, and that the PCHA court committed several errors.
In order for Appellant to raise an ineffective assistance of counsel claim, Appellant must have a constitutional right to counsel at the phase of the proceeding in which he is alleging that counsel was ineffective. This Court recently adopted federal case law which held that under the United States Constitution, an accused does not have a right to counsel in state collateral proceedings. Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995). Thus, under federal law, Appellant’s claims that he received ineffective assistance of counsel at his PCHA hearing would be denied.
In the interest of giving a condemned man the benefit of every possible doubt, however, we will assume arguendo that the Pennsylvania Constitution would provide the right to counsel at a collateral attack, and thus would provide greater rights than does the federal constitution. Even with this assumption, however, Appellant would still not be entitled to relief as he has not established that his counsel was ineffective.
First, Appellant alleges that his PCHA counsel, Dante Bertram, was ineffective for failing to request recusal of Judge Mihalich since the judge was clearly biased at the guilt and sentencing phases of the trial. As discussed above, Appellant has not established that there was any merit to the claim that the judge was biased at his trial. Appellant’s counsel therefore cannot be deemed ineffective for failing to call for Judge Mihalich’s recusal since the underlying claim is without merit.
Second, Appellant alleges that it was “error” for Bertram to represent him at the PCHA hearing because it precluded Appellant from claiming that Bertram had been ineffective at his trial. This claim is without merit. As discussed above, Appellant has failed to establish any of his claims that he received ineffective assistance of counsel at trial; thus, Bertrani cannot be deemed ineffective for precluding Appellant from raising them at the PCHA hearing.
Third, Appellant claims Bertram was ineffective when he failed to call as witnesses Lesko’s Indiana County counsel, one of the prosecutor’s in the Indiana County proceedings, and Bertram himself. Without these witnesses, Appellant claims, he was not able to establish that there had been a non-use agreement.
At the PCHA hearing, the following witnesses testified as to their understanding of the Indiana County guilty plea arrangements: the judge who presided over the Nicholls homicide case in Indiana County; the two attorneys who represented Appellant in the Indiana County case; one of the attorneys who represented Appellant in the Westmoreland County trial; one of the two attorneys who had been assigned to prosecute the Nicholls homicide case, and Appellant himself. Appellant has not demonstrated how the result of the PCHA court would have been different if the court had the testimony from not only the witnesses the court did hear, but also had testimony from Martin and Armstrong, as well as additional testimony from Bertram. Without this showing, Appellant cannot meet the prejudice prong of an ineffectiveness claim.
Appellant next alleges that counsel was ineffective when counsel failed to brief the PCHA court on the legal standard for determining whether a non-use agreement was part of the plea bargain. In setting forth this ineffectiveness claim, Appellant has not established that he was prejudiced by this alleged error. The PCHA court reviewed the plea colloquy and the events leading up to and following the colloquy, and heard the testimony presented at the PCHA hearing. The court determined that, in light of all the evidence presented, the accounts given by Appellant and Appellant’s attorneys that there was an actual non-use agreement were not credible. Where an account of events is found to be not credible, it cannot possibly form the basis of a “reasonable belief;” thus, even if the standard had been properly briefed, Appellant has not established that the result would have been different. Appellant has thus failed to establish prejudice.
Appellant’s final claim of ineffectiveness was that Bertram was ineffective for failing to object to the admission of testimony concerning the prosecutor’s perspective on the non-use agreement. Appellant, relying on Alvarado, supra, at 442 Pa. 516, 276 A.2d 526, alleges that only Appellant’s interpretation of the plea agreement was relevant, and thus testimony from the prosecutor was “immaterial.” Appellant is incorrect; testimony from the prosecutor as to what happened during negotiations and as to what the agreement contained would certainly be relevant to the question of whether Appellant’s understanding was reasonable. A test of whether a person’s belief is reasonable necessitates looking at factors external to the person being examined — factors such as the observations of others privy to the plea agreement.
Appellant raises two claims that the PCHA court erred. First, Appellant alleges that it was error to appoint Bertram as counsel because Bertram was thus unable to testify as to the alleged non-use agreement and Appellant was unable to raise claims that Bertram had been ineffective at trial. This argument is specious.
In his PCHA petition, Appellant had the opportunity to mark that he wanted another attorney appointed to him. Instead, Appellant marked that he was represented by counsel and gave Bertram’s name. Appellant does not indicate that he ever informed the court that he desired alternate counsel. It is not incumbent upon the court to determine strategy for an appellant; furthermore, Appellant cannot now be heard to complain that the court erred merely because it granted that which Appellant had requested.
Second, Appellant alleges that it was error for the PCHA court to deny his request to amend his 1985 PCHA Petition. In the middle of the PCHA hearing, Appellant requested to amend his PCHA Petition and add an issue raising prosecutorial misconduct. Because the request was untimely, it was denied. There was no error.
IV. 1991 PCRA Petition
Appellant raises two issues relevant to his PCRA hearing. The first is that Judge Mihalich was biased, and should have recused himself. The second is that the judge issued an inadequate opinion.
Appellant alleges that Judge Mihalich demonstrated that he was biased through the rulings he made at guilt phase and sentencing phase, and also through statements Judge Mihalich made to the press subsequent to the PCHA hearing. As we stated above, the allegation that Judge Mihalich was biased at the sentencing and guilt phase is without foundation; the rulings which Appellant notes as being indicative of bias were all upheld on appeal. Furthermore, the manner in which Judge Mihalich presided over the PCHA hearing was proper. We now address Appellant’s allegations that the actions of Judge Mihalich subsequent to the trial and to the PCHA petition establish that Judge Mihalich was biased against him and should have recused himself at the PCRA hearing.
After Appellant’s trial and the conclusion of his first collateral attack, Judge Mihalich made a number of public statements concerning Appellant. We do not approve of members of the judiciary speaking to the press about cases pending before them; yet, a jurist who has made such ill-advised comments does not necessarily abuse his or her discretion when he denies a motion for his or her disqualification.
A motion for disqualification or recusal is properly directed to and decided by the jurist whose participation is challenged. Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989). In disposing of a recusal request, a jurist must first make a conscientious determination of his or her ability to assess the case before the court in an impartial manner, free of personal bias or interest in the outcome. “This is a personal and unreviewable decision that only the jurist can make.” Id. at 201, 565 A.2d at 764. Once satisfied with that self-examination, the jurist must then consider whether or not continued involvement in the case would tend to undermine public confidence in the judiciary. Id. at 201-202, 565 A.2d at 764. In reviewing a denial of a disqualification motion, we “recognize that our judges are honorable, fair and competent. Once the decision is made, it is final____” Reilly, 507 Pa. at 222, 489 A.2d at 1300.
Judge Mihalich, in a thoughtful opinion, detailed the examination of his conscience. He stated that “[t]o say that the Court is highly dissatisfied with the present system of perpetual appellate activity is not to say that the Court would vent its frustrations by arbitrarily giving [Appellant’s] current arguments less than the full and complete attention required by law.” Slip op., dated October 9, 1991, p. 10. Judge Mihalich candidly noted that the crime which Appellant committed was heinous, but observed that courts were often required to preside over cases where the subject matter is disturbing; the requirements of due process, he stated, are unaffected by such circumstances. The judge concluded by stating that he did not believe public confidence would be affected by him presiding over PCRA; Appellant’s motion for recusal was thus denied. Because we cannot find that this constituted an abuse of discretion, Appellant’s claim fails.
Appellant’s final claim is that the PCRA court’s opinion did not comport with Pa.R.Cr.P. Rule 1508(d)(3). That rule requires that a judge, at the conclusion of post-conviction relief hearing, “state on the record, or issue and serve upon the parties, findings of fact and conclusions of law on all material issues.” (emphasis supplied). Appellant seems to believe that it was error for the judge to decline to make individualized findings on Travaglia’s 174 findings of fact and 37 conclusions of law. We disagree, and hold that the thorough twenty-nine page opinion issued by Judge Mihalich satisfied the requirements of the rule. Appellant’s final claim is thus meritless.
For the foregoing reasons, the orders of the Court of Common Pleas of Westmoreland County are affirmed.
ZAPPALA, J., concurs in the result.
PAPADAKOS, J., did not participate in the consideration of this matter.
MONTEMURO, J., is sitting by designation.
This case was reassigned to this author.
In a death penalty case, the denial of post-conviction relief is directly reviewable by this Court. 42 Pa.C.S. § 9546(d).
42 Pa.C.S. § 9541 et seq.
Our standard of review in reviewing an order either granting or denying post-conviction relief is limited to examining whether the court’s determination is supported by evidence of record and whether it is free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 506, 424 A.2d 1302, 1305 (1981).
Only three provisions of 42 Pa.C.S. § 9543(a)(2) could have any application to this appeal: Section 9543(a)(2)(i), (a)(2)(h), and (a)(2)(v). The errors and defects listed in these sections refer to ineffective assistance of counsel and other violations of the United States or Pennsylvania constitutions.
Section 9543(a)(3) provides: That the allegation of error has not been previously litigated and one of the following applies: (i) The allegation of error has not been waived. (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual. (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief. We note, however, that it is this Court’s practice to address all issues arising in a death penalty case, irrespective of a finding of waiver. Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38 (1994).
Appellant pled guilty to second degree murder in Indiana County in relation to the Nicholls homicide.
We note that the redacted confession admitted into evidence did not name Appellant; any references to Appellant, or Appellant and Lesko, were generic references to "he” or "we” respectively.
Appellant raised separate defenses for the two shots that he fired at Officer Miller; he claimed that the first shot was an accident.
Diminished capacity is an extremely limited defense. Commonwealth v. Zettlemoyer, 500 Pa. 16, 28, 454 A.2d 937, 943 (1982). In asserting a diminished capacity defense, a defendant is attempting to prove that he was incapable of forming the specific intent to kill; if the defendant is successful, first degree murder is mitigated to third degree. Commonwealth v. Faulkner, 528 Pa. 57, 70, n. 4, 595 A.2d 28, 35, n. 4 (1991).
In these cases, we addressed whether expert testimony on impulsivity or lack of control was admissible to prove diminished capacity. We note that the application of these cases is not limited to the admissibility of expert testimony. We did not reject this testimony because the experts somehow lacked the competence to speak to such issues; rather, we rejected this testimony because establishing that the defendant could not control his actions or acted impulsively is irrelevant to establishing a diminished capacity defense. Clearly, irrelevant testimony remains irrelevant, regardless of the source from which it emanates.
We note that the PCRA court examined this claim under the Bruton principle and determined that there was no Bruton violation. This was not the proper way to analyze this issue. Appellant’s claim is indeed in reference to a redacted confession, which might tend to make one believe that Bruton is implicated; yet, this is Appellant’s own confession which is in question. Bruton, which protects a defendant’s rights to confront adverse witnesses as per the Confrontation Clause, would have no application here.
In Sandstrom, the Court found that such a conclusive presumption shifts the burden to the defendant to disprove an element of the crime of which he stands charged; it was held that shifting the burden violates an accused’s due process rights to have the state prove every element of a criminal offense beyond a reasonable doubt. The Sandstrom Court did observe that an instruction does not violate the due process clause where the jury is informed that an inference may be drawn about defendant’s intent from his actions.
42 Pa.C.S. § 9711(a), (d)(10) states that a conviction of a federal or state offense, “committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable,” is an aggravating circumstance which may support the imposition of the death penalty. Second degree murder is such an offense.
To further support his contention that we are bound by the decisions of federal courts inferior to the United States Supreme Court, Appellant cites to Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 620, n. 5, 375 A.2d 1285, 1288, n. 5 (1977). Appellant states that in Schreiber, this Court has agreed to be bound by Third Circuit determinations that certain acts or practices violate federal constitutional rights. Such a holding, however, would have no application here. Both the 1985 PCHA court and the federal district court resolved a factual matter, and not a matter of constitutional law. Furthermore, even though Schreiber is inapplicable here, we now note that the validity of this case is seriously questioned to the extent that it can be read to stand for the proposition that this Court is bound by federal courts inferior to the United States Supreme Court. We will, of course, continue to turn to the decisions of the Third Circuit for guidance on issues of federal constitutional law where the U.S. Supreme Court has not spoken on an issue in question.
42 Pa.C.S. § 9711(e)(1).
This exception is codified at 42 Pa.C.S. § 6108.
Appellant also seems to be of the belief that the prosecutor engaged in misconduct when he refused to stipulate that Appellant lacked a prior criminal history. Appellant is incorrect. A party is not required, nor can it be required by a court, to stipulate to a portion of an opposing party's case. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982).
This evidence was relevant to establish the mitigating circumstance of 42 Pa.C.S. § 9711(e)(8) (the jury may consider "[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of the offense.”)
The court did allow Mr. P. to testify as to Appellant’s state-of-mind concerning Appellant’s father. See N.T., Vol. Ill, at p. 1562.
We note that Appellant’s mother and aunt both testified as to Appellant’s poor relationship with his father and his troubled family life.
42 Pa.C.S. § 9711(a)(3).
The Third Circuit found this Fifth Amendment violation, of all the alleged errors, to be the one that was "particularly troubl[ing].” Lesko v. Lehman, 925 F.2d 1527, 1541 (1991).
Appellant objects to the following passage in the prosecutor’s closing: "So I'll say this: Show them sympathy. If you feel that way, be sympathetic. Exhibit the same sympathy that was exhibited by these men on January 3, 1980. No more. No more. I want you to remember this: we have a death penalty for a reason. Right now the score is John Lesko and Michael Travaglia two, society nothing, When will it stop? Who is going to make it stop? Who is going to make it stop? That is your duty."
We are cognizant of the fact that the Third Circuit's interpretation of these comments varied from this Court's interpretation in Travaglia I. See Lesko, supra. We note, however, that even if the federal Lesko holding were somehow applicable to Appellant's PCRA claim, Appellant would still not be entitled to relief. In Lesko, the Third Circuit determined that the prosecutor had twice engaged in misconduct: first, when he violated Lesko's Fifth Amendment privilege against self-incrimination; second, when he told the jury to show Lesko the same sympathy Lesko showed Officer Miller. It was the Fifth Amendment violation that "particularly troubled” the Third Circuit. Lesko, 925 F.2d at 1541. The court concluded that these two instances of inappropriate comments by the prosecutor could not be deemed harmless error given that the Commonwealth's aggravating evidence was counterbalanced by Lesko’s "considerable" mitigation evidence. The court listed as its first example of this “considerable" mitigation evidence the fact that Lesko, not being the trigger man, had a relatively minor role in the homicide. Id. at 1546-1547. Appellant is situated quite differently. First, as discussed above, his privilege against self-incrimination was not violated. Without having the violation which "particularly troubled” the Third Circuit, it cannot be argued that Appellant is similarly situated. Second, Appellant’s mitigation evidence was not as "considerable” as Lesko's. As the trigger man, Appellant's role in the homicide could never be described as minor. Thus, two factors which the Third Circuit panel found critical to its decision to grant Lesko a new sentencing hearing are not present in Appellant’s case.
The statement to which Appellant objects is as follows: "What will make the killing stop? Will prison guards? These men killed a police officer in the line of duty. What will make them stop from killing again? What’s going to stop them from spilling more innocent blood? You have to exercise society’s right to protect itself. That’s why we have a death penalty; that’s why we still have a death penalty.” T.T. at p. 1700.
In Mills, the Court held that where there is a substantial probability that reasonable jurors could understand that they must unanimously find a mitigating factor before they could consider it in weighing aggravating circumstances against mitigating circumstances, the sentence must be vacated. See also Commonwealth v. Billa, 521 Pa. 168, 186, 555 A.2d 835, 844 (1989).
This issue was related to the redaction of Lesko’s confession discussed at section I.B., supra.
We stress that we are assuming this point only for the sake of argument. We are in no fashion now deciding the issue of whether the Pennsylvania Constitution gives an appellant a right to counsel at a collateral proceeding.
Bertram was also Appellant’s trial counsel.
We assume that Appellant is raising an ineffectiveness of counsel claim here, although he has not denoted it as such and has not analyzed it under the Pierce standard.
Although Bertram was not called as a witness, he did testify as to the alleged non-use agreement as "an officer of the court.” PCHA Hearing Trans, at pp. 8-13. The Commonwealth did not object to this statement, and thus it was before the PCHA court.
Appellant states that the proper standard for determining the content of a plea agreement is examining what the defendant reasonably believed the agreement to contain. See Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971).
The court noted that two defense attorneys "vividly remember what is helpful to [Appellant's] contention and have convenient amnesia about those matters which would be adverse to Defendant’s position." PCHA court slip op. at p. 13.
Appellant did not indicate in his PCHA petition that he was challenging Bertram’s effectiveness as counsel.
We note that these issues of prosecutorial misconduct were ultimately raised in Appellant’s 1991 PCRA petition. We have addressed these issues above, and found them to be meritless.
Appellant directs our attention to several newspaper articles in which Judge Mihalich had been quoted. In many of these articles, Judge Mihalich employed Appellant's case as an example of how cumbersome and protracted the appeals process can be where the appellant has been sentenced to death. Below are excerpts from those articles: "If it takes seven years, a half-dozen appeals and hundreds of thousands of taxpayers’ dollars to determine if the murderer of a policeman and three other individuals received a fair trial, something is drastically wrong with our system." Pittsburgh Post-Gazette, May 4, 1988. "If it takes approximately 10 years to determine whether or not I gave them a fair trial, there’s something wrong with the judicial system....” Greensburg Tribune Review, Section B, January 9, 1990. "I am shocked that it takes 11 years in our judicial system to find an excuse to avoid the death penalty. If anyone deserves to die, these two individuals (Appellant and Lesko) do for killing four people for fun.” Valley News Dispatch, February 14, 1991. Judge Mihalich made a final comment to the press after Appellant filed his PCRA petition. Judge Mihalich was quoted as stating, “I know I am not biased, I know that I gave them a fair trial. I know that I could give them (sic) a fair hearing on their (sic) present petition.” Valley News Dispatch, May 3, 1991.
In fact, by making such comments, the jurist could be seen as being in violation of the Code of Judicial Conduct. See Canon 3A(6) ("[a] judge should abstain from public comment about a pending proceeding in any court.... ”)
The Prothonotary of the Supreme Court is directed to transmit the complete record of this case back to the Governor. 42 Pa.C.S. § 97110).
COMMONWEALTH of Pennsylvania, Appellee, v. John Charles LESKO, Appellant.
Supreme Court of Pennsylvania.
Submitted Sept. 15, 1997.
Decided May 21, 1998.
Rabe F. Marsh, III, Greensburg, Paul G. Kay, Pittsburgh, for John Lesko.
John Peck, Greensburg, Robert A. Graci, Harrisburg, for Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
[OPINION BY FLAHERTY, Chief Justice. type=majority]
OPINION OF THE COURT
FLAHERTY, Chief Justice.
In 1981, the appellant, John Charles Lesko, was convicted of murder of the first degree and conspiracy and sentenced to death for the killing of a police officer, Leonard C. Miller. Appellate and post-conviction review of the conviction and sentence resulted in the exhaustion of state remedies and the denial of certiorari by the Supreme Court of the United States. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (Pa. 1983) (direct appeal), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547 (1984); Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (Pa.1985) (post-conviction review), reargument denied, 509 Pa. 625, 506 A.2d 897 (Pa.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987). In subsequent habeas corpus proceedings, the sentence of death was reversed by the United States Court of Appeals for the Third Circuit on the basis that improper prosecutorial comments made during the penalty phase of trial had tainted the jury’s sentencing decision. Lesko v. Lehman, 925 F.2d 1527 (3d Cir.1991), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991). The case was remanded to federal district court to resolve an evidentiary issue relevant to resentencing. Id. In 1995, a resentencing proceeding was held in the Court of Common Pleas of Westmoreland County. Appellant was again sentenced to death. The present appeal ensued.
Appellant’s first contention is that, in 1991, when his initial sentence of death was reversed, a remand for imposition of a sentence of life imprisonment should have followed. Under the sentencing statute that was previously in effect, a remand for imposition of a sentence of life imprisonment would indeed have been required. Commonwealth v. Wharton, 542 Pa. 83, 665 A.2d 458, 460 (Pa.1995), cert. denied, 517 U.S. 1247, 116 S.Ct. 2504 (1996); Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313, 1316 (Pa.1993). However, the statute was amended in 1988 to provide that a new sentencing hearing must be conducted whenever a sentence of death is vacated, except where it is vacated for disproportionality or lack of evidence of aggravating factors. 42 Pa.C.S. § 9711(h)(4). Appellant argues that his due process and ex post facto rights under the federal and state constitutions were violated by subjecting him to resentencing under the amended statute. The same arguments have already been rejected by this court. We have repeatedly held that the revised sentencing provision can be applied to cases, like appellant’s, that were pending in the appellate process at the time of the amendment. Commonwealth v. Wharton, 665 A.2d at 460; Commonwealth v. Young, 637 A.2d at 1316-18 (no violation of ex post facto clause). See also Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 100-02 (Pa.1996) (no denial of due process), cert. denied, — U.S. -, 118 S.Ct. 90 (1997).
Appellant further asserts that the resentencing provision does not apply where a death sentence has been vacated by any court other than the Supreme Court of Pennsylvania. He relies on the following language in 42 Pa.C.S. § 9711(h)(4): “If the Supreme Court determines that the death penalty must be vacated for any other reason [i.e., reasons other than disproportionality or lack of evidence of aggravating circumstances], it shall remand for a new sentencing hearing pursuant to subsections (a) through (g).” Appellant reasons that because the statute does not specify what is to occur when courts other than this one vacate a sentence, the legislature must have intended that there would be no new sentencing hearing and that a remand for imposition of a life sentence would occur. Such an approach would lead, however, to a highly irrational sentencing scheme. Those whose sentences are vacated by this court would be in a far worse position than those whose sentences are vacated by other courts, since the former would be at risk of incurring another death sentence while the latter would not. The legislature cannot be deemed to have intended such an illogical result. See 1 Pa.C.S. § 1922(1) (presumption that the legislature did not intend a result that is absurd or unreasonable).
Further, appellant asserts that the resentencing provision is inapplicable to cases that were pending before any court other than the Supreme Court of Pennsylvania at the time of the 1988 amendment. Appellant notes that, because we completed appellate and post-conviction review of this matter in 1986, this case was not pending before us at the time of the 1988 amendment. The statute contains no language, however, that makes it applicable only to cases pending in a particular court. In fact, the legislature expressly designated that the amendment should be applied to “all criminal cases and appeals pending on the effective date of this act.” Act of 1988, Dec. 21, P.L. 1862, No. 179, § 3 (emphasis added). This plainly sets no limits as to the courts in which cases and appeals were pending.
Appellant next contends that it was error to allow the Commonwealth to introduce evidence of two other murder convictions as aggravating circumstances for the present murder, inasmuch as evidence of the other convictions was not introduced at the original sentencing proceeding. We do not agree. The other murders, namely those in which Peter Levato and Marlene Sue Newcomer were victims, were committed prior to appellant’s trial in this case. No trials in the other cases had yet taken place. Hence, the convictions were simply not available for use at appellant’s original sentencing hearing. Regardless, it is well established that the Commonwealth may introduce new aggravating factors in the penalty phase of a second capital murder trial without providing an excuse for not having presented those factors in the first trial. Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1, 19-21 (Pa.1992), cert.denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993).
Appellant also asserts that allowing admission of the other convictions serves to reward the Commonwealth for prior misconduct in that there would have been no second penalty hearing and therefore no use of the other convictions if the Commonwealth had not made improper remarks at the previous hearing. In reversing appellant’s sentence of death, the United States Court of Appeals for the Third Circuit held that certain remarks by the Commonwealth at the penalty hearing had tainted the sentencing determination. However, there was absolutely no indication that the remarks were viewed as being so intentional and egregious as to constitute misconduct. Lesko, 925 F.2d at 1540-46. See generally Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (Pa.1992) (intentional prosecutorial misconduct). In fact, it was only when the remarks were considered cumulatively that habeas corpus relief was deemed warranted at all. Id. at 1541, 1546. Appellant’s assertion is without merit.
It is next alleged that the trial court erred in dismissing a juror for cause. The juror, A.S., asked the following question while she was undergoing voir dire by the Commonwealth regarding her ability to render a verdict of death: “In the State of Pennsylvania if a person is granted or is sentenced to life in prison, is that with the proviso there is no parole possible?” Defense counsel nodded his head in the affirmative and proclaimed, “The judge will charge the jury that life imprisonment in Pennsylvania is without parole.” The Commonwealth immediately challenged the accuracy of this remark. The court responded by telling S. that life imprisonment “has no requirement of parole,” and added that the matter could not be explained any further at that time.
A challenge for cause was made by the Commonwealth. The court sustained the challenge on the basis that the information conveyed to S. by defense counsel was information that other jurors might or might not receive during the sentencing hearing. The court noted that the question of whether, and under what circumstances, jurors should be instructed that a life sentence means life without parole had not yet been resolved by Pennsylvania courts. A trial court’s decision to discharge a juror will not be reversed absent a palpable abuse of discretion. Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786, 790 (Pa.1994). No such abuse is evident here, inasmuch as the court’s action was a mere precaution designed to assure that the jury would not be tainted by the information that defense counsel conveyed.
Appellant’s next contention is that the Commonwealth, during cross-examination and closing argument, improperly commented on his fifth amendment privilege. At the resentencing hearing appellant testified that, around the time of the Levato, Newcomer, and Miller murders, he was taking drugs and abusing alcohol. He also testified that he was upset and traumatized by sexual molestation that he and his brother experienced during their childhood years. During the original sentencing hearing appellant testified regarding various aspects of his past, but he did not mention any drug or alcohol abuse. Nor did he mention any molestation. Similarly, confessions that he gave to the police contained no references to such matters.
At the resentencing hearing, appellant was cross-examined by the Commonwealth regarding his failure to have ever previously mentioned drug and alcohol abuse and sexual molestation. Appellant conceded that he had an opportunity to include such details in his confessions, but that he did not do so. He also admitted that he did not mention these matters in testimony that he gave at his original sentencing hearing. Consequently, the Commonwealth made the following comments during its closing argument:
And isn’t it interesting, ladies and gentlemen, in 1981 when John Lesko testified before another jury, he didn’t tell them that he was under the influence of drugs and alcohol. Don’t you think that would be important when you committed these homicides, Peter Levato, Marlene Sue Newcomer and Officer Miller, to tell the jury that I was drunk, that I had drugs and didn’t know what I was doing, don’t you think that would be something you would remember? ... After 15 years, he’s remembered that detail. He remembers all of his drug abuse and alcohol abuse started early, continued, only got worse, but in 1981, he didn’t mention a word to the jury about that, a word.
Remember too when he testified in 1981, there’s no rage, there’s no hostility about the molestation of his brother.... That was important to him. Why didn’t he mention it?
Appellant’s contention that the Commonwealth’s cross-examination and closing argument amounted to an impermissible comment on his right to remain silent is without basis. Appellant’s testimony regarding drug and alcohol abuse and sexual molestation was directed at establishing mitigating circumstances for sentencing. See 42 Pa. C.S. § 9711(e) (mitigating circumstances). The cross-examination and dosing remarks of the Commonwealth simply tested the veracity of the mitigating testimony that appellant presented. As the Third Circuit Court of Appeals noted when it reversed appellant’s original sentence of death,
Lesko provided testimony of a biographical nature at the penalty phase of his trial. Clearly, then, he could not claim a fifth amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony. See Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968) (“A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives ...”).
925 F.2d at 1542. Unlike the original sentencing proceeding where the Commonwealth was deemed to have improperly commented on appellant’s failure to testify regarding the merits of the charges against him, see Lesko, 925 F.2d at 1544, the Commonwealth’s cross-examination and closing argument at the resentencing hearing addressed only the credibility of the testimony that appellant provided. The Commonwealth was perfectly within its bounds to challenge the credibility of biographical testimony that appellant provided.
Appellant next argues that the following excerpt from the Commonwealth’s closing argument constituted an impermissible appeal to vengeance:
Remember all of the sympathy that he showed him, all the mercy that he showed him. When you think about Marlene Sue Newcomer, think about her handcuffed in the back seat of her car with a blanket over her, being shot at and then being killed and remember all of the mercy and all the sympathy that John Lesko showed her. On January 1, 1980, and the climax of these eight days, remember Officer Miller being goaded, literally goaded into chasing Travaglia and when he comes up to him, being killed and being urged by John Lesko to hit him again. Remember his prideful remarks that night, I wanted to kill him. Remember all of the mercy and all the sympathy that John Lesko showed Officer Leonard Clifford Miller on January 3, 1980.
In fact, appellant claims that this was essentially identical to the appeal for vengeance that was made during his original sentencing hearing. We do not agree. At the original hearing, the prosecutor argued that the death penalty should be imposed to fulfill the jury’s “duty” to even the “score,” which stood at “John Lesko and Michael Travaglia two, Society nothing.” Lesko, 925 F.2d at 1545-46. See generally Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 107-08 (Pa.1995) (prosecutorial remarks at penalty hearing must not “arouse the jury’s emotions to such an extent that it is impossible for the jury to impose a sentence based on relevant evidence”), cert. denied, — U.S. —, 117 S.Ct. 90 (1996). The comments at the resentencing proceeding were of a different sort. They focused on details of the crimes, and encouraged the jury to pay particular attention to the callous manner in which appellant acted. This did not invite a retaliatory sentencing decision; rather, it invited a decision that took into account all of the relevant facts — including those which shed light on appellant’s cold-hearted and unmerciful character. Consideration of evidence relating to character is properly at the core of the sentencing decision. Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460, 465 (Pa.1984). The remarks in question would not have impeded the jury in rendering a verdict based on the evidence.
Appellant next argues that by again being sentenced to death, after having been imprisoned on death row for sixteen years, he is being subjected to cruel and unusual punishment in violation of the eighth amendment to the United States Constitution and article I, § 13 of the Pennsylvania Constitution. Appellant describes death row as a hostile and hopeless environment where there are “shouts of the ugliest profanities” and where “basic concentration is next to impossible.” Further, he reports that death row houses some of the Commonwealth’s most violent offenders, and that many of these people do not conduct themselves in a manner that he finds tolerable; for example, they refuse to take showers and they utter “unintelligible shrieks.” We are not persuaded that, by being housed with people like himself who have committed crimes so reprehensible to society as to warrant imposition of the death penalty, appellant has been subjected to an unconstitutional punishment. It has been repeatedly held that the death penalty does not constitute cruel and unusual punishment. E.g., Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101, 1111 (Pa. 1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). This conclusion is not altered by the fact that, prior to being executed, one ordinarily spends substantial time in incarceration while appeals challenging one’s sentence are adjudicated.
Appellant’s next claim is that the trial court erred in excluding certain mitigating testimony at the penalty hearing. It is well established that a defendant is to be accorded wide latitude in demonstrating mitigating circumstances. See Commonwealth v. Travaglia, 467 A.2d at 300. The testimony that appellant sought to introduce was, however, properly excluded. It was, quite simply, not relevant to proof of mitigating circumstances.
Specifically, the court did not permit a social worker, Lois Nardone, to testify regarding tangential aspects of appellant’s family background that were not known to appellant before he committed the crime. Nardone provided extensive testimony about various aspects of appellant’s family history. But when she attempted to testify regarding the marital relationship of appellant’s grandmother, including extraneous details such as whether the grandmother slept alone or engaged in sex only on paydays, the testimony was excluded as irrelevant. Nardone was unable to provide any basis for belief that appellant would have been aware of such details. Matters of which appellant had no knowledge would certainly not have been mitigating factors in his criminal acts.
The court also excluded small portions of the testimony of Hamid Abdul, an Islamic chaplain who served as a religious mentor and counselor to appellant in prison. Abdul testified regarding the prison environment where appellant was incarcerated, and about appellant’s personality, interests, and behavior. Abdul was not, however, permitted to state his personal opinion as to whether appellant is remorseful, though he was allowed to say that appellant’s appearance is demonstrative of remorse. Further, Abdul was not permitted to explain his personal reasons for testifying in support of appellant. Nor was he allowed to state whether the death penalty is recognized in the Islamic tradition. In excluding this testimony, the trial court reasoned that Abdul’s personal opinions and motivations, as well as the traditions of Islamic culture, were not relevant to the statutory mitigating circumstances. See 42 Pa.C.S. § 9711(e) (mitigating circumstances). We agree.
Next, appellant argues that it was error for the Commonwealth to introduce evidence of three aggravating circumstances at sentencing. Appellant’s claim is that the prosecutor created three aggravating circumstances out of two prior murder convictions. The Commonwealth introduced evidence that appellant was convicted of two prior murders: that of Peter A. Levato and Marlene Sue Newcomer. It also introduced evidence that appellant was convicted of conspiracy to commit murder in the first degree in each ease (Levato, Newcomer and Miller). Finally, it introduced evidence that Officer Leonard Miller was killed in the performance of his duties.
Appellant’s argument, is that using each murder conviction as a separate aggravating circumstance and also using those convictions to show felony convictions involving the use or threat of violence to the person allows the Commonwealth an impermissible double usage of the evidence.
42 Pa.C.S. § 9711(d)(10) provides:
(d) Aggravating circumstances. Aggravating circumstances shall be limited to the following.
(1) The victim was a ... peace officer ... who was killed in the performance of his duties or as a result of his official position.
(9) The defendant has a significant history of felony convictions involving the use or threat of violence to the person.
(10) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
It is plain that the killing of Officer Miller in the performance of his duties was an aggravating circumstance under (d)(1). It is also plain that the convictions of conspiracy to commit murder were aggravating circumstances under (d)(9) in that they were a significant history of felony convictions involving the use of violence. Appellant complains, however, that the convictions for the murders of Peter Levato and Marlene Newcomer are but one aggravating circumstance either under (d)(9) or under (d)(10), and that they may not be used also as separate aggravating circumstances.
The argument is meritless. Section (d)(10) allows the jury to consider as aggravating circumstances “another Federal or State offense ... for which a sentence of life imprisonment or death was imposable” as an aggravating circumstance, and (d)(9) allows the jury to consider as aggravating circumstances a significant history of felony convictions involving the use of violence. Nothing in the statute provides that a criminal conviction may be considered under only one subsection. Here, the murders of Levato and Newcomer fit under both d(9) and d(10), and were, therefore, properly considered by the jury as presenting aggravating circumstances under both d(9) and d(10).
Next, appellant claims that it was error to admit into evidence photographs of the crime scenes of all three murders, the two revolvers and bullets used in the slayings, the autopsy reports in the Levato and' Newcomer eases, and statements made by appellant following the initial trial. The essence of appellant’s claim is that this evidence is irrelevant, immaterial and unduly prejudicial.
We rejected a similar claim in Commonwealth v. Young, 637 A.2d at 1320, where we stated:
Beasley makes it clear that a sentencing court does not err when it refuses to limit evidence of this particular aggravating circumstance [prior convictions] to a certified record and sanitized summary of the circumstances of the prior crimes. The jury is entitled to know more than the mere fact of conviction.
In Beasley we stated:
In this Commonwealth, sentencing has long been regarded as having at its core a function of character analysis ... and the central idea of the present sentencing statute is to allow a jury to take into account such relevant' information, bearing upon a defendant’s character and record, as is applicable to the task of considering the enumerated aggravating circumstances.... The nature of an offense, as ascertained through examination of the circumstances concomitant to its commission, has much bearing upon the character of a defendant, and, indeed, without reference to those facts and circumstances, consideration of “convictions” would be a hollow process, yielding far less information about a defendant’s character than is relevant.
479 A.2d at 465. Bearing in mind that the Commonwealth has the burden of proving the existence of aggravating circumstances, one of which was that appellant had a significant history of felony convictions involving the use of violence, evidence of the revolvers, bullets, a photograph of the crime scene and autopsy reports were relevant to the jury’s understanding of the nature of the offenses. With respect to photographs, the only photograph admitted over defense objection was a black and white photograph of the crime scene in the Miller homicide. It showed the officer’s body lying in the road under a blanket. This photograph served to familiarize the jury with the facts and circumstances of the crime and was not unduly prejudicial. Similarly, the guns, bullets and autopsy reports were also relevant to the jury’s understanding of the nature of the offenses for they concern the nature of the prior crimes and the character of the person who committed them. Since there has been no showing of undue prejudice, this evidence was a relevant and proper factor in the jury’s consideration of the sentence which should be imposed.
Similarly, appellant’s claim of error with respect to cross-examination concerning his statement that he had a better chance of being hit by a car than getting the electric chair, and that he would be out of jail in ten years, is without merit. At the sentencing hearing, appellant claimed that he was remorseful. Cross-examination concerning this statement was proper in light of the claim of remorse. There was no error in admission of any of the complained of evidence.
Next, appellant argues that it was error to admit the facts of the Nichols homicide in the sentencing proceeding. In a habeas corpus proceeding filed by appellant, a United States district court conducted a hearing concerning the voluntariness of appellant’s guilty plea in the Nichols matter. The district court ruled that appellant’s guilty plea was wrongfully induced by the representation that it would not be introduced during the penalty phase of the Westmoreland County case involving the murder of Officer Miller. Since the Nichols guilty plea was introduced in the Miller case, the district court determined that a second penalty proceeding was to be conducted in the Miller ease and that evidence of the guilty plea in the Nichols matter was not to be introduced in the second Miller penalty trial. Lesko v. Lehman, Civil Action No. 86-1238, U.S. Dist. Lexis 1123, 1992 WL 717815 (W.D.Pa.1992). At the second penalty hearing, over defense objection, the Commonwealth introduced evidence of the Nichols conviction and the circumstances of the Nichols murder, but not the guilty plea. The evidence which was introduced was not considered as an aggravating factor in sentencing; instead, it was used to demonstrate appellant’s motive and intent in killing Officer Miller. As Judge Seirica stated in the first Third Circuit appeal:
At trial, Lesko and Travaglia’s sole defense to the charge of first degree murder was that they each lacked the requisite intent to kill. Lesko’s counsel argued principally that his client was at most guilty of felony-murder. He argued that in instigating the police chase, defendants planned first to divert the officer from the Stop-and-Go store, and later return to rob the establishment. Therefore, Lesko’s lawyer urged, the killing was not pre-medi-tated, but was the unintended result of a botched robbery attempt.
[T]he central issue in the Commonwealth’s ease against Lesko was whether he deliberately supported Travaglia in a premeditated killing of Miller or whether he was guilty only of participating in an abortive attempt at robbery. Members of the jury could not have determined what was in Lesko’s mind based solely on the events immediately preceding Miller’s death. The jury could only have fairly evaluated the Commonwealth’s theory regarding Lesko’s state of mind by hearing evidence tending to show that Travaglia and Lesko had jointly embarked that evening on a crime spree, that they had already committed a homicide likely to command the death penalty, that they had in their possession powerful evidence of their guilt of that homicide. Moreover, to be in a position to evaluate Lesko’s state of mind during the critical moments during the Miller encounter, the jury needed to hear sufficient details about these matters to be able to appreciate the nature of the evening’s joint undertaking, the relationship and mood of the participants, and the extent of the criminal exposure of those participants in the event of their apprehension by Miller.
Lesko v. Owens, 881 F.2d 44, 47, 54 (3d Cir.1989) (footnote omitted).
The issue, thus, is whether it was error to introduce evidence of the Nichols killing in order to prove appellant’s motive and intent in killing Officer Miller when the district court had ruled that the guilty plea in the Nichols ease was not to be introduced in the second penalty trial.
The trial court charged the jury as follows:
You have heard evidence concerning the killing of William Nichols in Indiana County. This evidence may be considered only as evidence tending to show the motive for and the circumstances surrounding the killing of Officer Leonard Miller. This event is not to be considered by you as an aggravating circumstance upon which you might base a sentence of death. That is, that the killing of William Nichols is not to be considered as an aggravating circumstance, not as a conviction to determine if Mr. Lesko has a significant history of felony convictions involving the use or threat of violence toward a person or persons, nor as a conviction of any state offense committed either before or at the time of the offense at issue for which a sentence of life imprisonment or death was imposable. I want it to be clear to you that you are not to use the evidence of the Nichols killing to determine any of the aggravating circumstances described to you.
As we have already stated, the circumstances surrounding the lolling are admissible for the jury to consider in imposing sentence. Commonwealth v. Young, supra. Because the jury was clearly instructed that the Nichols matter was introduced into evidence only for the purpose of showing the motive and circumstances surrounding the killing of Officer Miller, it was not error to admit evidence of the Nichols evidence for the narrow purpose which was instructed.
Next appellant asserts that he was denied due process and equal protection of the law because he was not granted the same proportion of challenges to alternate jurors as he was to jurors. Pa.R.Crim.P. 1126 provides that in capital felony trials involving one defendant, the Commonwealth and the defendant each has twenty peremptory challenges. That is a ratio of 10 challenges to every 6 jurors. However, in selecting alternate jurors, Pa.R.Crim.P. 1108 provides that each party is entitled to one peremptory challenge for each two alternate jurors. Thus, the ratio for alternate jurors in this ease was 3 challenges to every 6 jurors.
The claim is without merit. First, since both parties are afforded the same number of challenges, there can be no equal protection violation. Second, appellant has articulated no injury from the application of the rules. The fact that an alternate juror became a juror is not, in itself, an injury. Third, rules 1126 and 1108 provide an evenhanded and reasonable process for the selection of jurors. Fourth, appellant offers no authority for the proposition that due process is violated merely by providing for a different number of peremptory challenges for jurors and alternate jurors. And finally, as this court stated in Commonwealth v. Morales, “There is no constitutional right to any peremptory challenges, let alone any particular number of challenges.” 494 A.2d 367, 373 n. 5 (Pa.1985).
Finally, appellant asserts that his second penalty trial was barred by the double jeopardy clauses of the United States and the Pennsylvania constitutions. In Commonwealth v. Smith, supra, this court held that the double jeopardy clause of the Pennsylvania Constitution bars reproseeution “not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.” 615 A.2d at 325. In Smith the prosecution withheld evidence that one of its witnesses was promised lenient treatment in exchange for his testimony and it intentionally withheld material exculpatory evidence.
No court which has reviewed this case has determined that the prosecutor’s conduct intentionally and impermissibly prejudiced the appellant. The Third Circuit Court of Appeals in Lesko v. Lehman, supra, after a careful review of the Commonwealth’s conduct in this case, concluded that the prosecutor had impermissibly referred to appellant’s silence and had impermissibly appealed to vengeance in his closing remarks. The United States District Court subsequently determined that the Commonwealth reneged on the plea bargain between appellant and the county prosecutor. Although these errors required a reversal of the imposition of the death penalty, neither the Third Circuit Court of Appeals nor any other court has determined that the prosecutor’s conduct was an intentional attempt to impermissibly prejudice appellant. It was, instead, erroneous. Accordingly, this claim is without merit, for the prosecutorial misconduct in this case does not rise to the level of intentional misconduct and double jeopardy is not, therefore, implicated.
Finally, after a thorough review of the record we conclude that the record supports the aggravating circumstances as found by the jury. Additionally, we have conducted a proportionality review as is required by 42 Pa.C.S. § 9711 (h)(3)(iii) and find the sentence to be proportionate to sentences imposed in similar eases. There is no basis to find that the sentence of death was the product of passion, prejudice or any other arbitrary factor. Accordingly, the death sentence imposed by the Court of Common Pleas of Westmoreland County is affirmed.
NIGRO, J., concurred in the result.
Appellant's conviction was amply supported by the evidence, as recounted in Commonwealth v. Travaglia, supra.
Appellant’s resentencing hearing preceded our decision in Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, 888-89 (Pa.1995), cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995), wherein we addressed the matter of providing jury instructions regarding the meaning of a "life sentence.”
There were two appeals to the Third Circuit involving Lesko's habeas corpus petition. In the first appeal, Lesko v. Owens, 881 F.2d 44 (3d Cir.1989), the Third Circuit reversed the district court’s issuance of the writ, holding that Lesko was not deprived of a fair trial by the introduction of evidence of his role in the prior murder of William Nichols. However, the court remanded the case to the district court to consider the remaining claims in Lesko’s habeas corpus petition. On remand the district court dismissed Lesko’s petition after considering the remaining claims, but without an evidentiary hearing. On appeal, Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991)(the second appeal), the Third Circuit again reversed the district court, holding that the district court erred in failing to hold an evidentiary hearing on the claim that introduction of evidence of his guilty plea to the Nichols murder at the penalty phase of the Miller trial violated his due process rights and that the jury’s sentencing was tainted by improper prosecutorial remarks during the penalty phase of the trial. The Third Circuit ordered the district court to conduct an evidentiary hearing on the issue of the voluntariness of Lesko's Indiana County guilty plea (the Nichols murder) and to issue a writ of habeas corpus subject to the holding of a Pennsylvania resentencing proceeding. If the district court concluded as a result of its evidentiary hearing that the Nichols guilty plea was not voluntary, then evidence of the guilty plea was not to be introduced at the resentencing proceeding.
The prothonotary of the Supreme Court is directed to transmit the complete record in this case to the Governor, 42 Pa.C.S. § 971 l(i).
COMMONWEALTH of Pennsylvania, Appellee, v. Michael J. TRAVAGLIA, Appellant.
Superior Court of Pennsylvania.
Argued Oct. 28, 1998.
Filed Dec. 15, 1998.
Reargument Denied Feb. 19, 1999.
Ned J. Nakles, Jr., Latrobe, and Dante G. Bertani, Public Defender, Greensburg, for appellant.
Thomas R. Grace, Asst. Dist. Atty., Greensburg, for Com., appellee.
Before FORD ELLIOTT, JOYCE, and TAMILIA, JJ.
[OPINION BY JOYCE, J.: type=majority]
JOYCE, J.:
Appellant, Michael J. Travaglia, appeals from the Order of the trial court denying his motion to bar resentencing. For the reasons set forth below, we affirm. During a seven (7) day period beginning at the end of December, 1979 and ending on January 3, 1980, Appellant participated in four (4) separate murders. Three (3) murders were committed in Indiana County and one (1) in Westmoreland County. The three (3) murders in Indiana County occurred on December 28,1979, January 1,1980 and January 3, 1980. John Lesko participated in all the murders and R.R. accompanied Appellant and Lesko in the last two (2) murders. The relevant facts and procedural history of this case are as follows.
On December 27 and continuing into December 28 of 1979, Appellant and John Lesko kidnapped Peter Levato and stole his automobile. They drove Levato to a remote area where they proceeded to throw him off a bridge. When Levato did not die, Appellant and Lesko searched for him and ultimately shot him to death with a handgun. Appellant pled guilty.
On January 1, 1980, Marlene Newcomer offered Appellant and Lesko a ride. They robbed her and shot her with the same handgun used to kill Levato. Appellant pled guilty.
In the late evening hours of January 2, 1980, Appellant, accompanied by John Lesko and R.R., kidnapped William Nichols. They stole Nichols’ vehicle and forced him to ride along with them. During the course of the ride, Appellant shot Nichols in the arm, repeatedly punched him and taunted him with a knife. After losing consciousness, Nichols was gagged and taken to a wooded location in Indiana County where he was handcuffed and his feet bound. Appellant and Lesko dragged Nichols down to a lake and rolled him into the water where he subsequently drowned. Appellant pled guilty to this murder.
In the early morning hours of January 3, 1980, Apollo, Westmoreland County, police officer Leonard Clifford Miller saw the trio speed past his car in the vehicle stolen from Nichols. Officer Miller pursued them and eventually forced the vehicle off the road. Appellant shot Officer Miller twice as he approached the vehicle, killing him. Appellant and Lesko were arrested on January 3, 1980, after police officers investigating a string of murders connected to Appellant, located the stolen Nichols’ vehicle. Appellant was charged with the murders of Levato, Newcomer and Nichols in Indiana County. He was also charged with the murder of Officer Miller in Westmoreland County. Appellant pled guilty to the three (3) Indiana County murders. However, the Westmoreland County murder conviction has had a long and tortured procedural history lasting sixteen (16) years.
Initially, Appellant and Lesko demanded a jury trial in Westmoreland County, following which both were found guilty of first degree murder. Appellant was sentenced to death on June 4, 1982. Appellant’s judgment of sentence was affirmed by the Pennsylvania Supreme Court and certiorari was denied in Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert, denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989).
Appellant filed his first petition for post-conviction relief and a hearing was held in September of 1985. His petition was denied on October 4, 1985. This Court affirmed in Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (Pa.Super.1986), appeal denied,. 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989).
Governor Casey signed an execution warrant on June 8, 1990. A petition to stay execution was filed by Appellant in the federal court and granted by Judge Bloch on September 9, 1990 to allow Appellant time to file a petition for a' writ of habeas corpus. Appellant filed a second petition for post-conviction relief and a hearing was held in March of 1992. The trial court denied the petition on May 19, 1993. Appellant directly appealed to the Supreme Court, which affirmed and certiorari was denied in Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).
Appellant filed a supplemental petition for habeas corpus on May 21, 1996. Judge Bloch of the federal district court remanded for resentencing finding that the evidence of the Indiana County guilty plea in the Nichols case should have been excluded based on the plea agreement entered into by the parties. All other requested relief was denied. Appellant thereafter filed an omnibus pre-trial motion with the trial court seeking to bar resentencing based on the Supreme Court’s decision in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1994). The trial court denied this motion on December 16, 1997, however, the court granted Appellant the right to file an immediate appeal. This timely appeal followed.
Appellant raises the following issues for our review: (1) whether resentencing Appellant in the Westmoreland County murder is barred by the application of 18 Pa.C.S.A. § 110 and the holding in McPhail', (2) whether the evidence surrounding the Nichols murder should be excluded at resentencing based on the plea agreement; (3) whether the alleged comments of then District Attorney A1 Nichols that he would not seek the death penalty in the event of a retrial precluded seeking the death penalty instantly; (4) whether the 1988 amendments to 42 Pa.C.S.A. § 9711(h)(4): (a) violate equal protection rights of Appellant in that they inappropriately require certain defendants to face the death penalty based on the erroneous decision of the state court prior to the amendments; (b) violate due process rights; (c) constitute an ex-post facto law; (5) whether the Pennsylvania sentencing statute violates due process by permitting the imposition of the death penalty in an arbitrary fashion at the prosecutor’s discretion; and (6) whether- the designation of law enforcement officers, as set forth in 42 Pa.C.S.A. § 9711(d)(1), as an aggravating circumstance, arbitrarily and inappropriately places a higher worth on the value of their lives violating equal protection.
Appellant contends the trial court erred in finding 18 Pa.C.S.A. §110 and the Supreme Court’s recent holding in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (Pa.1994) does not apply to the case at bar. Although the trial court found that all of the requirements of McPhail were met, the court determined that the holding did not apply retroactively. We find that the court properly determined that McPhail does not apply, however, we base our decision on a finding that Appellant’s acts did not fall under the statutory definition of a single criminal episode.
Section 110 provides, in relevant part, as follows:
Although a prosecution is for a violation of-a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for: ...
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense.
18 Pa.C.S.A. § 110(l)(ii). The official comment clarifies when events fall under the definition of a single criminal episode:
Under existing law, if two crimes arise out of the same facts and one does not involve the other (i.e., one is not a step to the other), then a prosecution of one has no bearing on the other and the defendant may be prosecuted for the other regardless of the outcome of the first prosecution. In other words, if the offenses are distinct and separate, the outcome of a trial of the prosecution of one has no bearing on the subsequent prosecution of the other.
18 Pa.C.S.A. § 110, Official Comment (citations omitted). The bar to subsequent criminal prosecution in light of the McPhail decision has recently been discussed in Commonwealth v. Wittenburg, 710 A.2d 69 (Pa.Super.1998), appeal denied, 1998 LEXIS 1888, — Pa.-, — A.2d-, 1998 WL 550196 (Pa. September 1, 1998). There the Court stated:
Section 110, by barring criminal prosecution for offenses arising from the same criminal episode on which a previous prosecution was based, effectively created a rule of compulsory joinder. This compulsory joinder rule selves two distinct policy considerations: (1) to protect a criminal defendant from the governmental harassment of being subjected to successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation. Stated another way, the purpose behind Section 110 is to shield the accused from duplicitous, sequential trials. Such trials promise unnecessary delay, unnecessary expense to the accused and the Commonwealth, unnecessary duplication of judicial resources, and unnecessary aggravation to the accused and witnesses.
Id. at 72-73 (citations and quotation marks omitted).
In Wittenburg various offenses were committed within two counties. The initial offense involved a robbery in Venango County, which led to a high speed chase involving the police in Warren County, and ultimately resulted in the defendant firing several shots at the officers. Wittenburg pled guilty to the robbery in Venango County. He then sought to quash the charges in Warren County based on the provisions of section 110. The Court found that the plea of guilty constituted a conviction for purposes of section 110; that the prosecutors in Venango County were well aware of the charges in Warren County at the time of the proceedings; and that pursuant to McPhail, supra, all the chargés were within the jurisdiction of a single court. However, the Court carefully analyzed the requirement that the crimes involve the same criminal episode and concluded that the facts of the case did not warrant such a finding. In arriving at this determination, the Court considered several factors including that the charges in the two (2) counties were not duplicated, the elements of the crimes that would be proven in one county were distinct from those in the other county, and that the factual witnesses for each incident were distinct.
This determination likewise applies to the case at bar. Appellant pled guilty to the murders of Newcomer, Levato and Nichols, thus satisfying the first requirement of Rule 110. Prosecutors in Westmoreland County were aware of the impending charges in Indiana County at the time of the proceedings. Accordingly, the third requirement is also satisfied. Pursuant to McPhail, all of the charges were within the jurisdiction of a single court. See McPhail, 547 Pa. at 530, 692 A.2d at 144 (finding that the courts of common pleas have statewide jurisdiction and may preside over trials that concern evénts taking place beyond the territorial limits of the county in which the court sits). Despite meeting the first three requirements of the statute, the crimes cannot be said to constitute a single criminal episode.
The term ‘same criminal episode’ can be amorphous and troublesome to apply. The determination of what constitutes a single criminal episode must not be approached in a rigid or hypertechnical manner that would defeat the purposes underlying Section 110. Rather, when determining what constitutes a single criminal episode, we consider (1) the temporal relationship between the acts in question and (2) the logical relationship between the acts. In determining whether a number of offenses are “logically related” to one another, a court should inquire into whether there is a substantial duplication of factual and/or legal issues presented by the offenses; if there is substantial duplication, then the offenses are logically related and must be prosecuted at one trial.
Wittenburg, 710 A.2d at 73.
Although the events in the case at bar arguably have a close temporal relationship, the logical relationship between the crimes is lacking. Appellant claims that because evidence of the circumstances leading up to the murder of Officer Miller were admissible at trial and the officer’s murder occurred while he was attempting to apprehend Appellant for the offenses committed in Indiana County, the offenses were a part of the same criminal episode. The same exact argument, however, was rejected in Wittenburg.
Wittenburg claimed that the offenses were a part of the same criminal episode where they occurred while police officers were attempting to apprehend him for the robbery committed in the other county. He claimed, in essence, that his subjective state of mind at the time dictated that the crimes were interrelated, i.e., the fleeing would not have occurred absent his subjective state of guilt to the commission of the prior crimes. In rejecting this argument, this Court stated:
Further, after study, this Court can find no support for the proposition that Wittenburg’s subjective state of mind at the time that the crimes occurred is relevant to our analysis. Instead, we find that it would defeat the policies behind Section 110 if we were to permit a criminal defendant to dictate through his subjective intent when this section should apply. Rather, we must look at the objective facts and determine whether (1) the defendant would be subjected to governmental harassment by successive tiñáis, and (2) the judicial process would be burdened by repetitious litigation.
Id. at 75.
The policy considerations underlying section 110 would not be served in the case at bar by allowing such a drastic remedy as precluding the resentencing of Appellant. As in Wittenburg, it would be unjust to allow such a result where one crime was merely temporally related to the other and was not a logical step in its commission. In the instant case, the murder of Marlene Newcomer had nothing to do with the kidnapping and murder of Peter Levato four (4) days earlier. Clearly one murder was not a step necessary to the completion of the other. Likewise, the Nichols kidnapping and murder was in no way connected to the first two (2) murders. The killing of Officer Miller, although committed during an attempt to apprehend Appellant for antecedent criminal acts, was not the final necessary step relevant to the criminal conduct. It was necessary that Appellant commit some wrongdoing to occasion the chase, however Officer Miller’s murder was committed in an attempt to avoid apprehension, not as a part of the prior three (3) murders. This case is clearly distinguishable from McPhail, supra, where the drug sale and purchases between the two counties clearly involved one continuous event.
In McPhail, supra, the defendant sold a small quantity of cocaine to an undercover agent of the Pennsylvania state police in Washington County. On a second occasion, Appellant told the trooper that they would need to go to Allegheny County to obtain a larger quantity. Consequently, the second sale occurred in Allegheny County. The final sale to the trooper occurred in Washington County a few weeks later. Clearly, the transactions in McPhail constituted a single criminal episode where it was necessary to obtain drugs from another county in order to make a sale of the drugs requested in the other. Those special circumstances do not exist in the case at bar. The murder of Officer Miller was not so clearly dependent on the occurrences in the Indiana County. Rather, it was a singular event unrelated and independent of the prior conduct. Therefore, the trial court properly found section 110 inapplicable to the case at bar.
Appellant next contends that the evidence of the circumstances surrounding the Nichols murder, along with the actual plea, should be excluded at resentencing. This same exact issue was decided in the companion case of Commonwealth v. Lesko, 719 A.2d 217 (Pa. 1998). Relevantly, the Supreme Court found:
The district court ruled that appellant’s guilty plea was wrongfully induced by the representation that it would not be introduced during the penalty phase of the Westmoreland County case involving the murder of Officer Miller. Since the Nichols guilty plea was introduced in the Miller case, the district court determined that a second penalty proceedings was to be conducted in the Miller case and that evidence of the guilty plea in the Nichols matter was not to be introduced in the second Miller penalty trial. At the second penalty hearing, over defense objection, the Commonwealth introduced evidence of the Nichols conviction and the circumstances of the Nichols murder, but not the guilty plea. The evidence which was introduced was not considered as an aggravating factor in sentencing; instead, it was used to demonstrate appellant’s motive and intent in killing Officer Miller_
At trial, Lesko and Travaglia’s sole defense to the charge of first degree murder was that they each lacked the requisite intent to kill.... The jury could only have fairly evaluated the Commonwealth’s theory regarding Lesko’s state of mind by hearing evidence tending to show that Travaglia and Lesko had jointly embarked that evening on a crime spree, that they had already committed a homicide likely to command the death penalty, that they had in their possession powerful evidence of their guilt of that homicide. Moreover, to be in a position to evaluate Lesko’s state of mind during the critical moments during the Miller encounter, the jury needed to hear sufficient details about these matters to be able to appreciate the nature of the evening’s joint undertaking, the relationship and mood of the participants, and the extent of the criminal exposure of those participants in the event of their apprehension by Miller....
The Supreme Court concluded that the circumstances surrounding the murder of Nichols were admissible for the jury to consider in imposing a sentence. The jury was properly instructed that the events surrounding the Nichols murder were solely introduced into evidence to show motive and the circumstances surrounding the murder. The Court found no error in the admission of such evidence. We decline to assign error under the same circumstances.
Appellant alleges that the District Attorney at the time of the trial, A1 Nichols, stated that he would not seek the death penalty in the event of a retrial of the Miller case and that, therefore, the Commonwealth was precluded from seeking the death penalty instantly. This, however, is not an accurate account of the statement and its limited purpose. Following trial on the Miller murder, Appellant faced a trial on both the Newcomer and Levato murders. Appellant claims that the alleged comment by the District Attorney induced him to plead guilty to those murders on March 23,1981.
Contrary to Appellant’s contention, the plea colloquy indicates that the guilty pleas would not be used as aggravating circumstances should the Miller case be retried. There is no mention that the District Attorney represented that he would not seek the death penalty based on other aggravating circumstances, i.e., the police officer’s death. Therefore, Appellant’s claim is meritless.
Next, Appellant asserts that the 1988 amendments to 42 Pa.C.S.A. section 9711(h)(4) violate due process and constitute ex-post facto law. This argument was addressed in the companion case decided by the Supreme Court in Lesko, supra, where the Court stated:
Under the sentencing statute that was previously in effect, a remand for imposition of a sentence of life imprisonment would indeed have been required. However, the statute was amended in 1988 to provide that a new sentencing hearing must be conducted whenever a sentence of death is vacated, except where it is vacated for disproportionality or lack of evidence of aggravating factors. Appellant argues that his due process and ex post facto rights under the federal and state constitutions were violated by subjecting him to resentencing under the amended statute. The same arguments have already been rejected by this court. We have repeatedly held that the revised sentencing provision can be applied to cases, like appellant’s, that were pending in the appellate process at the time of the amendment.
Appellant further asserts that the resentencing provision does not apply where a death sentence has been vacated by any court other than the Supreme Court of Pennsylvania. He relies on the [language of the statute]. Appellant reasons that because the statute does not specify what is to occur when courts other than this one vacate a sentence, the legislature must have intended that there would be no new sentencing hearing and that a remand for imposition of a life sentence would occur. Such an approach would lead, however, to a highly irrational sentencing scheme. Those whose sentences are vacated by this court would be in a far worse position than those whose sentences are vacated by other courts, since the former would be at risk .of incurring another death sentence while the latter would not. The legislature cannot be deemed to have intended such an illogical result....
Further, appellant asserts that the resentencing provision is inapplicable to cases that were pending before any court other than the Supreme Court of Pennsylvania at the time of the 1988 amendment. Appellant notes that, because.we completed appellate and post-conviction review of this matter in 1986, this case was not pending before us at the time of the 1988 amendment. The statute contains no language, however, that makes it applicable only to cases pending in a particular court. In fact, the legislature expressly designated that the amendment should be applied to all criminal cases and appeals pending on the effective date of the act. This plainly sets no limits as to the courts in which cases and appeals were pending.
Lesko, 719 A.2d at 220 (citations and quotation marks omitted). Thus, we too reject Appellant’s contentions.
Appellant alleges that the Pennsylvania sentencing statute violates due process by permitting the imposition of the death sentence in an arbitrary fashion at the prosecutor’s discretion. The constitutionality of this provision, however, has been repeatedly upheld. See Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, 670 (Pa.1986) (finding that the death penalty statute was constitutional and rejecting defendant’s argument that prosecutorial discretion in seeking the death penalty violates due process by allowing for arbitrary selection of its imposition).
Lastly, Appellant contends that the designation of law enforcement officers set forth in 42 Pa.C.S.A. § 9711(d)(1) as aggravating circumstances for considering the death penalty, arbitrarily and inappropriately places a higher worth on the value of their lives violating equal protection. We cannot agree with this contention. This designation has repeatedly been upheld. See Commonwealth v. Gibbs, 533 Pa. 539, 626 A.2d 133 (1993) (upholding sentence where 42 Pa. C.S.A.§ 9711(d)(1) applied). Providing such a sentencing provision, where the murder of a police officer while performing his duties is an aggravating circumstance, does not violate equal protection. Rather, as the trial court duly noted, it provides a deterrent to killing individuals who routinely risk their lives in the field of law enforcement. Trial Court Opinion, 12/16/97, at 15. Finding no basis upon which to disturb the findings of the trial court, we affirm.
Order affirmed.
FORD ELLIOTT, J., files Concurring Statement.
[OPINION BY FORD ELLIOTT, J., type=concurrence]
FORD ELLIOTT, J.,
concurring:
While I am in accord with the majority’s discussion of Commonwealth v. McPhail, supra, generally, I agree with the Commonwealth’s position that McPhail has no application under the facts of this ease. Therefore, I concur in the result reach by the majority.
The Commonwealth counters Appellant’s argument by contending that McPhail, supra does not apply to the facts of this case because Appellant is solely facing a resentencing hearing, unlike McPhail in which Appellant was facing a trial to determine his guilt or innocence. The Commonwealth's argument, however, must fail. Appellant's McPhail issue centers around whether the prior plea acted as a bar to a subsequent prosecution on double jeopardy grounds. That is the exact argument presented in McPhail, supra. Therefore, if we were to find that the requirements of McPhail are met and that the decision applies retroactively, Appellant's claims would merit review.
We note that the Supreme Court’s decision in McPhail, supra is a plurality decision, and thus has limited precedential value. See Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa.Super. 1998) (finding that plurality opinions are not binding precedent).
COMMONWEALTH of Pennsylvania, Appellant, v. Michael J. TRAVAGLIA, Appellee.
Superior Court of Pennsylvania.
Submitted Nov. 26, 2001.
Filed Feb. 19, 2002.
John W. Peck, Asst. Dist. Atty., Greensburg, for Commonwealth, appellant.
Dante G. Bertani, Public Defender, Greensburg, for appellee.
Before STEVENS, LALLY-GREEN, and HESTER, JJ.
[OPINION BY STEVENS, J. type=majority]
STEVENS, J.
¶ 1 The Commonwealth appeals from the order entered in the Court of Common Pleas of Westmoreland County disposing of the Commonwealth’s motion in limine filed prior to sentencing. On appeal, the Commonwealth contends the trial court erred in indicating (1) it is limiting the Commonwealth’s use of Appellee’s previous murder convictions at the death sentencing hearing, and (2) it is going to give an instruction pursuant to- Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187,129 L.Ed.2d 133 (1994). We reverse and remand for further proceedings.
¶ 2 The relevant facts and procedural history are as follows: During the early morning hours of January 3, 1980, Appellee shot and killed Police Officer Leonard Clifford Miller, Appellee proceeded to a jury trial, and he was convicted of first-degree murder and conspiracy to commit first-degree murder. Appellee was sentenced to death, and he filed an appeal to the Pennsylvania Supreme Court, which affirmed the judgment of sentence. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). Appellee filed a petition for writ of certiorari, which was denied by the United States Supreme Court. Travaglia v. Commonwealth, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984).
¶ 3 Appellee filed a petition for collateral relief under the now repealed Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. (PCHA), which was denied. Appellee filed an appeal to this Court, and we affirmed the denial. Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (1986). Appellee filed a petition for allowance of appeal with the Pennsylvania Supreme Court and a writ of certiorari with the United States Supreme Court, both of which were denied.
¶ 4 On June 8,1990, then Governor Robert Casey signed a warrant for the execution of Appellee, and, on September 9, 1990, the Honorable Allen N. Bloch issued a stay of execution to permit Appellee to file a petition for writ of habeas corpus. Appellee filed a second PCHA petition, which was denied. Appellee filed an appeal to the Pennsylvania Supreme Court, which affirmed the sentence of death. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995). The United States Supreme Court denied Appellee’s petition for writ of certiorari.
¶ 5 On May 21, 1996, Appellee filed another petition for writ of habeas corpus in federal court, and the western district court remanded for resentencing. The district court recommended that, at the resentencing hearing, no reference to Appellee’s guilty pleas in unrelated cases should be made during the Commonwealth’s case-in-chief. Appellee filed in the Court of Common Pleas a motion seeking to bar his resentencing pursuant to Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997), which was denied by the court. Appellee’s appeal to this Court and the Pennsylvania Supreme Court proved to be fruitless.
¶ 6 Appellee’s resentencing hearing was scheduled for October 16, 2000, and, during a pre-trial conference, Appellee indicated that he would be introducing his testimony, his prison record, and the testimony of two experts to establish Appellee is a model prisoner, religious, and has changed since being in prison. On October 4, 2000, the Commonwealth filed a motion in limine in which it sought a ruling as to the use of Appellee’s previous homicide convictions during rebuttal of Appellee’s character testimony. By opinion and order dated October 11, 2000, the trial court ruled that evidence of the previous homicides could not be used unless the defense “opened the door.” The trial court specifically held that evidence presented by the defense relating to Appellee’s good behavior in prison and character evidence relating to periods of time not encompassing the homicides did not constitute “opening the door.” However, the trial court held that any evidence which suggested that the offense was generally out of character for Appellee or which otherwise created a false impression that Appellee did not participate in the previous offenses constituted “opening the door.” Also, the trial court ruled that it would not admit the testimony of Dr. Daniel Greenfield, one of Appellee’s experts, since he failed to state his opinions to a reasonable degree of medical certainty.
¶ 7 On October 13, 2000, prior to the resentencing hearing, the Commonwealth filed a notice of appeal to this Court. The Court of Common Pleas did not order the Commonwealth to file a statement pursuant to Pa.R.A.P.1925(b), no such statement was filed, and the lower court did not file a Pa.R.A.P.1925(b) opinion.
¶ 8 The Commonwealth first contends that the trial court erred in limiting the use of Appellee’s previous murder convictions for purposes of impeaching Appellee’s character at the death sentencing hearing. We agree.
The admission of evidence is a matter vested in the sound discretion of the trial court, whose decision thereon can only be reversed by this Court upon a showing of an abuse of discretion. In determining whether certain evidence should be admitted, the trial court must weigh the evidence and probative value of such evidence against the prejudicial impact of that evidence.
Commonwealth v. Jones, 546 Pa. 161, 173, 683 A.2d 1181, 1193 (1996) (citations omitted).
¶ 9 Here, the record reveals that, in exchange for guilty pleas relating to Levato, Newcomer, and Nichols, the Commonwealth agreed that it would not use Appellee’s guilty pleas, as well as the circumstances surrounding those murders, at Appellee’s resentencing hearing with regard to Officer Miller. The Commonwealth admits that, pursuant to the agreement and previous trial court rulings, it cannot use the murders in its case-in-chief and that it is limited to introducing the evidence only if Appellee “opens the door.” However, the Commonwealth disagrees with the trial court’s conclusion as to what evidence “opens the door” for the use of the previous convictions. The Commonwealth specifically contends that it should be permitted to introduce evidence of the other convictions if Appellee offers mitigating evidence by testifying that he has been a model prisoner for the last twenty years, has adjusted well to prison, is a different person than he was prior to prison, and is now a Christian.
¶ 10 The Supreme Court has held that proof of a convicted felon’s good prison record and changes in character made while in prison are proper mitigating circumstances under 42 Pa.C.S.A. § 9711(e)(8). Commonwealth v. Peoples, 536 Pa. 326, 639 A.2d 448 (1994); Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). That is, a convicted felon may establish his good character by offering evidence concerning his prison record, personality changes made during prison, and the fact he has “discovered” religion. Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234 (1999). The Pennsylvania Supreme Court has held that a defendant may be questioned about his previous convictions where a defendant testifies during trial or at sentencing concerning his good character. Fisher, supra; 42 Pa.C.S.A. § 5918.
A defendant is undoubtedly allowed to present any evidence “relevant and admissible” to any mitigating circumstance, including any evidence “concerning the character and record of the defendant....” 42 Pa.C.S.A. §; 9711(a)(2) and (e)(8). However, it is equally clear that the defendant is not entitled to present, without challenge or rebuttal by the Commonwealth, false or misleading evidence or to create a false impression of his character or record.
Commonwealth v. O’Shea, 523 Pa. 384, 404, 567 A.2d 1023, 1032 (1989).
¶ 11 In the case sub judice, Appellee may present testimony that he is a model, religious prisoner in order to establish his good character. Implicit in Appellee’s argument is the assertion that he loves his fellow man, respects the law of God, and is non-violent. However, the Commonwealth is entitled to present evidence, i.e., Appellee’s prior convictions, to the jury suggesting other or additional motives for Appellee’s good prison record and to rebut Appellee’s non-violent character testimony. As such, we conclude that the trial court erred in holding that the Commonwealth is not permitted to question Appellee about his previous convictions if he testifies or presents other evidence concerning his prison record, personality changes in prison, or new found religion. Simply put, we conclude that the trial court erred in holding that the phrase “putting one’s character in issue” does not include one’s prison record or changes made while in prison.
¶ 12 The Commonwealth’s final contention is that the trial court erred in indicating that it is going to give an instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), even if Appellee’s future dangerousness is not placed at issue during sentencing. In its opinion, the trial court stated that, pursuant to Chief Justice Flaherty’s dissent in Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344 (1998), the court is going to tell the jury at the outset that it must either sentence Appellee to death or to life without, the possibility of parole. The Commonwealth contends that this is tantamount to a Simmons instruction and that the trial court may give an instruction pursuant to Simmons only if Appellee’s future dangerousness is raised. Appellee, on the other hand, contends that the trial court may give a Simmons instruction even if future dangerousness is not at issue, but must do so if Appellee’s future dangerousness is raised.
¶ 13 There is no doubt that, if the Commonwealth raises the future dangerousness of Appellee as an issue, and Appellee requests an instruction that “life imprisonment” means that Appellee would spend the rest of his life in prison without the possibility of parole, it would be a denial of due process for the trial court to refuse such an instruction. Simmons, supra, At issue is whether the trial court may inform the jury that “life imprisonment” means life without the possibility of parole in the absence of the Commonwealth raising the future dangerousness of a defendant. After a careful review, we conclude that it may not.
¶ 14 There is no dispute that, prior to the United States Supreme Court’s decision in Simmons, “the law in Pennsylvania expressly prohibited juries from being informed that life meant life without parole.” Commonwealth v. Thompson, 559 Pa. 229, 245, 739 A.2d 1023, 1032 (1999) (citation omitted). See Commonwealth v. Speight, 544 Pa. 451, 677 A.2d 317 (1996). Following Simmons, the Pennsylvania Supreme Court has examined numerous appeals where an appellant claimed that the trial court should have given an instruction indicating that “life imprisonment” means life without the possibility of parole. Consistently, the Pennsylvania Supreme Court has held that Simmons creates an exception as to when the jury may be informed that “life imprisonment” means life without the possibility of parole and that Simmons “applies only where the defendant’s future dangerousness is at issue.” Commonwealth v. Young, 561 Pa. 34, 68, 748 A.2d 166, 183 (citation omitted). See Commonwealth v. Hawkins, — Pa. —, 787 A.2d 292 (2001); Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859 (2000); Speight, supra. As such, we conclude that, if the future dangerousness of Appellee is not at issue in this case, the trial court may not inform the jury that it must sentence Appellee to death or life in prison without the possibility of parole. While we acknowledge that a minority of the Pennsylvania Supreme Court is of the view that a Simmons instruction should be given in all capital cases, such is not the current majority position in this Commonwealth. Moreover, neither the federal constitution, state constitution, nor Pennsylvania statute, which governs sentencing, requires that the jury be informed that “life imprisonment” means life without the possibility of parole. See 42 Pa.C.S.A. § 9711. Any extension of Simmons is a policy decision best left to the legislature.
¶ 15 Finally, we note that the Commonwealth argues that if it places Appellee’s future dangerousness at issue, the trial court’s jury instruction must include not only an indication that “life imprisonment” means life without the possibility of parole, but also that “the Governor has the power to grant a commutation of a sentence of life or death if based on the recommendation of the Board of Pardons following a public hearing.” Commonwealth v. Trivigno, 561 Pa. 232, 256, 750 A.2d 243, 257 (2000) (Newman, J., plurality opinion). We agree and instruct the court to give such an instruction if the future dangerousness of Appellee is at issue during the sentencing hearing.
¶ 16 Reversed and Remanded for proceedings consistent with this decision. Jurisdiction relinquished.
Appellee pleaded guilty to the killing of William Nichols, Peter Levato, and Sue Newcomer.
In its notice of appeal, the Commonwealth contended that the court’s order terminated or substantially handicapped the prosecution, and, therefore, we are permitted to review the Commonwealth's appeal. Pa.R.A.P. 311(d), 42 Pa.C.S.A. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). To the extent Appellee argues that the Commonwealth’s appeal is premature, we note that the Commonwealth is permitted to take appeals from orders regarding motions in limine under Pa.R.A.P. 311(d). While generally the motion in limine pertains to pre-trial proceedings, we conclude that the same rules apply to a jury sentencing hearing case since the Commonwealth will lose its right to appeal if it does not do so immediately.
During Appellee’s first sentencing hearing, the trial court would not permit Appellee’s previous convictions to be introduced into evidence unless the defense created the wrong impression to the jury. N.T. 1/31/1981 at 1407-1409.
We note that Appellee did not appeal from the trial court’s order and has indicated in his brief that, for purposes of this appeal, he is not contending that the prior convictions may not be introduced under any circumstances. Rather, Appellee argues in support of the trial court’s order. As such, we need not decide whether the Commonwealth’s agreements with Appellee prevents the introduction of the previous convictions for any purpose. The only issue before us is, assuming that the Commonwealth may use the prior convictions to rebut Appellee’s character testimony during resentencing, did the trial court err in limiting what character testimony the Commonwealth may rebut.
To the extent the Commonwealth argues that evidence of Appellee's previous convictions should be permitted to rebut Dr. Daniel Greenfield’s testimony, we find no relief is due at this stage in the proceedings. The trial court stated in its order that Dr. Greenfield's testimony, in its present form, is not admissible. However, since Appellee has indicated that he is going to enter into evidence his prison record, the expert testimony of Dr. Steven Noffsinger, and his own testimony about the changes he has undergone in prison, we will address the use of the prior convictions to rebut this evidence.
Section 9711(e)(8) provides that ''[m]itigat-ing circumstances shall include the following: (8) Any other evidence concerning the character and record of the defendant and the circumstances of his offense.”
In Simmons, the defendant was convicted of murder, and the prosecutor argued during the penalty phase that the jury should consider the defendant’s future dangerousness. The defendant asked the lower court to instruct the jury that "life imprisonment” meant life without the possibility of parole. The trial court refused. The United States Supreme Court held that where the future dangerousness of a defendant is raised, and state law prohibits the defendant's release on parole, due process requires that the sentencing court grant the defendant’s request to inform the jury that defendant is parole ineligible.
The Supreme Court has held that evidence of a defendant’s prior convictions does not raise the issue of future dangerousness for the purposes of a Simmons instruction. Commonwealth v. King, 554 Pa. 331, 721 A.2d 763 (1998). That is, if the Commonwealth introduces evidence of Appellee’s previous convictions, the trial court is not required to give a Simmons instruction on this basis alone.
While Trivigno is a plurality decision, we specifically adopt its reasoning in this case.
15 A.3d 345
COMMONWEALTH of Pennsylvania, Appellee v. John C. LESKO, Appellant. Commonwealth of Pennsylvania, Appellant v. John C. Lesko, Appellee. Commonwealth of Pennsylvania, Appellee v. John C. Lesko, Appellant.
Nos. 518 CAP, 519 CAP, 520 CAP.
Supreme Court of Pennsylvania.
Submitted March 18, 2008.
Decided Feb. 24, 2011.
Samuel J.B. Angeli, Robert Brett Dunham, Defender Association of Philadelphia, Philadelphia for John C. Lesko.
Thomas R. Grace, John W. Peck II, Westmoreland County District Attorney’s Office, Amy Zapp, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
[OPINION BY Chief Justice CASTILLE. type=majority]
OPINION
Chief Justice CASTILLE.
In these consolidated capital post-conviction cross-appeals, the Commonwealth challenges the August 7, 2006 order of the Westmoreland County Court of Common Pleas awarding John C. Lesko a new trial and penalty hearing under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. In his protective cross-appeal, Lesko challenges the portions of the PCRA court’s ruling which denied certain claims for relief. The appeals of the PCRA court’s order are directly reviewable by this Court pursuant to 42 Pa.C.S. § 9546(d). For the reasons that follow, we reverse the order of the PCRA court granting Lesko a new trial and a new penalty hearing, and we dismiss the petition for PCRA relief.
The guilt phase of the trial established that Lesko participated in the murder of Apollo Police Officer Leonard Miller. 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). Specifically, the facts demonstrate that in the early morning hours of January 3, 1980, Officer Miller was on duty when a silver-colored Lancia sports car containing three men — Lesko, Michael Travaglia, and R.R.— sped past his position at the Apollo Stop-and-Go convenience store several times. Officer Miller radioed for assistance, then pursued and stopped the sports car. When back-up officers arrived, they found Officer Miller lying on the highway, dead from two bullets from a .38 caliber handgun. His service revolver was drawn and all six rounds were fired. Police subsequently located the sports car, which had been abandoned. The windows were shattered and the car had bullet holes in it. It was determined that the car was registered to a William Nicholls of Pittsburgh, who had recently disappeared.
Prior to Officer Miller’s murder, the Pennsylvania State Police had received information indicating that Travaglia may have been involved in a number of armed robberies and killings in Pittsburgh and surrounding counties. While conducting their investigation, the State Police found a vehicle owned by a homicide victim. The vehicle had been abandoned near a motel where Travaglia and D.M. had stayed.
Pittsburgh police located M. and discovered a .38 caliber handgun on his person. M. told the police that Travaglia had given him the weapon and that Travaglia and Lesko talked about killing a police officer. M. then told the police that Lesko and Travaglia were staying in a room at the Edison Hotel in Pittsburgh. The police proceeded to the Edison Hotel where they arrested Lesko and Travaglia. After being given Miranda warnings, Lesko and Travaglia were individually interrogated. Both gave statements implicating themselves in the killing of Officer Miller, as well as in the killings of William Nicholls, Peter Levato, and Marlene Sue Newcomer.
Following various delays caused by two changes of venue and a mistrial, a joint trial of Lesko and Travaglia commenced in the Westmoreland County Court of Common Pleas on January 21, 1981, before Judge Gilfert Mihalich and a jury which had been selected in Berks County. The jury convicted both men of first-degree murder and conspiracy for the killing of Officer Miller. Subsequently, the jury returned a sentence of death for each defendant. On their joint direct appeal, this Court affirmed the convictions and sentences. See Travaglia, supra. Thereafter this Court affirmed the denial of Lesko’s petition for relief under the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S.A. § 9541 et seq. (the predecessor to the PCRA). See 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).
Lesko filed a petition for a writ of habeas corpus in federal district court. Ultimately, on federal appeal in 1991, the U.S. Court of Appeals for the Third Circuit granted sentencing phase relief, concluding that the prosecutor made improper comments during the penalty phase of the trial that tainted the jury’s sentencing decision. See Lesko v. Lehman, 925 F.2d 1527 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991). Following a second sentencing proceeding before the Honorable Gary P. Caruso of the Westmoreland County Court of Common Pleas in 1995, a jury found four aggravating factors and four mitigating factors. The jury concluded that the aggravating factors outweighed the mitigating factors and returned a sentence of death pursuant to 42 Pa.C.S. § 9711(c)(1)(iv).
On direct appeal from his new death sentence, Lesko raised a number of issues related to his resentencing proceeding and second imposition of the death penalty. This Court again affirmed Lesko’s sentence of death, Commonwealth v. Lesko, 553 Pa. 233, 719 A.2d 217 (1998), and, on January 19, 1999, the U.S. Supreme Court denied Lesko’s petition for a writ of certiorari, 525 U.S. 1108, 119 S.Ct. 878, 142 L.Ed.2d 778 (1999). On January 25,1999, then-Governor Thomas R. Ridge signed a warrant scheduling Lesko’s execution for March 18, 1999. On February 10, 1999, Lesko filed a pro se petition for relief under the PCRA, attempting to challenge both his conviction and sentence, and moving for a stay of execution. On February 24, 1999, the PCRA court entered an order granting a stay of execution and appointing Robert Brett Dunham, Esquire, to represent Lesko in filing an amended PCRA petition. Lesko had previously been represented at all times by Rabe F. Marsh, III, Esquire, who was appointed to represent Lesko shortly after his arrest in 1980. At various times during his representation of Lesko, Attorney Marsh was assisted by other attorneys. Attorney Marsh was granted permission to withdraw as counsel upon Attorney Dunham’s entry of appearance. On May 24, 1999, Attorney Dunham filed an amended PCRA petition and a petition for habeas corpus relief on behalf of Lesko, which were followed by subsequent addendums and supplements. The PCRA proceedings were assigned to the Honorable Richard E. McCormick, Jr., of the Westmoreland County Court of Common Pleas.
On December 14, 15, and 16, 1999, the PCRA court held evidentiary hearings at which Lesko presented the testimony of Attorney Marsh, Attorney Marsh’s co-counsel, Brian O’Leary, and Dr. Herbert E. Levit, a psychologist who had evaluated Lesko for the second penalty hearing. Additional evidentiary hearings were held on March 21 and 22, 2001, and on April 25 and 26, 2002. Following these evidentiary hearings, and at the direction of the PCRA court, the parties filed a number of post-hearing pleadings. On August 7, 2006, by opinion and order, the PCRA court held that Lesko, for a variety of reasons discussed in detail below, was entitled to a new trial and a third penalty hearing.
The Commonwealth appealed the PCRA court’s order granting relief with regard to both the guilt and the penalty phase and Lesko filed a protective cross-appeal raising issues on which he did not obtain relief.
Our standard of review in an appeal from the grant or denial of PCRA relief requires us to determine whether the ruling of the PCRA court is supported by the record and is free from legal error. See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 593 (2007).
I. JURISDICTION OVER GUILT STAGE CLAIMS
Before turning to the specific claims on which the PCRA court ruled, the Commonwealth raises a controlling preliminary question regarding whether the PCRA court erred in entertaining any of Lesko’s claims related to his 1981 conviction (the “guilt phase claims”) because those claims are time-barred.
In his PCRA petition, Lesko asserted a number of claims of ineffective assistance of trial counsel related to the guilt phase of his 1981 trial. The PCRA court awarded Lesko a new guilt phase on its finding that trial counsel interfered with Lesko’s right to testify at trial. The PCRA court also found that Lesko was entitled to a new trial based on his Brady claims and derivative trial counsel ineffectiveness claims related thereto, which will be discussed separately. Specifically, the PCRA court determined that the Commonwealth’s failure to produce relevant impeachment evidence cumulatively prejudiced Lesko, and that Lesko’s counsel was ineffective for failing to obtain certain impeachment evidence and impeach certain witnesses. The Commonwealth contends that the PCRA court erred in addressing these claims because they were untimely.
According to the Commonwealth, under the time requirements of the PCRA, Lesko had to raise any claims relating to his original trial by January 16, 1997, the date on or before which a first PCRA petition would be deemed timely in a case, like the one sub judice, where the judgment of sentence became final before the effective date of the 1995 amendments to the PCRA. As Lesko first raised the claims in February 1999, the Commonwealth argues that the claims are time-barred and the PCRA court did not have jurisdiction to entertain them. The Commonwealth further asserts that Lesko failed to plead or prove any of the exceptions to the PCRA’s time requirements, and that Lesko’s efforts to couch his claims in terms of ineffectiveness of counsel cannot save his otherwise untimely petition.
Lesko, in contrast, maintains that his 1999 PCRA petition was, in fact, timely, and, therefore, that the PCRA court had jurisdiction to consider the guilt phase ineffectiveness claims raised therein. He points out that his second death penalty sentence, imposed in 1995, did not become final until January 19, 1999, after the Supreme Court of the United States denied his petition for certiorari. Thus, Lesko argues that his PCRA petition, filed February 10, 1999, was filed within one year of the date his judgment of sentence became final.
Lesko further suggests that the only issue implicating the PCRA court’s ability to review his claims of guilt phase ineffective assistance of counsel is whether his claims were waived because they were not raised in a prior PCRA petition. On the issue of waiver, Lesko contends, and the PCRA court agreed, that because Lesko was represented by trial counsel at all times prior to filing his 1999 PCRA petition, the 1999 petition represented his first opportunity to present claims of ineffective assistance of trial counsel, and, therefore, the ineffectiveness claims were not waived. See Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1274 (2007) (recognizing general rule that counsel cannot raise his own ineffectiveness); Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761, 775 n. 7 (2004) (where appellant was represented by same counsel at trial and on direct appeal, PCRA proceeding is deemed first opportunity to challenge stewardship of prior counsel).
The PCRA court reasoned that it had jurisdiction over the guilt phase ineffectiveness claims because the PCRA proceedings were the first time that an independent attorney had reviewed Lesko’s case and, thus, presented the first opportunity Lesko had to challenge trial counsel’s conduct during the guilt phase. The PCRA court also pointed out the well-established tenets that counsel generally is not permitted to raise his own ineffectiveness; PCRA review is the appropriate avenue to raise ineffectiveness claims for a defendant who was represented by the same counsel at trial and on direct appeal; and issues of ineffectiveness must be raised at the earliest stage of the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant. Accordingly, the court concluded that it had jurisdiction over the guilt phase claims.
Having considered the competing arguments as well as the PCRA court’s reasoning, we agree with the Commonwealth that Lesko is not entitled to PCRA review of his guilt phase claims to the extent he seeks to challenge anything but the Commonwealth’s failure to disclose allegedly material evidence, because his petition is time-barred as to those claims; and because he has not argued or demonstrated any exceptions to the jurisdictional time requirements as set forth in 42 Pa.C.S. § 9545(b)(1). We conclude that this result is commanded by the terms and purpose of the PCRA, by the terms and purpose of the federal habeas order which led to Lesko’s resentencing proceeding, and by an appreciation of the very limited role played by the lower federal habeas courts in “reviewing” final state criminal judgments.
The novel question presented here may be phrased as: when a federal habeas corpus court sitting in civil collateral review of a final Pennsylvania judgment directs coercive, limited relief in the form of ordering Pennsylvania authorities to offer a convicted capital defendant a new penalty hearing, but does not purport to affect the underlying conviction or final judgment in any other manner, does the federal order operate to reopen the untouched Pennsylvania judgment concerning the verdict of guilt to serial collateral attack in state court. Lesko believes he is entitled to a fourth round of review of his guilt phase as of right under the PCRA, as a consequence of the federal habeas order. Lesko’s theory, which the PCRA court appears to have adopted, depends on his assertion that the 1981 judgment of sentence did not become final until the conclusion of this Court’s direct review of his second penalty hearing, which followed the federal collateral proceedings. Such a theory rests, in part, upon a view that collateral federal proceedings are but another step in the appellate review process; but that view fails to consider the actual and much more limited nature of such proceedings and their effect on state court final judgments.
The terms of the PCRA do not specifically address the scenario presented here. By enacting the PCRA, the Legislature has prescribed the route that all collateral review of criminal convictions and sentences in Pennsylvania must follow. 42 Pa.C.S. § 9542 (“The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies ..., including habeas corpus and coram nobis.”). The PCRA is not a part of the direct criminal proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). The PCRA has a commensurately limited purpose as it provides only “for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S. § 9542. The types of claims deemed cognizable under the PCRA likewise are not limitless. Instead, the PCRA petitioner must plead and prove “[t]hat the conviction or sentence resulted from one or more of the following [enumerated errors] ...,” including, inter alia, a violation of the United States or Pennsylvania Constitutions or ineffective assistance of counsel. 42 Pa.C.S. § 9543(a)(2). Furthermore, a petitioner does not have an absolute right to collateral review and is not afforded review of claims previously litigated or waived. 42 Pa.C.S. § 9543(a)(3) & (a)(4); 42 Pa.C.S. § 9544(a) & (b); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 726 (2000).
In addition to detailing the types of claims that are cognizable under the PCRA, the PCRA further limits collateral review by utilizing jurisdictional time limitations. These limits provide that a PCRA petition must be filed within one year of the date the judgment became final. 42 Pa.C.S. § 9545(b)(1). Furthermore, any petition filed outside of the one-year jurisdictional time bar is unreviewable unless it meets certain listed exceptions and is filed within sixty days of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(1)(i)-(iii) & (b)(2). The 1995 amendments to the Act, which adopted the time-bar, also provide that if the judgment of sentence became final before the January 16, 1996 effective date of the amendments, a PCRA petition will be considered timely if it is filed within one year of that date, or by January 16, 1997. But this grace period only applies to first post-conviction petitions filed as of right, not serial petitions. As this Court explained in Commonwealth v. Fahy, “where the judgment becomes final on or before the [PCRA’s 1995] amendments’ effective date, a petition will be deemed timely if the petitioner’s first petition is filed within one year of the effective date of the amendments.” 558 Pa. 313, 737 A.2d 214, 218 (1999) (emphasis original).
The Legislature, however, did not speak to whether there is a fight to supplemental state collateral review following a federal habeas mandate, which results in a new penalty hearing. It could be argued that the PCRA’s silence on this issue indicates that a defendant who receives a new sentencing proceeding as a result of a federal habeas order cannot invoke the PCRA even as to his new sentence. Therefore, the foundational question, properly framed, is whether the PCRA allows any new and additional collateral attack following a resentencing occasioned by a grant of federal habeas relief.
The parties and the PCRA court assumed the answer to this statutory question was “yes” with limited reasoning. We agree, but not because the PCRA by its terms plainly requires such review. Instead, we find the answer in the fact that this Court has construed the PCRA broadly to encompass those types of claims that would have been available for review under common law habeas corpus principles, in order to effectuate the PCRA’s explicit role as the repository for claims which would otherwise have been available under state habeas corpus. See Commonwealth v. Bennett 930 A.2d at 1276-77 (Saylor, J., dissenting) (outlining history). The new sentencing proceeding and its result are the cause of the defendant’s continuing restraint; and that proceeding is sufficiently distinct from the initial sentencing proceeding that collateral review of issues specific to the resentencing is consistent with the plain intent and purpose of the PCRA. But, the calculus is entirely different when the defendant seeks to invoke the new sentencing judgment as a basis to pursue, as of right, issues that do not arise from the resentencing proceeding. And, as explained below, the nature of federal habeas review, and the limited role played by the lower federal courts in “reviewing” final state criminal judgments, corroborates that a limited grant of federal habeas sentencing relief does not give rise to a “right” to full-blown serial PCRA review of a trial whose result (conviction) has long been final.
In order to understand the role of the federal courts and the purpose of federal collateral review of state convictions, some background is in order. The U.S. Constitution does not mandate any federal habeas corpus review of a prisoner’s confinement following a final state judgment of conviction: the availability and scope of the writ in that circumstance is Congress’s prerogative, see, e.g., Felker v. Turpin, 518 U.S. 651, 662-63, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), though the Court might step in if Congress failed to resolve the question. Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). The first Congress did not make the writ available to state prisoners; it was not until 1867 that Congress created a general power for collateral review; “[a]nd it was not until well into [the 20th] century that [the U.S. Supreme] Court interpreted [the legislation] to allow a final judgment of conviction in a state court to be collaterally attacked on habeas.” Felker, supra. The U.S. Supreme Court’s expansion of the civil writ to permit inquiry into federal issues other than the jurisdiction of the state court is an even later development. See Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (plurality opinion by Thomas, J., and concurring opinion by O’Connor, J., debate precise beginnings of expanded use of writ). The Court’s expansion of the writ authorized the lower federal courts to reexamine the merits of a state prisoner’s federal claims, even if those claims had been fully and fairly litigated in state court, and without any deference to the state court’s determination. See Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). As a result, lower federal court judges were permitted to upset state court criminal judgments anytime they disagreed with the state court’s resolution of a federal claim, effectively giving the lower federal courts control over the state courts’ findings, including those of the highest court of a state, notwithstanding that state courts are coequal to the lower federal courts on questions of federal law.
A growing sensitivity to concerns of federalism and comity eventually led to a corrective adjustment of this federal habeas review scheme, and it was the U.S. Supreme Court itself that initiated those corrective measures, beginning in the 1970s. “These retractions were policy-based limitations on the availability of the habeas remedy. That is, the Supreme Court established by case law various rules under which the habeas court would refrain from granting relief, even though it had the jurisdiction to do so.” Scheidegger, supra, at 933 (discussing retractions); see Calderon v. Thompson, 523 U.S. 538, 554-55, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (given “the profound societal costs that attend the exercise of habeas jurisdiction” over state convictions, “we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief’) (citations omitted) (listing examples of retractions). One of the key retractions was the nonretroactivity principle that derived from Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). The Teague restriction, which has since been repeatedly embraced by the U.S. Supreme Court as a majority rule, e.g., Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), generally “prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final.” Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). By preventing federal habeas courts from upsetting state court judgments that were correct under the federal constitutional rules in existence at the time of trial, the Teague rule restored a measure of respect for the sovereign state courts, and placed some limits on the lower federal court’s power to overturn reasonable state court determinations of federal questions. “The ‘new rule’ principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts, ... and thus effectuates the States’ interests in the finality of criminal convictions and fosters comity between federal and state courts.” Gilmore v. Taylor, 508 U.S. 333, 340, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993). By the same token, the Teague rule recognized that habeas relief should be available only where the legitimate purpose of habeas review would be served, i.e., as an “additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards.” Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), quoting Teague, 489 U.S. at 306, 109 S.Ct. 1060, quoting Desist v. United States, 394 U.S. 244, 262-63, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting).
In the wake of Teague and its progeny, the U.S. Congress went even farther in restoring respect for the sovereignty of the states in the realm of federal habeas review of state convictions. Thus, in 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which included a new and deferential federal habeas standard of review. Under 28 U.S.C. § 2254(d), federal habeas relief may be granted to a state prisoner only if the state court’s review of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts----” Under AEDPA, the federal court is no longer free to grant a state prisoner habeas relief simply because the court disagrees with a state court determination of a federal question. Moreover, a state court judgment can be said to be unreasonable under federal constitutional law only when it is measured against settled precedent from the highest court in the land.
In contrast to the substantive standards governing federal habeas review of state convictions, the nature of the habeas remedy has remained comparatively constant. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the U.S. Supreme Court, per Justice Brennan, addressed the habeas remedy, noting that when a federal court determines that the right of personal liberty has been denied by the state and a person confined as a result, “the federal court has the power to release him ... it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner.” Id. at 430-31, 83 S.Ct. 822 (emphasis added). Indeed, federal habeas corpus proceedings are civil in nature because they exist “for the enforcement of a right to personal liberty, rather than as a stage of the state criminal proceedings or as an appeal therefrom....” Id. at 423-24, 83 S.Ct. 822. Thus, a proper grant of federal habeas relief to a state prisoner does not purport to revise or interfere with the state court’s criminal judgment. Fay, supra; Henderson v. Frank, 155 F.3d 159, 168 (3d Cir.1998). Indeed, any attempt to so interfere is patent error. See, e.g., Dickerson v. Vaughn, 90 F.3d 87, 92 (3d Cir.1996) (district court should not directly order state court to grant defendant an appeal); Smith v. Lucas, 9 F.3d 359, 367 (5th Cir.1993) (district court’s directive to Mississippi state courts to impose sentence of life imprisonment did not comply with federal law); Duhamel v. Collins, 955 F.2d 962, 968 (5th Cir.1992) (federal court does not have authority to commute death sentence to sentence of life imprisonment); Magwood v. Smith, 791 F.2d 1438, 1450 (11th Cir.1986) (federal district court and court of appeals have no appellate authority over state court and, hence, have no authority to “remand” case to state court).
Instead, federal habeas directives to state authorities are designed to be coercive. Thus, the federal courts issue a “conditional” grant of the writ, which delays implementing the writ, ie., the release of the prisoner, to allow the state the opportunity to correct the perceived constitutional violation. H., 155 F.3d at 168 (“It would seem that federal habeas power is limited, first, to a determination of whether there has been an improper detention by virtue of the state court judgment; and second, if [the federal court] find[s] such an illegal detention, to ordering the immediate release of the prisoner, conditioned on the state’s opportunity to correct constitutional errors that [it] concluded] occurred in the initial' proceeding.”); see also Smith, 9 F.3d at 367; Duhamel, 955 F.2d at 968. Such indirect orders not only pay heed to the historical use of the writ and the interests of the habeas plaintiff, but also recognize the significant state interests at stake. As the U.S. Supreme Court explained in Jackson v. Denno, 378 U.S. 368, 393, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), “a state defendant should have the opportunity to have all issues” tried in a state court “under appropriate state procedures.” But the “State, too, has a weighty interest in having valid federal constitutional criteria applied in the administration of its criminal law by its own courts and juries.” Id. The federal remedy should be narrowly designed to enable the state court to fulfill its constitutional obligation. Dickerson, 90 F.3d at 92; see also H., 155 F.3d at 168 (noting “federal courts have most often granted the relief in habeas cases that has required the least intervention into the state criminal process.”). Furthermore, once the state court or other authority timely acts to address the perceived violation forming the basis for the issuance of the conditional writ, the final writ will not issue.
Having set forth our understanding of the terms and nature of the PCRA, the nature of federal habeas review of state court convictions, and the limited role played by the lower federal courts in reviewing final state court judgments, the answer to whether the federal civil collateral order entered in this case operates to reopen the final Pennsylvania judgment concerning the verdict of guilt is clear. It does not.
Lesko’s federal habeas petition raised claims attacking both his conviction and his penalty. His guilt phase claims were specifically rejected; the relief he received was confined to the penalty proceeding. Thus, the Third Circuit’s order authorizing conditional issuance of a writ of habeas corpus provided:
For the reasons stated in this opinion, we will reverse the judgment under review [i.e., the judgment of the federal district court] to the extent that it sustains the imposition of the death penalty. We will remand to the district court for the holding of an evidentiary hearing on [Lesko]’s claim that his Indiana County guilty plea was not voluntary and for the subsequent issuance of the writ insofar as the death penalty is concerned.
We will direct the district court to issue the writ subject to the holding of a state court resentencing proceeding within a reasonable period of time to be set by the district court. If the district court determines, on the basis of the evidentiary hearing described in the last paragraph, that [Lesko]’s Indiana County guilty plea was not voluntary, the writ shall be issued subject to the additional requirement that evidence of the guilty plea not be introduced at the resentencing proceeding.
We will affirm the judgment under review to the extent that it sustains the determination of [Leskoj’s guilt.
Lesko v. Lehman, 925 F.2d at 1555.
On remand from the Third Circuit, the federal district court deemed the guilty plea related to the Indiana County murder to be involuntary “by the representation that it would not be introduced during the Westmoreland penalty phase hearing.” The district court’s order conditionally granting habeas relief respecting the penalty phase specified that evidence related to the “void plea cannot be introduced at the resentencing proceeding in the Westmoreland County case.” Lesko v. Lehman, 1992 WL 717815 (W.D.Pa.1992). The Westmoreland County Court of Common Pleas then conducted a second penalty hearing — not a trial on guilt or innocence — after which a jury of Lesko’s peers again sentenced him to death. Lesko was denied relief from the resentencing proceeding on direct review to this Court and this state collateral appeal is now before us under, and subject to the terms of, the PCRA.
In light of the nature of PCRA review, the limited effect of collateral federal proceedings on a final state criminal judgment, and the nature of federal habeas relief, we conclude that Lesko’s “right” to first petition PCRA review is necessarily confined to that part of the final Pennsylvania judgment that was disturbed by the federal habeas proceedings. All other aspects of the original judgment remain as before — final. The federal habeas court, far from purporting to upset the verdict of guilt, explicitly “affirmed” the district court judgment “sustaining” that aspect of the trial. The resentencing that occurred as a result of the coercive federal habeas mandate did not purport to revive the claims that expired once the 1981 verdict of guilt became final. The finality of the judgment must be analyzed in light of the context in which the subsequent proceedings occurred, including the intervening habeas proceedings. Thus, we hold that the 1981 Pennsylvania judgment of sentence is final for all purposes except for that part of the final judgment that was disturbed by the federal habeas proceedings, i.e., Lesko’s penalty phase proceeding.
Lesko’s judgment of sentence in terms of his conviction for first-degree murder became final in 1984, after his certiorari petition in the U.S. Supreme Court was denied. Lesko subsequently filed a timely PCHA petition, but was denied relief in 1985. Thus, Lesko did not qualify for the one-year tolling provision in the 1995 amendments as the instant filing represented a serial petition. See Fay, supra. (The Commonwealth’s suggestion that Lesko had until January 16, 1997 to file a timely PCRA petition raising claims of ineffectiveness of trial counsel at his 1981 guilt trial is incorrect.) Rather, Lesko had until January 16, 1996 — the date the 1995 amendments to the PCRA took effect, eliminating the ability to file serial PCRA petitions as of right — to file a timely second or subsequent PCRA petition raising claims arising from his 1981 guilt trial. To allow Lesko to pursue a PCRA petition as of right to raise new guilt phase claims more than 25 years later, after a direct appeal, an of-right PCHA petition, and completed federal habeas corpus proceedings, would render the time limitations of the PCRA meaningless.
Lesko emphasizes that because he was represented by the same counsel until the filing of his amended PCRA petition in 1999, the 1999 petition represented his first opportunity to challenge counsel’s ineffectiveness at his original trial in 1981. But, it is well established that the fact that a petitioner’s claims are couched in terms of ineffectiveness will not save an otherwise untimely petition from the application of the time restrictions of the PCRA. Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97 (2001).
Lesko further maintains that this Court’s decision in Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872 (2002), “unequivocally establishes the correctness of the PCRA court’s ruling that the guilt-stage issues from the initial trial in 1981 are substantively appropriate for PCRA review.” Brief of Appellee Lesko at 9. In Chambers, the appellant was convicted and sentenced to death in 1987. On direct appeal, this Court affirmed his conviction, but remanded for a new penalty trial. After Chambers was sentenced to death a second time in 1994, he filed a direct appeal and that judgment of sentence was affirmed. Chambers was represented by the same counsel from the time of trial through his appeal of his second penalty trial. Subsequently, represented by new counsel, Chambers filed a timely PCRA petition challenging his 1994 judgment of sentence. This Court addressed Chambers’ layered claims of ineffectiveness of trial counsel related to his conviction, despite the fact that the claims were raised in a PCRA petition that was filed more than one year after Chambers’ original conviction became final.
Chambers, however, is distinguishable from the instant case for several reasons. First, the Commonwealth in Chambers did not challenge the propriety of Chambers raising guilt phase claims and this Court did not raise such an inquiry sua sponte; in this case, the Commonwealth does recognize and pursue the jurisdictional issue. Second, the collateral proceedings following the new penalty phase in Chambers were state-court proceedings. Finally, Chambers’ PCRA petition was his first petition for collateral relief and not a serial petition following federal habeas review. Accordingly, we hold that the PCRA court did not have jurisdiction over Lesko’s claims related to guilt-phase errors and we reverse that portion of the PCRA court’s order.
II. BRADY CLAIMS
As discussed previously, the PCRA court granted both guilt and penalty phase relief as a result of Lesko’s Brady claims. Respecting the guilt phase, we note that a colorable Brady claim raised on serial collateral attack may qualify for review as an exception to the PCRA time-bar, depending upon the timing of the discovery of the alleged failure of the Commonwealth to disclose evidence, and whether the defendant diligently pursues the claim. See 42 Pa.C.S. § 9545(b)(1)(i) and (ii); Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 852 (2005). Given this fact, and the fact that the same alleged Brady violations formed the basis for the PCRA court’s grant of relief respecting both the guilt phase and the penalty phase, we will address the claims together, assessing the guilt phase under the PCRA’s serial petition restrictions, and the penalty phase under the PCRA provisions governing first petitions.
In his PCRA petition, Lesko raised three claims alleging that the Commonwealth violated Brady by failing to disclose material evidence. Specifically, Lesko contended that he should have been given a statement made by D.M. to Pennsylvania State Trooper Michael K. Steffee (the “Steffee report”); that he should have been provided with a copy of the written agreement between the Commonwealth and M. whereby the Commonwealth agreed not to prosecute M. for certain property crimes he allegedly committed with Travaglia; and that the Commonwealth failed to disclose the juvenile records of Commonwealth witness R.R., revealing that R. was given special treatment, including two four-hour furloughs from prison, prior to his testimony at trial. In addition to testifying at the 1981 trial, R. and M. testified at Lesko’s 1995 resentencing hearing.
The PCRA court agreed with Lesko, concluding that these three separate pieces of information should have been disclosed to the defense. The PCRA court explained that the Steffee report would have impeached M.’s testimony at the first trial and at the resentencing when he testified that Travaglia said, “Goddamn, or Jesus Christ, I shot a cop,” and Lesko replied, “I wanted to,” and then laughed. In an earlier statement to Trooper Steffee, however, M. had stated, “I don’t know anything about the cop getting shot,” and said nothing about any remarks made by Lesko.
The PCRA. court concluded that Lesko was unaware of this police statement until present PCRA counsel subpoenaed Pennsylvania State Police records from Harrisburg for the purpose of preparing for the PCRA proceeding. The court based this conclusion on the fact that at the PCRA hearing, both trial counsel and counsel for Travaglia testified that they had never seen the police report. Both counsel opined that the prior statement contained within the Steffee report provided important impeachment evidence, calling into question M.’s implication that Lesko evidenced his intent to kill the officer when he said, “I wanted to.” Additionally, the PCRA court noted that the Commonwealth did not deny that it did not provide the report to the defense. The PCRA court also noted that the Commonwealth’s Brady obligation extended to exculpatory evidence contained in the files of the police agencies of the same government bringing the prosecution, citing to Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) and Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001) (applying holding in Kyles). For these reasons, the PCRA court concluded that “[t]he Steffee report is a document that should have been provided to the defense, but for some unexplained reason, was not.” PCRA Court Opinion, 8/7/06, at 43-44 (record citations omitted).
The second piece of Brady evidence was the M. agreement, which consisted of the Commonwealth’s written agreement not to prosecute M. for robberies that he had committed with Travaglia. The PCRA court explained that although, prior to trial, counsel had requested all evidence “favorable to the accused which is material either to guilt or to punishment in the possession or direct control of the attorney of the Commonwealth,” the written agreement was never provided to counsel and counsel never questioned M. during cross-examination regarding whether the Commonwealth had agreed not to prosecute him in exchange for his testimony.
Similarly, related to the final piece of evidence, the PCRA court observed that R.’s juvenile record contained entries that indicated that he had received favorable treatment in anticipation of his testimony at trial. Again, the PCRA court suggested that this information was not provided to the defense.
Alternatively, the PCRA court implied that trial counsel may have known of these latter two pieces of evidence, but failed to demand them. Considering the reasonableness of counsel’s conduct, the court concluded that the evidence would have provided useful impeachment evidence and that counsel offered no strategic reasons for failing to request such information. Specifically, the PCRA court observed that trial counsel “made no attempt to impeach the credibility of M. on cross-examination and made a fleeting reference to an ‘agreement’ in his cross-examination of R., without any specific reference to the contents, substance or consequences of the agreement.” Id. at 45^46. The PCRA court indicated that these two sources of impeachment would have called into question the testimony of R. and M., who provided the basis for the jury to find that Lesko “intended” to kill Officer Miller. Additionally the PCRA court concluded that their testimony was not “inconsequential as it went directly to the most essential, and the only contested, element of the crime of murder of the first degree — intent.” Id. at 44-45. The court went on to suggest that it was the cumulative prejudice from the Commonwealth’s failure to reveal multiple pieces of exculpatory evidence, combined with counsel’s failure to interview witnesses and gather relevant impeachment evidence, which undermined the fairness of the proceedings. For these reasons, the court concluded that Lesko was entitled to a “new guilt-stage trial and a new sentencing hearing.”
The Commonwealth argues that the PCRA court erred in concluding that Lesko is entitled to a new guilt trial under Brady. According to the Commonwealth, the PCRA court erred in holding that the Commonwealth’s failure to provide Lesko with the Steffee report prejudiced him, because it “fail[ed] to account for other substantive evidence of motive and participation on the part of Lesko in the murder of Officer Miller,” and, therefore, even if Lesko’s statement “I wanted to” had been omitted from the trial, the jury’s verdict would not have been different. Brief of Appellant Commonwealth at 27. The Commonwealth points out that there was other very damning evidence of Lesko’s participation in the crimes, which overwhelmingly demonstrated Lesko’s specific intent to kill. The Commonwealth contends that Lesko’s own words “hit him again,” as related by R. at trial, speak most loudly “of Lesko’s full and active participation in the crime.” Id. at 31.
With respect to the Commonwealth’s failure to disclose the juvenile records of R. showing that he was granted two four-hour furloughs (at Thanksgiving and at Christmas), that he had a psychological condition, and that the Commonwealth thought it was “too risky” to try him before trying Lesko and Travaglia, the Commonwealth asserts that this evidence likewise would not have changed the outcome of the trial. The Commonwealth notes that R. had given an incriminating statement prior to being granted a furlough, and even if the furloughs could be offered as proof of a quid pro quo for R.’s trial testimony, the effect of impeaching R. would have made little impact in light of his testimony as an eyewitness and co-conspirator in the killing of Nicholls. The Commonwealth further maintains that it would not have been in Lesko’s self-interest to impeach R. since R.’s testimony “provided critical evidence concerning Travaglia’s drug abuse which would have inured to the benefit of Lesko as well,” id. at 38, presumably by offering the prospect of lessening Lesko’s culpability as an accomplice.
Finally, regarding the alleged failure by the Commonwealth to provide Lesko with a copy of its agreement not to prosecute M. for certain property crimes — namely, robberies — he allegedly committed with Travaglia, the Commonwealth argues that “Lesko has not established he was not given the agreement or the equivalent of the agreement in the March 26, 1980 statement [within which counsel for M. refers to the agreement as relating to crimes against property but not as to crimes against people].” Id. at 33. The Commonwealth further argues that the agreement would not have been useful for impeaching M. because M. had denied committing the crimes at the 1981 trial, and, furthermore, that such impeachment would have necessarily implicated Travaglia, which might have reflected poorly on Lesko.
In Brady, the U.S. Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. The duty to disclose may encompass impeachment evidence as well as directly exculpatory evidence. Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005). Furthermore, in Burke, we applied the U.S. Supreme Court’s later decision in Kyles, concluding that the prosecution’s duty when faced with a Brady request extends to exculpatory evidence in the flies of police agencies of the same government prosecuting the case. With regard to the issue of materiality, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different. Lambert, supra; see also Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 577-78 (2005) (to establish Brady violation, defendant “must establish that there has been a suppression by the prosecution of either exculpatory or impeachment evidence that was favorable to the accused, and that the omission of such evidence prejudiced the defendant”). However, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.” Chambers, 807 A.2d at 887.
Lesko’s Brady claims pertain to alleged impeachment evidence which he contends would have been useful in challenging at trial and at the resentencing hearing witness testimony that provided the basis for a finding that Lesko “intended” to kill Officer Miller, which was necessary to prove guilt for first-degree murder.
We will first consider the Brady claims as they relate to the guilt phase. With regard to the M. written agreement and R.’s juvenile records, we conclude that the claims are time-barred. Lesko proceeded below upon a theory that he was entitled to pursue his guilt-related claims in an of-right PCRA petition, and he made no effort to invoke or satisfy any of the PCRA’s time-bar exceptions. Thus, Lesko never stated when this information became available to him, nor did he claim that he raised the issues within sixty days of the date they first could have been presented under 42 Pa.C.S. § 9545(b)(2).
Furthermore, it is apparent from the existing record that these two claims are time-barred. Lesko’s own averments and the findings of the PCRA court (which incorporated an ineffectiveness of counsel aspect regarding these two averments as discussed above) indicate that trial counsel had knowledge of the M. agreement prior to the 1981 trial and, as discussed below, trial counsel clearly had knowledge that R. had an agreement with the Commonwealth at Lesko’s 1995 resentencing. Accordingly, given our conclusion that any errors related to the 1981 conviction are subject to the serial petition restrictions of the PCRA, and the fact that these Brady claims, are unavailable under the PCRA’s time-bar exceptions, we conclude that the PCRA court lacked jurisdiction to consider these two claims as they relate to the guilt phase.
The analysis regarding the Steffee report is different as it does not appear that Lesko received this report until after the second penalty hearing, after the PCRA petition was filed, and before the PCRA hearing. The PCRA court specifically determined that Lesko’s present counsel first learned of the contents of the report when he subpoenaed the records of the Pennsylvania State Police in preparation for the PCRA hearing and noted that the Commonwealth raised no objection on this point. Thus, unlike the prior two pieces of information, we have jurisdiction to review this claim as it relates to Lesko’s guilt phase. Nevertheless, the PCRA court’s reasoning underlying its grant of relief on this claim was erroneous as a matter of law.
Preliminarily, we note that, in finding that the Commonwealth violated Brady, the PCRA court relied upon the U.S. Supreme Court’s decision in Kyles, a case that was decided many years after Lesko’s trial. Kyles extended Brady to encompass evidence contained within the control of the relevant government and not just material possessed by the prosecutor. Neither the U.S. Supreme Court nor this Court has specifically answered the question whether the Kyles rule applies retroactively to pre-Kyles trials. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1127 n. 14 (2008) (noting that prior to Burke this Court maintained that district attorneys were not required to provide defense with evidence it did not possess and of which it was unaware, such as evidence exclusively within police custody). We need not answer the question here because, we hold, Lesko cannot establish materiality in the constitutional sense. See Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 291-92 (2008) (explaining competing positions for applying Kyles to pre-Kyles trial, but assuming for purposes of decision alone that Kyles applies since, in any event, appellant could not establish that evidence was exculpatory).
In order to prevail on a Brady claim, the defendant must establish that the evidence requested and allegedly withheld was material. Evidence is material “if there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Lambert, 884 A.2d at 854. Although the Steffee report contained a statement by M. denying any knowledge (i.e., he didn’t “know anything about the cop getting shot”), which could have been used to impeach M.’s testimony at trial that Lesko stated he “wanted to” shoot a police officer, we cannot agree with Lesko and the PCRA court that there was a reasonable probability that this information, had it been disclosed and employed as impeachment at trial, would have led to a different result.
The issue of Lesko’s intent was hotly contested at trial. The evidence showed that Travaglia was the triggerman and both men forwarded a defense that the murder of Officer Miller was not premeditated. Faced with such a defense, the Commonwealth did not limit its proof of Lesko’s intent to the testimony of M., but also presented evidence that Lesko and Travaglia jointly embarked on a crime spree on the night of Officer Miller’s murder, which began with the kidnapping and carjacking of William Nicholls. At the time they goaded Officer Miller into stopping Nicholls’ car, the confederates had already murdered Nicholls and possessed damning evidence of their involvement in that murder. The evidence also showed that Lesko participated in the theft of Travaglia’s father’s gun — the gun that was used to kill Officer Miller — and that Lesko and Travaglia intended to rob an Apollo Stop N’ Go store. That intention was thwarted by Officer Miller, who was parked directly across from the store. N.T., Volume I, 1981, at 358-60, 368-70, 373, 615-18. The account in the Steffee report would have been useful as impeachment by omission, of course. But, M.’s earlier non-cooperation with police would not have made his in-court testimony disappear, nor would it have altered the overall volume of abundant, independent evidence offered at the 1981 trial establishing Lesko’s course of conduct and intent. Lesko has not shown a reasonable probability that the result of the guilt phase would have been different if only trial counsel had been able to use the omission in the Steffee report to impeach M.’s in-court testimony.
Turning to the Brady claims as they relate to Lesko’s second penalty hearing, both M. and R. testified at this proceeding and, again, none of this information was used to impeach their testimony. Significantly, in addressing the Brady claims, the PCRA court did not conclude that evidence of the Steffee report, the Commonwealth’s agreement with M., or the juvenile files of R., if such had been provided to the defense, independently would have resulted in a different outcome. Rather, the PCRA court determined that it was the cumulative prejudice from the Commonwealth’s failure to produce relevant impeachment evidence, combined -with the prejudice arising from counsel’s failure to interview witnesses and gather relevant impeachment information, which resulted in a reasonable probability that “the outcome of the proceedings — that the jury found the Petitioner to have the requisite intent — would have been different, but for these errors.” PCRA Court Opinion, 8/7/06, at 46.
The PCRA court’s guilt-phase reasoning on this issue, however, does not readily translate to the resentencing. The PCRA court focused on the fact that this testimony was used to establish the intent to kill necessary for first-degree murder. Intent to kill, however, was not an issue at the resentencing. At the resentencing, the testimony was offered merely as background to establish the circumstances of the crime giving rise to the jury’s penalty phase duty. This background was not used to prove the existence of any aggravating circumstances, but was merely used to put the case in context for the jury. Thus, the PCRA court’s reasoning in support of its grant of guilt phase relief is not relevant or persuasive in the task of assessing Brady prejudice at the resentencing.
In any event, at the resentencing, trial counsel elicited testimony from M. that he had committed robberies with Travaglia prior to the murder of Officer Miller, N.T., 2/14/95, at 487; and trial counsel similarly elicited testimony from R. that he had a deal with the Commonwealth that he would be tried as a juvenile for the Nicholls murder and that the charges against him were ultimately dismissed, N.T., 2/13/1995, at 454. Indeed, trial counsel requested and the jury was given a corrupt source instruction regarding R.’s testimony. N.T., 2/17/95, at 19. For these reasons, we conclude that the PCRA court erred in holding that the result of the resentencing proceeding would have been different if counsel had impeached M. and R. with the Brady information.
III. PENALTY PHASE CLAIMS
The remaining claims allege ineffective assistance of resentencing counsel. In order to obtain relief based on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied the Strickland test by looking to three elements. Thus, in order to succeed on a claim of ineffectiveness, the petitioner must establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). Additionally, we note, the Sixth Amendment right to counsel is recognized “not for its own sake,” but because of the effect it has on the accused’s right to a fair trial. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation.... The purpose is simply to ensure that criminal defendants receive a fair trial.”). For these reasons, counsel is presumed to have rendered effective assistance. Both the U.S. Supreme Court and this Court have made clear that a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland, test, the court may proceed to that element first. Strickland, supra; Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (1998).
In granting Lesko penalty phase relief, the PCRA court found merit to Lesko’s claims that trial counsel was ineffective for failing to retain an appropriate mental health expert to examine Lesko, failing to provide relevant information to the mental health expert who was retained, and failing to adequately develop and present mitigation evidence. The PCRA court denied relief on the remaining claims Lesko raised related to the second penalty hearing and he has filed a protective cross-appeal raising the claims on which he was denied relief.
We first note that, in contrast to Lesko’s claims relating to his 1981 guilt trial, Lesko’s claims of error with respect to his second sentencing proceeding, including his ineffectiveness of counsel claims, are timely. As discussed previously, in 1995 Lesko was resentenced to death following a sentencing proceeding compelled by the federal court’s conditional grant of habeas relief. His new sentence became final after this Court affirmed the judgment on direct appeal in 1998 and the U.S. Supreme Court denied his petition for certiorari on January 19,1999. Lesko filed his PCRA petition on February 10, 1999, which was within one year of the date his new judgment of sentence became final, and the PCRA court thus had jurisdiction to address Lesko’s collateral challenges related to his 1995 resentencing proceeding.
A. Application of Pa.R.Crim.P. 801
The Commonwealth asserts that the PCRA court erroneously applied present-day attorney competency standards, namely, Rule 801 of the Pennsylvania Rules of Criminal Procedure, to determine the competency of counsel at Lesko’s second sentencing in 1995. Rule 801, which became effective in 2004, sets forth the qualifications for defense counsel in capital cases. In its opinion and order, the PCRA court set forth the language of Rule 801, and opined that the new standards enumerated the elements for adequate capital case representation. Nevertheless, the PCRA court specifically noted that “this rule was not effective or binding upon Mr. Marsh during the time he represented [Lesko],” and stated that it was merely recognizing “the heightened standard of representation that our highest court now demands of attorneys who are involved in capital cases.... ” PCRA Court Opinion, 8/7/06, at 8-9.
From the PCRA court’s statement, the Commonwealth argues that “[i]t is clear that the lower court improperly framed its analysis of the issues relating to ineffectiveness.” Brief of Appellant Commonwealth at 19. The Commonwealth overlooks, however, that the PCRA court specifically acknowledged that it would not apply the Rule 801 standards to Lesko’s trial counsel. Furthermore, the Commonwealth fails to identify any particular instance where the PCRA court analyzed a specific ineffectiveness claim under improper standards. Accordingly, the Commonwealth’s generalized Rule 801 complaint is without merit.
B. Capital Resentencing
Before turning to the penalty phase claims upon which Lesko was granted relief, we will first address Lesko’s claim that a death sentence should not have been deemed available at all following the federal habeas court’s order. Lesko contends that resentencing counsel was ineffective for failing to argue, after the conditional grant of habeas corpus sentencing relief in 1991, that “any capital resentencing would violate his life and liberty interest in the imposition of a life sentence following the reversal of his prior death sentence.” Brief of Appellant Lesko at 15. Lesko acknowledges that on the direct appeal of his resentencing, this Court rejected his argument that subjecting him to resentencing under the 1988 amendment to 42 Pa.C.S. § 9711(h)(4) constituted an ex post facto application of the law and a violation of due process. See Lesko, 719 A.2d at 220. But, Lesko asserts that his current theory of objection to capital eligibility “is materially distinct” from the claim raised on that appeal. Specifically, Lesko argues that if this Court had correctly granted him relief on his original direct appeal in 1983, he would have received a life sentence on remand by operation of law since at that time Section 9711(h) “vested in a capital defendant the right to a life sentence if his death sentence was overturned upon appeal.” Brief of Appellant Lesko at 15. He further argues that trial counsel had no reasonable basis for “failing to raise the life and liberty interest argument” following the federal “reversal” of his first death sentence, and that counsel’s failure to do so prejudiced him. Id. at 17.
The PCRA court rejected this claim on the basis that it was previously litigated. PCRA Court Opinion, 8/7/06, at 65-66.
Lesko is seeking to obtain relief on a previously rejected claim by casting it in terms of ineffectiveness, and faulting counsel for failing to forward a different theory. This Court has recognized that a Sixth Amendment claim of ineffectiveness raises a distinct ground for relief and thus this manner of presenting new theories on collateral attack is not per se precluded by the PCRA’s previous litigation restriction. Collins, 888 A.2d at 571. Nevertheless, we conclude that his attack on appeal counsel based on his new theory fails on the merits for the reasons expressed on direct appeal.
In rejecting Lesko’s claim on his resentencing appeal, this Court acknowledged that under the prior capital sentencing statute, if this Court found an error in the penalty phase, a remand for imposition of a sentence of life imprisonment would have been required. We then explained that the statute was amended in 1988 to provide that a new sentencing hearing must be conducted whenever a sentence of death is vacated, except where it is vacated for disproportionality or lack of evidence of aggravating factors. 42 Pa.C.S. § 9711(h)(4). Finally, we noted that we had already rejected, in other cases, the same argument as that made by Lesko and had concluded that the revised sentencing provision could be applied to cases that were pending in the appellate process at the time of the amendment. Lesko, 719 A.2d at 219-20 (case citations omitted).
Lesko does not explain how his current ineffectiveness claim can survive the reasoning of this Court in his direct appeal. He fails to provide any argument as to how counsel fell short in his presentation of this claim on direct appeal except to assert that counsel should have presented a “life and liberty” argument in support of the same claim. Such an argument does not change the jurisprudential nature of the claim that counsel presented on direct appeal. Furthermore, Lesko’s new claim, as stated, is meritless since he speaks of a “life and liberty” interest that supposedly matured following the federal court’s “reversal” of his prior death sentence. But, as we have pointed out at some length above, a conditional grant of coercive, collateral federal habeas corpus relief is not a “reversal” of a state court judgment. Nor does a lower federal court’s conditional habeas order prove that this Court’s affirmance of the initial death sentence was “incorrect.”
In any event, the interest of which Lesko speaks, if it existed at all, was a function and part of Pennsylvania’s direct review scheme, and Lesko’s success on collateral review in federal court is simply not the same thing as success on direct review in this Court. Lesko went to federal court, seeking the civil relief available in federal habeas proceedings; and Pennsylvania afforded him precisely the conditional relief that was ordered. He was entitled to no more. Finally, even if this Court were to agree that counsel’s presentation of this claim was lacking on direct appeal, we note that this Court has repeatedly rejected the argument that “retroactive” application of § 9711(h)(4) offends a defendant’s due process and equal protection rights, see Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 101 (1996), and has held that application of § 9711(h)(4) is constitutionally permissible. Commonwealth v. Young, 536 Pa. 57, 66, 637 A.2d 1313, 1317 (1993) (rejecting appellant’s argument that retroactive application of § 9711(h) “deprived him of the right to have his death sentence automatically modified to life imprisonment and the right not to face the possibility of a death sentence”). Lesko’s “life and liberty” theory is of no discernible, qualitative difference. Accordingly, Lesko’s underlying argument is -without merit, counsel was not ineffective, and the death penalty was an available sentence at the time of his second sentencing proceeding. We now turn to a consideration of trial counsel’s performance during that proceeding.
C. Failure to Present Additional. Mitigating Evidence
The PCRA court granted penalty phase relief on two different bases related to trial counsel’s failure to present additional mitigating evidence. The first basis related to expert testimony that Lesko contends should have been presented and the second basis related to additional mitigating .evidence that Lesko avers should have been discovered and presented. As these bases provided distinct grounds for relief in the PCRA court’s opinion, they will be discussed separately herein. We find that Lesko has not established that counsel’s performance was constitutionally deficient. Alternatively, we conclude that Lesko has not established Strickland prejudice. In that alternative assessment of prejudice, we will examine whether both grounds considered by the PCRA court, when considered together, would command a finding of prejudice. See, e.g., Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009) (“[I]f multiple instances of deficient performance are found, the assessment of prejudice properly may be premised on cumulation.”).
Respecting the expert testimony claim, the Commonwealth argues that the PCRA court erred in granting Lesko a new penalty phase based on his claims that trial counsel was ineffective for, inter alia, (1) failing to retain an expert, namely, a neuropsychologist, who could have provided a reliable evaluation of Lesko’s mental health and/or organic brain damage; and (2) retaining a clinical psychologist under circumstances, ie., insufficient preparation time and lack of material collateral information, which precluded the expert from conducting an appropriate evaluation and reaching a reliable diagnosis.
In addressing Lesko’s claims, the PCRA court was persuaded by the fact that three years before the 1995 resentencing, trial counsel consulted University of Pittsburgh law professor Welsh White, Esquire, who provided counsel with literature linking child abuse to organic brain damage. Professor White also provided counsel with a sample motion to obtain psychological and neuropsychological testing of Lesko. Counsel agreed that this information would have been important to present to the jury. The PCRA court found that it was significant that counsel did not consult a neuropsychologist, but instead retained a clinical psychologist, Herbert Levit, Ph.D., on February 6, 1995, and did so only after jury selection had already begun for the resentencing and only three days before the resentencing trial commenced. Furthermore, the PCRA court noted that trial counsel did not specifically advise Dr. Levit that he knew of the link between abuse and organic brain damage, and that it may provide an area of relevant inquiry. As a result, the PCRA court determined that Dr. Levit conducted a standard mental status examination, which was not designed to detect either cognitive or organic brain dysfunction. PCRA Court Opinion, 8/7/06, at 11.
In granting a new penalty hearing, the PCRA court also considered the information that Dr. Levit did not review, which included any prior psychological or psychiatric evaluations, trial transcripts or any of the discovery materials from the first proceeding, or any of the information in the Children and Youth Services (hereafter “CYS”) records that contained information concerning Lesko’s life history. The PCRA court determined that Dr. Levit’s expert opinion was based upon limited information.
In contrast, at the PCRA hearing, Lesko presented the testimony of Dr. Barry Crown, a neuropsychologist, who testified that both the institutional records and Dr. Levit’s evaluation contained indicia of brain damage that would have been revealed with neuropsychological testing tools and a properly qualified and competent evaluator. Dr. Crown detailed at length his opinion of which records would be red flags to one trained to find organic brain damage. On further examination by the PCRA court, Dr. Crown opined that he would have expected Dr. Levit to have responded to the red flags and suggested neuropsychological testing as the “prudent thing to do.” In Dr. Crown’s view, such red flags included Lesko’s unusual gait, exhibiting some form of psychomotor difficulty at an early age; Lesko’s experience in uninhabitable and deplorable housing conditions; the general and continuous neglect of Lesko’s and his siblings’ health; and the fact that he was set on fire by boys in the neighborhood, which resulted in a one-month stay in the hospital. Dr. Crown explained that these childhood circumstances were significant because the combination of “general neglect” and “a young child under stress, we know ... produces difficulties at critical stages in brain development.” N.T., 3/22/01, at 403, 404, 407, and 412, 448-49.
Dr. Crown also enumerated significant facts that he said were contained in the records: e.g., Lesko suffered from childhood insomnia, hyperactivity and headaches; he was described as having “episodic dyscontrol,” a form of organically impaired impulse control; he chronically suffered from inadequate nutrition; his mother was a chronic drinker, indicating that Lesko may have been subject to fetal alcohol involvement; a long and continuing history of high fevers and ear problems; and multiple indications of head trauma. The records also contained references to a long history of voluntary drug and alcohol abuse and exposure to environmental toxins. Furthermore, Dr. Crown noted that the records disclosed a history of blackouts, which would also indicate alcohol-related brain cell damage. According to Dr. Crown, this information should have alerted Dr. Levit that neuropsychological testing was warranted.
Dr. Crown also offered his opinion of the information provided by Dr. Levit, opining that the results of the Wechsler Adult Intelligence Scale (“WAIS”) intelligence test that was administered by Dr. Levit revealed neuropsychologically significant evidence of brain damage. According to Dr. Crown, not only did the test scoring suggest the need for further testing, but it was itself “a pathognomic sign[, m]eaning that it represents the very strong possibility and likelihood of a pathology, of an impairment, of a deficit” and “would be an extremely strong indicator of ... the strong likelihood of organic brain damage.” N.T., 3/22/01, at 383. Similarly, the results of Dr. Levit’s administration of the Bender Visual Motor Gestalt Test and the House-Tree-Person Test provided data that Dr. Crown believed suggested the need for further neuropsychological testing. Dr. Crown also testified that Dr. Levit’s diagnosis of Borderline Personality Disorder raised important issues relating to the possibility of brain damage, since the symptoms of Borderline Personality Disorder substantially overlap the behavioral manifestations of organic brain damage. Accordingly, in Dr. Crown’s opinion, Dr. Levit’s diagnosis, although limited, was yet another sign that Lesko was suffering from organic brain damage.
In its opinion, the PCRA court also noted that the CYS records (that were not provided to the defense until the April 2002 PCRA hearing) contained substantial evidence to support a conclusion that further neuropsychological testing was indicated. Among the indicators were the results of intelligence tests by school psychologists that were significantly similar to the most recent test results, and evidence that Lesko’s siblings also suffered from brain damage, dysfunction and mental retardation.
Finally, the PCRA court noted that Dr. Crown had administered a complete neuropsychological test battery to Lesko. As a result of those tests, Dr. Crown concluded to a reasonable degree of neuropsychological certainty that Lesko was brain damaged, and was brain damaged at the time of this murder. Dr. Crown offered an opinion that the type of brain damage he detected supported two mitigating circumstances-that Lesko suffered from an extreme emotional disturbance, 42 Pa.C.S. § 9711(e)(2), and that he had a significant impairment in his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, 42 Pa.C.S. § 9711(e)(3). The PCRA court further noted that the Commonwealth did not offer any expert testimony in opposition to Dr. Crown’s diagnosis and was unable to discredit Dr. Crown’s methodology or conclusions on cross-examination.
Based on the foregoing, the PCRA court concluded that, “the testimony of a neuropsychologist at the sentencing hearing with regard to [Lesko’s] organic brain damage would have added significant additional and relevant information for the jury to consider as it weighed mitigating factors against the aggravating factors.” PCRA Court Opinion, 8/7/06, at 16. The court then framed the question relating to counsel’s strategy and performance as whether counsel had any reasonable basis for having retained a clinical psychologist rather than a neuropsychologist to develop the mental health mitigation. Concluding that trial counsel had offered no reason for failing to hire a neuropsychologist, despite Professor White’s guidance, the court concluded that trial counsel did not act “responsibly”. See id. at 20. Finally, the PCRA court concluded that trial counsel presented a “paltry” amount of mitigating evidence, when measured against the overwhelming amount of evidence that counsel could have presented, and then awarded Lesko a new penalty hearing.
Turning to the appellate arguments presented by the Commonwealth, the first assertion is directed at the reasonableness of trial counsel’s conduct. The Commonwealth suggests that counsel purposely waited until the last minute to secure Dr. Levit so that Dr. Levit’s testimony that Lesko suffered from polysubstance abuse, a borderline personality disorder, and a poor upbringing could be “sprung” on the Commonwealth, which would then be denied the opportunity to retain its own expert to evaluate Lesko in an attempt to rebut Dr. Levit’s medical opinion.
With respect to the PCRA court’s determination that trial counsel was ineffective for failing to retain the services of a neuropsychologist to present evidence that Lesko suffered from organic brain damage, the Commonwealth points out that Lesko was examined by mental health professionals in Indiana County and Westmoreland County, and neither offered any indication that Lesko was brain damaged. The Commonwealth further contends that any fault in failing to raise the issue of organic brain damage “should be at the feet of Dr. Levit who was the retained expert. If Dr. Levit had insufficient information, that fact should have been made known to [counsel] who would have taken appropriate action.” With respect to Lesko’s claim that counsel failed to recognize the relationship between child neglect and child abuse and brain damage, and thereby failed to direct Dr. Levit to undertake such an inquiry, the Commonwealth responds “it is not the function of trial counsel to play mental health expert and direct the expert. Rather, the precise point of hiring an expert is to permit him to investigate and evaluate the case as the expert sees fit.” Brief of the Commonwealth, at 54-55, 57.
The Commonwealth also disputes the PCRA court’s finding that Lesko was prejudiced by counsel’s failure to present a neuropsychologist at Lesko’s resentencing, asserting that Lesko failed to show that testimony such as that proffered by Dr. Crown would have offered “a potential for success substantially greater than the course actually pursued.” Id. at 54 (emphasis omitted). In support of its position, the Commonwealth notes that Dr. Levit causally related Lesko’s disorder to genetics and the extremely dysfunctional nature of his upbringing. According to the Commonwealth, Dr. Crown’s opinion that Lesko suffers from brain damage “is merely to take the same facts and attach an additional label to them.” Id. at 51.
The PCRA court’s opinion is detailed and thoughtful in almost all regards on the instant issue and, indeed, on most of the issues it addressed. Nevertheless, we find multiple errors in the PCRA court’s analysis of this question, since it placed the burden of an expert’s knowledge on counsel’s shoulders and framed the reasonable strategy question narrowly without considering the course actually pursued by counsel at the resentencing.
When evaluating ineffectiveness claims, “judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Indeed, few tenets are better settled than the presumption that counsel is effective. Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 409, 427 (2009). This presumption arises from the recognition that it is all too easy for the defendant or the court to second-guess a strategy that has proven unsuccessful. Rather, a reviewing court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “Generally, where matters of strategy and tactics are concerned, counsel’s assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client’s interests.” Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008) (quoting Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (2002)). The U.S. Supreme Court explained a reviewing court’s role in making this determination when it stated:
[t]he court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in a particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
But, it is also well-settled under the Sixth Amendment that capital counsel has an obligation to conduct a reasonably thorough investigation for mitigating evidence or to make reasonable decisions that make further investigation unnecessary. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 655 (2008). In evaluating a claim of constitutional deficiency in investigating and presenting mitigation evidence, we consider a number of factors, including the reasonableness of counsel’s investigation, the mitigation evidence that was actually presented, and the additional or different mitigation evidence that could have been presented. Collins, 888 A.2d at 580. None of these factors is, by itself, dispositive, because even if the investigation conducted by counsel was unreasonable, this fact alone will not result in relief if the defendant cannot demonstrate that he was prejudiced by counsel’s conduct. Id.
The U.S. Supreme Court recently clarified the interaction between the performance and prejudice prongs of Strickland in instances where there was a finding that counsel’s investigation was unreasonable. See Sears v. Upton, — U.S. -, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010). In Sears, trial counsel employed a mitigation strategy of showing that Sears was from a stable, middle class family, who were shocked and dismayed by his actions and who would be devastated by the imposition of a death sentence. On collateral review, evidence emerged showing that Sears came from an abusive home life, had behavior problems from a very young age, and suffered from “significant frontal lobe abnormalities.” Id. at 3262. None of this evidence, however, was known to trial counsel, and the state post-conviction court determined that counsel’s investigation was inadequate. The state post-conviction court, however, did not grant relief because counsel had presented a mitigation theory with evidence to support it. Thus, the court concluded that Sears had “failed to meet his burden of proving that there is a reasonable likelihood that the outcome at trial would have been different if a different mitigation theory had been advanced.” Id. at 3264-65 (citing state post-conviction court opinion).
In vacating the state court, the High Court explained that if the reviewing court determines that counsel’s investigation was unreasonable, a “more probing prejudice” inquiry may be necessary, because a finding that counsel had conducted a constitutionally deficient investigation should call into question the reasonableness of the theory or theories that counsel pursued in mitigation. See id. at 3265. Explaining this point further, the Court indicated that pursuing a theory that might be reasonable in the abstract, “does not obviate the need to analyze whether counsel’s failure to conduct an adequate mitigation investigation before arriving at whether this particular theory prejudiced [the appellant].....Sears might be prejudiced by his counsel’s failures, whether his haphazard choice was reasonable or not.” Id. In light of these teachings, we first concern ourselves with counsel’s performance, i.e., whether counsel conducted an adequate mitigation investigation.
We begin by noting that this is not an instance where counsel failed to conduct any investigation and presented limited mitigating evidence, see Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 787-88 (2004); nor is it a case where counsel conducted minimal investigation and failed to uncover evidence that was immediately available to him. Instead, it is a case where counsel undertook a reasonable investigation and presented a compelling and partly successful case in mitigation, albeit the defense case did not ultimately carry the day.
Counsel presented the testimony of Dr. Levit, a clinical and forensic psychologist, at the resentencing hearing. Counsel established that Dr. Levit had been qualified as an expert witness in “several hundred” court proceedings and had “testified in many dozens of battered women homicides, have [sic] seen other types of homicide cases.” Dr. Levit testified that he interviewed Lesko and his family members, reviewed the available social history, and conducted psychological testing of Lesko. He also stated that one of the tests administered was sensitive to neurological impairment and was used to determine whether or not there was any organic brain damage. Dr. Levit opined that Lesko’s mental deficiencies were a combination of perhaps some genetic problems and his distressing home life. Additionally, he diagnosed Lesko with a borderline personality disorder resulting in extremely erratic and explosive behavior. Dr. Levit also opined that at the time the murders occurred, Lesko was suffering from voluntary polysubstance abuse, which included the use of illicit drugs and the excessive use of alcohol. As a direct result of Dr. Levit’s testimony, the jury found as a mitigating circumstance that Lesko was under the influence of extreme emotional or mental disturbance, 42 Pa.C.S. § 9711(e)(2). N.T., 2/15/1995, at 681, 685-86, 694, 701, 703-04.
Trial counsel also presented extensive social history through the testimony of a forensic social worker, Lois Nardone, and this information was given to Dr. Levit for purposes of diagnosis. Ms. Nardone, like Dr. Levit, testified that she conducted a number of interviews with Lesko and his family members as well as other persons involved in Lesko’s life. Significantly, Ms. Nardone testified that Lesko was abused by his grandfather every day; his mother was extremely promiscuous and had sex with strange men in front of her children; his mother left the children unattended for days at a time; his housing conditions were “deplorable;” at the age of five Lesko was set on fire by another child and was hospitalized for thirty-three days; at age six Lesko was sexually molested by a man; and Lesko and his siblings were frequently left unfed, dirty, and not properly clothed. N.T., 2/14/1995, at 582, 585-88. This small sampling of Ms. Nardone’s testimony gives a sense of what led to the jury’s determination that Lesko had a horrible childhood under the statutory catchall mitigator, 42 Pa.C.S. § 9711(e)(8). Contrary to the PCRA court’s legal findings, and mindful of the deference due to counsel, we believe that the record shows that trial counsel undertook a reasonable investigation, presenting an extensive psychological and social history in support of specific statutory mitigators, which made “the adversarial testing process work in [this] particular case;” in short, counsel “chose a particular course that had some reasonable basis designed to effectuate his client’s interests.” Strickland, supra; Puksar, supra.
To the extent that the PCRA court specifically faulted trial counsel for failing to consult with a neuropsychologist, we caution that, in applying Strickland, courts must be careful not to conflate the roles and professional obligations of experts and lawyers. In this regard, it is telling that Dr. Crown’s testimony at the PCRA hearing was directed at the examination conducted by Dr. Levit and not the strategy of counsel; thus, Dr. Crown opined that the results of some of the testing conducted by Dr. Levit raised “red flags,” which indicated that neuropsychological testing should be conducted. Certainly, these psychological “red flags” could not be directed at counsel, who was unschooled in mental health matters, but were directed at Dr. Levit. In fact, by the neuropsychologist’s own testimony, the diagnosis of Borderline Personality Disorder— a diagnosis made by Dr. Levit, not trial counsel — should have raised a question relating to the possibility of brain damage. Again, such opinions, if valid, may call into question Dr. Levit’s professional performance, but that is not the same thing as providing a basis to fault trial counsel’s legal performance.
The CO/DO posits that trial counsel should have provided Dr. Levit with additional documents of Lesko’s childhood abuse and neglect and such documents may have resulted in new or additional diagnoses of Lesko, including probable brain damage and substantial impairment in the capacity to appreciate the criminality of his conduct. The record shows, however, that Dr. Levit possessed information related to Lesko’s childhood abuse and neglect and that he used that information in forming his opinion. See id. at 685-86, 701-04. Additionally, Dr. Levit testified that Lesko was unable to conform his conduct to the requirements of the law, opining that Lesko’s “capacity to formulate good judgmental decisions” was highly questionable and that his ability to conform to the requirements of the law “was justly impaired.” Id. at 705-06. Accordingly, and again mindful of the deference to counsel that Strickland commands, we find that Lesko has failed to sustain his burden of proving the performance prong of Strickland. We note also that this case is distinct from the situation the High Court addressed in its recent Sears opinion because we find that counsel’s mitigation investigation and performance were reasonable under the Sixth Amendment.
Furthermore, even if we were to accept the PCRA court’s conclusion that counsel’s investigation was unreasonable and constitutionally deficient, and that there was some basis in law to say that lawyers are obliged to consult neuropsychologists, rather than clinical psychologists, in circumstances like these, we do not agree with the PCRA court that Lesko established that he was prejudiced under Strickland.
The Strickland test for prejudice requires the defendant to prove actual prejudice, that is, a reasonable probability that, but for counsel’s lapse, the result of the penalty proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury---Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 695-96, 104 S.Ct. 2052 (emphasis added). Ultimately, a reviewing court must question the reliability of the proceedings and ask whether “the result of the particular proceeding [was] unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Id. at 696, 104 S.Ct. 2052. Notably, in applying these concepts to the case before it, the Strickland Court ultimately determined that additional evidence of “numerous people” who thought the defendant Washington was a good person and the fact that a psychiatrist and a psychologist believed he was under considerable emotional stress did not establish a reasonable probability that the outcome of the penalty proceeding would have been different, given the overwhelming aggravating factors presented. Id. at 700, 104 S.Ct. 2052. In our view, Lesko has not established that the resentencing proceeding was rendered unreliable by counsel’s alleged lapse. This was a jury that found four mitigating factors, relating to two distinct statutory mitigating circumstances. Thus, the jury was engaged in a balancing of aggravators and mitigators, yet voted for death (just as Lesko’s first sentencing jury had). To find Strickland prejudice arising from the failure alleged herein, we must conclude that “there is a reasonable probability that, absent counsel’s failure to present the mitigation evidence he currently proffers, [Lesko] would have been able to prove at least one [more] mitigating circumstance by a preponderance of the evidence and that at least one jury member would have concluded that the mitigating circumstance(s) outweighed the aggravating circumstance(s).” Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1150-51 (2005) (citing 42 Pa.C.S. § 9711(c)).
The U.S. Supreme Court recently applied the. Strickland prejudice test in a context involving a defendant who, like Lesko, had committed multiple, heinous crimes. See Smith v. Spisak, — U.S.-, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010). In analyzing Spisak’s claim that his trial counsel’s closing argument was constitutionally inadequate, the Court reiterated the Strickland standard discussed herein and presumed, for “present purposes,” that counsel’s performance was inadequate. Nevertheless, the Court concluded that there was not a reasonable probability that a better closing argument would have made a significant difference in the outcome. In reaching this conclusion, the Court considered the context of the case, which included Spisak’s admission and supporting testimony that he committed three murders and attempted to commit two others. The Court stressed that at the time of the sentencing the jurors had fresh in their minds the government’s evidence regarding the killings as well as Spisak’s “boastful and unrepentant confessions and his threats to commit further acts of violence.” The Court also noted that the defense experts’ testimony, which was offered to show that Spisak suffered from a mental infirmity, was fresh in the jurors’ minds; and, the Court did not “see how it could have made a significant difference had counsel gone beyond his actual argument — which emphasized mental illness as a mitigating factor and referred the jury to the experts’ testimony— by repeating the facts or connections that the experts had just described.” Id. at 687-88. Notably, even the concurrence by Justice Stevens, which stressed “how thoroughly egregious counsel’s closing argument was,” ultimately concluded that Spisak was not entitled to relief in light of Spisak’s testimony and his “monstrous” crimes. Id. at 693.
The case sub judice obviously is not on all fours with the situation in Spisak. Most importantly, in this case we consider a claim of an allegedly incomplete mitigation presentation, and not a deficient jury argument. But, the opinion is instructive as to how this Court should address the question of prejudice under Strickland. The Spisak Court made clear that the prejudice analysis must be viewed in the context of the case; and in this case, the developed penalty-related facts were grim indeed.
Prior to his resentencing, Lesko was convicted of two other murders committed the same week as this murder. These circumstances were unique and distinguished Lesko from the majority of other first-degree murderers. These murders provided the bases for the jury’s finding of the (d)(9) (significant history of violent felony convictions) and (d)(10) (multiple murder) aggravators. As if this unique criminal history was not weighty enough, in this case, Lesko was convicted for his participation in the first-degree murder of an unsuspecting on-duty policeman who did nothing more than pull over the car in which Lesko was driving. This fact provided the jury with a third, powerful aggravating circumstance — that the victim was a police officer killed in the performance of his duties, 42 Pa.C.S. § 9711(d)(1).
Furthermore, based on counsel’s presentation, the jury had found that Lesko was under the influence of extreme mental or emotional disturbance, § 9711(e)(2), and it is entirely speculative how much more weight the testimony of a neuropsychologist such as Dr. Crown would have lent to this mitigator already found. Of course, it is possible that opinion testimony on brain damage from a neuropsychologist might persuade a juror that Lesko was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law under Section 9711(e)(3). But, Lesko must also show that there is a reasonable probability that, in the overall evaluation, at least one jury member would have concluded that the mitigating circumstances outweighed the aggravating circumstances.
Faced with the aggravating circumstances where the defendant has been found guilty of multiple murders occurring within a one-week period, including the cold-blooded murder of an on-duty police officer, and the case in mitigation already successfully presented, we simply cannot conclude that Strickland relief can be premised upon the additional mitigation evidence the PCRA court found would have carried the day. The PCRA court failed to consider the full context of the case in rendering its finding as to Strickland prejudice. We do not believe there is a reasonable probability that further expert opinion evidence, including evidence of Lesko’s “organic brain damage” would have resulted in a different weighing and different penalty verdict when the aggravating circumstances were so patently grave, and the jury already found substantial mitigating factors, only to return with a verdict of death. This was not an instance where the sentence of death was “only weakly supported by the record.” Instead, it was a situation where the sentence was imposed with “overwhelming record support.” See Strickland, supra. Accordingly, Lesko has not proven that the outcome of the proceedings would have differed, but for counsel’s supposed failure.
The other mitigating evidence basis cited by the PCRA court, even when considered in tandem with the evidence of organic brain damage, likewise fails to provide a basis for Strickland relief. At the PCRA hearing, Lesko proffered the evidence contained in the CYS records and argued that counsel should have presented a number of live witnesses to relate that evidence. This information included details regarding the deplorable housing conditions in which Lesko and his siblings lived as children, and also detailed abuse and neglect at the hand of their mother. This abuse and neglect led to Lesko and his brother being placed in a shelter and later at the Holy-Family Institute. At the PCRA hearing, Lesko offered samplings of this live testimony, producing witnesses that he alleges resentencing counsel should have presented.
A similar argument was recently rejected by the U.S. Supreme Court in its per curiam order in Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009). The petitioner in Bobby, like Lesko, alleged that there was additional mitigating evidence that trial counsel should have uncovered. Specifically, the petitioner alleged that trial counsel should have interviewed other family members as well as a psychiatrist who treated his mother, all of whom could have “have helped his counsel narrate the true story of [the petitioner’s] childhood experiences.” In rejecting the claim, the Court returned to the standard announced in Strickland, explaining:
This is not a case in which the defendant’s attorneys failed to act while potentially powerful mitigating evidence stared them in the face, or would have been apparent from documents any reasonable attorney would have obtained. It is instead a case, like Strickland itself, in which defense counsel’s “decision not to seek more” mitigating evidence from the defendant’s background “than was already in hand” fell “well within the range of professionally reasonable judgments.”
Bobby, 130 S.Ct. at 19 (citations omitted). Like the High Court in Bobby, we find that Lesko cannot establish that counsel’s performance was unreasonable.
Again, however, even if it is assumed that counsel’s performance fell below the Strickland threshold, any assessment of prejudice must recognize that much of this childhood information was already admitted through the testimony of Ms. Nardone, discussed previously. Indeed, the jury found that evidence of Lesko’s “horrible” childhood was a mitigating factor. Notably, under similar circumstances, the Strickland court did not find prejudice where the “proposed evidence would barely have altered the sentencing profile presented to the sentencing judge.” Strickland, 466 U.S. at 699-700, 104 S.Ct. 2052. In our judgment, there is not a reasonable probability that a life sentence would have been returned if only the mitigation evidence presented at trial had been supplemented by the mitigation evidence presented at the PCRA hearing, particularly given the strength of the aggravating circumstances detailed above. ' Accordingly, we conclude that the PCRA court erred in granting a new penalty hearing.
We now turn to the remaining penalty phase contentions Lesko raises on cross-appeal, which the PCRA court dismissed after considering them in its opinion.
D. Failure to “Fully Litigate” Claim that Prosecutor Improperly Commented on Lesko’s Silence
The first alternative issue on which Lesko claims penalty phase relief is due relates to the prosecutor’s cross-examination of Lesko at the resentencing and the prosecutor’s closing arguments related to the same testimony. Lesko contends that the prosecutor’s cross-examination and comments violated his Fifth Amendment right to remain silent and prejudicially undercut the testimony given by both Lesko and Dr. Levit at the resentencing. According to Lesko, the Third Circuit granted him a new sentencing hearing on a similar claim implicating his right to remain silent. Additionally, at the resentencing “the prosecutor flouted [the Third Circuit’s] ruling, improperly commenting on and questioning [Lesko] about his right to remain silent, employing in this violation testimony from the 1981 proceedings that had been reversed [sic] on these very grounds.” Brief of Appellant Lesko at 33. Lesko acknowledges that counsel objected to the cross-examination and moved for a mistrial and also recognizes that counsel renewed the claim on direct appeal, but asserts that counsel had no strategic basis for “not fully litigating this claim” by failing to explain the “substantial prejudice” resulting from the prosecutor’s improper comment on his right to remain silent. Id. at 86.
Before turning to the legal issue presented, some background is in order. Lesko did not testify at the guilt phase of his 1981 trial, but did testify at the penalty phase, limiting his testimony to matters concerning his personal background. During his habeas proceedings, Lesko forwarded a claim that the prosecutor’s penalty phase closing argument violated the Fifth Amendment when he commented on Lesko’s mitigating evidence as follows:
Good character and record. All of the character witnesses limited their testimony to a certain period of time. We heard about John Lesko up to a certain point.
Auid I want you to consider that. John Lesko took the witness stand, and you’ve got to consider his arrogance. He told you how rough it was, how he lived in hell, and he didn’t even have the common decency to say I’m sorry for what I did. I don’t want you to put me to death, but I’m not even going to say that I’m sorry.
Lesko v. Lehman, 925 F.2d at 1540. Lesko argued to the Third Circuit that the prosecutor’s statement about his failure to express remorse violated his Fifth Amendment privilege against self incrimination.
The Third Circuit agreed. The Third Circuit rejected the Commonwealth’s assertion that the prosecutor’s statements were an appropriate comment on Lesko’s demeanor at trial, after examining the substance of Lesko’s testimony. The federal court explained that Lesko had testified only to his deprived childhood and family background, but did not testify concerning the merits of the charges against him. According to the court, the “natural and necessary interpretation” of the prosecutor’s comments was that Lesko had a moral and legal obligation to address the charges against him and apologize for the crime. Thus, the comments amounted to a condemnation of Lesko’s failure to testify about his role in the events surrounding the murder; yet, such testimony could have been self-incriminating. Therefore, the Third Circuit determined that the comments violated due process as they penalized Lesko’s Fifth Amendment privilege against self-incrimination. Lesko v. Lehman, 925 F.2d at 1544-45.
Lesko uses the Third Circuit’s analysis as a springboard for his instant claim, urging this Court to view the circumstances at the resentencing in the same manner as the circumstances discussed above. But the circumstances at the resentencing were very different. Lesko testified at the resentencing hearing, claiming that he was under the influence of drugs and alcohol at the time of the murder. Dr. Levit indirectly corroborated this testimony with his opinion that Lesko was a polysubstance abuser during the relevant period. On cross-examination of Lesko, the prosecutor attempted to undermine Lesko’s credibility by pointing out that, at the 1981 penalty phase hearing, Lesko had testified but had said nothing about being under the influence of alcohol or drugs at the time Travaglia and he murdered Officer Miller. Trial counsel initially objected when the prosecutor pursued this impeachment, but was overruled by the trial court, and counsel failed to renew the objection when the prosecutor continued this line of questioning. The prosecutor returned to this subject during his closing argument when he asserted that it was telling that Lesko had not testified to his drug and alcohol abuse during the 1981 sentencing proceeding, by stating:
Don’t you think that would be important when you committed these homicides ... to tell the jury that I was drunk, that I had drugs and didn’t know what I was doing, don’t you think that would be something you would remember? ... After 15 years, he’s remembered that detail.- He remembers all of his drug and alcohol abuse ... but in 1981, he didn’t mention a word to the jury about that, a word. What other defense is there? He forgot this defense.
N.T., 2/16/1995, at 173. Trial counsel objected and moved for a mistrial after the prosecutor completed the closing argument, but the motion for a mistrial was denied.
According to Lesko, the error at the resentencing was the same error on which the Third Circuit granted conditional penalty phase relief, since the prosecutor again improperly commented on his right to remain silent at his 1981 trial when the prosecutor asked him about his failure to testify as to his drug and alcohol use at those proceedings.
The PCRA court concluded that this issue was previously-litigated on direct appeal when Lesko presented the argument that the prosecutor’s closing argument amounted to an impermissible comment on his right to remain silent. 719 A.2d at 221-222. Lesko, however, has presented this collateral claim in terms of ineffective assistance of direct appeal counsel, which requires a more precise examination. See Collins, supra.
Nevertheless, Lesko has failed to demonstrate that direct appeal counsel’s performance concerning this issue was deficient for the same reasons the Fifth Amendment claim was rejected on direct appeal. Namely, on direct appeal following resentencing, this Court properly focused on the fact that the circumstances addressed by the Third Circuit and those raised at resentencing were distinct. This Court noted that Lesko’s testimony on his supposed voluntary intoxication was offered to establish a mitigating circumstance. See Lesko, 719 A.2d at 222. Furthermore, we specifically acknowledged that the Third Circuit had granted Lesko conditional penalty phase relief from his first sentence of death premised on a perceived due process violation due to the prosecutor’s comment on silence as to remorse. Nonetheless, we pointed out that the Third Circuit’s relief was based on the limited nature of Lesko’s penalty phase testimony at the 1981 trial, during which he did not discuss the nature of the charges against him. At the resentencing, however, the prosecutor’s cross-examination and commentary addressed only the credibility of the testimony that Lesko actually provided at that proceeding; and the Third Circuit itself had specifically noted that Lesko could not “claim a Fifth Amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony.” Lesko, 719 A.2d at 222 (quoting Lesko v. Lehman, 925 F.2d at 1542). Thus, we held that the Commonwealth’s cross-examination and closing argument were proper because they were directed at testing the veracity of the testimony that Lesko had actually presented respecting his voluntary intoxication. Id.
Having failed in his direct appeal challenge to the prosecutor’s impeachment, Lesko now forwards a derivative ineffectiveness claim based upon the very same circumstances. Lesko faults counsel for failing to object on the ground that the prosecutor’s questioning and comments improperly undermined the credibility of Lesko and his expert, Dr. Levit. This derivative argument, although sounding in the Sixth Amendment, adds nothing to the substance of the underlying Fifth Amendment claim that was addressed and rejected on the merits on the resentencing direct appeal. Lesko does not aver that this Court’s reasoning on direct appeal was flawed or that counsel did not set forth the correct legal argument in support of his Fifth Amendment claim. Indeed, Lesko does not acknowledge or address this Court’s reasoning on the resentencing appeal. Instead, he simply declares, without explanation, that counsel did not fully develop the “substantial prejudice” resulting from the prosecutor’s comments, without even accounting for counsel’s argument.
The current focus of Lesko’s claim does not establish arguable merit for a claim of ineffectiveness deriving from an underlying claim previously rejected on the merits. The fact remains that Lesko opened the door to the voluntary intoxication impeachment at resentencing, and there is nothing improper in a party attempting to undermine the credibility of testimony through impeachment by noting a failure to forward a claim or defense during prior testimony on the same subject. Cf. Harrison v. U.S., 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (“A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives.... ”). Furthermore, the fact that properly admitted evidence is “prejudicial” is no basis for its exclusion. Accordingly, Lesko has not demonstrated that counsel was ineffective in failing to “fully” argue this issue on direct appeal.
E. Failure to Object to Commentary on Lack of Remorse
Lesko next argues that the prosecutor objectionably elicited evidence of, and then commented on, his lack of remorse at the time of arrest and that trial counsel was ineffective for failing to properly preserve an objection and pursue the issue on direct appeal. This argument involves Commonwealth witness Detective Frank Amity, who testified at the resentencing that Lesko gave police a statement after his arrest for the murder of Peter Levato, and after he had been given Miranda warnings. After Detective Amity read Lesko’s statement into the record, the prosecutor asked the detective what Lesko’s “demeanor” was at the time of this interview. Detective Amity responded, “I couldn’t see where he had any remorse over what he did.” N.T., 2/10/1995, at 62. Trial counsel objected, and the trial court sustained the objection and instructed the jury “to disregard the statement.” Id. at 62-63. The prosecutor then cautioned the detective not to offer a conclusion, and rephrased his question, not in terms of demeanor, but in terms of what Lesko expressed during the interview: “[w]as there any remorse expressed by him at this interview?” Detective Amity responded, “no.” Id. at 63. This time, counsel did not object. Thereafter, however, counsel requested a mistrial, asserting that the prosecutor “snuck in” the testimony of absence of remorse. The prosecutor responded he did not “prompt Detective Amity in any way in terms of telling him to say there was no remorse” and also stated that it was not prejudicial because the issue was made relevant by the defense argument that Lesko had shown remorse. The trial court denied the motion for a mistrial. The prosecutor referred to the exchange in closing, asserting that Lesko’s “attitude” had not changed while he was in prison.
According to Lesko, this line of inquiry and comment improperly introduced a non-statutory aggravating circumstance (absence of remorse) for the jury’s consideration. Lesko avers that counsel’s failure to object to the second exchange was “inexplicable” and then he declares that counsel could have had no reasonable strategy for failing to object and for failing to pursue the claim on appeal.
The Commonwealth responds that the evidence and commentary it produced on Lesko’s lack of remorse was a fair and proper response to the defense penalty phase opening, and Lesko’s subsequent testimony, that Lesko felt remorse for his crimes. The PCRA court likewise concluded that the underlying issue was without merit because Lesko had put his remorse at issue.
In a brief, final paragraph of his argument Lesko responds that the PCRA court erred in holding that he opened the door to rebuttal evidence on remorse because it was “simply impermissible” for the Commonwealth to rebut his remorse mitigation evidence with evidence concerning his silence at the time of his arrest. Brief of Appellant Lesko, at 38-39. In support of this argument, Lesko cites to Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), for the boilerplate proposition that the right to remain silent “without penalty for doing so” is a fundamental trial right.
Lesko’s primary underlying argument, i.e., that rebuttal evidence about his lack of remorse violated his constitutional rights by introducing a non-statutory aggravating circumstance, is meritless. In general, the credibility of a witness may be impeached by any evidence relevant to the issue, except as provided by statute or rule. See Pa.R.E. 607(b). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact ... more probable or less probable....” Pa.R.E. 401. Moreover, the U.S. Supreme Court has indicated that a defendant cannot claim a Fifth Amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony. See Jenkins v. Anderson, 447 U.S. 231, 235-36, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Harrison, supra.
In this case, Lesko produced affirmative evidence of his remorse as a mitigating circumstance, and counsel argued the point in both opening and closing to the jury. The Commonwealth obviously was entitled to challenge the sincerity of the late expression, no less than it was entitled to rebut his testimony of voluntary intoxication by noting the failure to forward that claim when he testified at the first sentencing proceeding. See Lesko, 719 A.2d at 222. Rebuttal of mitigation evidence does not introduce a non-statutory, additional aggravating circumstance; hence, Lesko’s claim of counsel ineffectiveness fails.
Of course, the question of whether the particular manner of rebuttal here was proper, a point which Lesko adds in the final paragraph of his argument, is different and distinct. As noted, Lesko argues that rebutting his claim of remorse with evidence of his failure to express remorse at the time of his arrest was improper because admitting such evidence is “simply impermissible.” Lesko does not develop this absolutist argument any further, and it was not addressed by the Commonwealth or the PCRA court.
The PCRA court’s failure to address this sub-argument no doubt resulted from the confusing and prolix nature of Lesko’s filings below. Lesko did not raise this sub-issue in his initial PCRA petition; instead, his complaint tracked his primary theory that the Commonwealth injected an improper aggravating circumstance by rebutting his expression of remorse. In his second supplement to the petition, Lesko did include a one-paragraph argument stating that comments on a defendant’s failure to express remorse violate the Fifth Amendment. Notably for present purposes, however, Lesko did not specifically tie the argument to the right to remain silent at the time of arrest, as he does now. Rather, Lesko simply declared that, “had [he] expressed remorse for the killing, the Commonwealth would have presented that as evidence of guilt at trial. Eliciting the absence of such a confession violates the Fifth Amendment and Article 1, Section 9 (a defendant ‘cannot be compelled to give evidence against himself) as much at the guilt-stage as it does at sentence.” Second Supplement at 32-33, ¶ 610. Lesko then appended a general ineffectiveness paragraph to the entire claim two paragraphs later. It is not clear that the one-paragraph theory appended to Lesko’s primary argument on appeal is the same as the one belatedly identified below; hence, the claim arguably is waived. See Pa.R.A.P. 302.
In any event, whether waived or not, the claim does not warrant a grant of relief. The U.S. Supreme Court has held that a defendant’s silence following Miranda warnings is “insolubly ambiguous” and thus cannot be used at trial for impeachment purposes. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, the High Court has also explained that if the defendant waives his right to be silent and talks to the police, as Lesko did here, then Doyle’s prohibition does not apply to cross-examination that inquires into the prior statements. “Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 65 L.Ed.2d 222 (per curiam) (1980). The Court has not clarified whether the Fifth Amendment prohibits using a defendant’s failure to volunteer his remorse as a basis upon which to infer a lack of remorse. See, e.g., Mitchell v. United States, 526 U.S. 314, 330, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (“Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it.”). Lesko’s absolutist argument fails to address these complexities.
The Fourth Circuit recently discussed the remorse question in United States v. Caro, 597 F.3d 608, 629 (4th Cir.2010), pointing out that there was a split of authority among the federal courts as to whether the Fifth Amendment prohibits using silence to show lack of remorse. Notably, the Caro court cited the Third Circuit Lesko decision as an example of a case opining that a defendant’s failure to apologize, i.e., his silence as to remorse may not be considered as lack of remorse, consistently with the Fifth Amendment. But, the Caro court also noted that other circuits had concluded that silence may be considered as indicating a lack of remorse without violating the Fifth Amendment because lack of remorse speaks to other penological interests, such as a failure to accept responsibility for the crime, rehabilitation and deterrence. Thus, at the very least, the Fifth Amendment basis for objection posed by Lesko is not so easily determined as he would have it.
Further complicating any assessment of trial counsel’s stewardship in failing to forward a Fifth Amendment-based objection to the reference to Lesko’s failure to volunteer remorse when he spoke to the police is the state of the law in Pennsylvania at the time of resentencing. At that point, this Court had repeatedly held that a defendant’s right against self-incrimination had no application in the penalty phase of a capital trial. See, e.g., Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). Indeed, we continued to follow this principle until Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003), when we recognized that the U.S. Supreme Court had ruled in 1981 that the Fifth Amendment privilege in fact applies to the penalty phase of capital trials:
Notwithstanding the line of authority from this Court relied upon by the Commonwealth, it appears that the United States Supreme Court — the ultimate authority on Fifth Amendment questions — has indicated that the constitutional privilege does apply to the penalty phase of capital trials. See Estelle v. Smith, 451 U.S. 454, 462-63, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (“We can discern no basis to distinguish between the guilt and penalty phases of [a] capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.”); see also Mitchell v. United States, 526 U.S. 314, 325, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (“Where a sentence has yet to be imposed ... this Court has already rejected the proposition that ‘incrimination is complete once guilt has been adjudicated’ ”) (quoting Estelle, 451 U.S. at 462,101 S.Ct. 1866, 68 L.Ed.2d 359).
827 A.2d at 410. In posing his absolutist Fifth Amendment theory, and then claiming counsel was ineffective for not pursuing that theory, Lesko does not account for the complicating factor of the extant precedent of this Court in 1995.
Consistently with Strickland, this Court has been wary of holding counsel ineffective for failing to object when the governing law was unsettled. See, e.g., Commonwealth v. Fletcher, 604 Pa. 493, 986 A.2d 759, 801 (2009) (counsel not ineffective when his conduct was predicated on established law or when he failed to predict change in law). On the other hand, Estelle was the controlling U.S. Supreme Court authority on the question of the applicability of the Fifth Amendment privilege at capital penalty proceedings, and it was in existence at the time of resentencing. Of equal relevance, counsel had available to him the federal habeas opinion in this very case that he argued in the Third Circuit, where the court had parted ways with this Court’s conclusion that Fifth Amendment violations were not cognizable in penalty phase proceedings, citing to Estelle. Moreover, although federal law was not clear then (nor is it now) respecting whether the Fifth Amendment prohibits the type of impeachment at issue in this case — where Lesko waived his Miranda rights and gave a police statement, but where the no remorse inference was being drawn from a failure to volunteer remorse — counsel again had to have been aware of the Third Circuit’s holding in the habeas appeal in this case. Whether right or wrong, as discussed in our resolution of the prior issue, the Third Circuit held that the Commonwealth’s argument at the first penalty phase that Lesko had failed to express remorse when he testified was an improper comment on his right against self-incrimination at trial. The panel viewed the commentary on remorse to be a matter going to the merits of the charges against Lesko, as to which he had a right to remain silent, and concluded that Lesko did not broach that subject merely because he had testified to his abusive childhood and family circumstances as mitigation evidence, while remaining silent concerning remorse.
Under these circumstances, and solely for purposes of decision, we will assume that counsel could have forwarded a Fifth Amendment-based objection to the form of the Commonwealth’s manner of rebutting Lesko’s expression of remorse, and we will assume further that such an objection might have been sustained because of the Third Circuit’s conclusion in the habeas proceedings. Lesko’s ineffectiveness claim nevertheless fails because he has not proven Strickland prejudice, i.e., a reasonable probability that the outcome of the resentencing proceeding would have been different but for this rebuttal.
As discussed previously, Lesko himself was permitted to testify as to his changed character and his remorse for his crimes, as a mitigating circumstance. Defense counsel also presented the testimony of Graterford Prison Chaplain Hamid Abdul, who supported Lesko’s testimony by testifying as to Lesko’s service to others during his incarceration on death row, the fact that he had found faith, and that Lesko was repentant. N.T., 2/14/1995, at 647-657. Lesko’s expression of remorse was in the present tense, and was part of a larger claim that he was a changed person after being imprisoned on death row for fifteen years. Defense counsel’s closing argument highlighted the theory when he stated, “[w]e know that something has happened in the life of John Lesko in the prison in Graterford. We know that something happened.” Counsel argued that there was “something vital happening” in Lesko’s life, noting that Chaplain Abdul had testified that Lesko had been affected by his life in prison in a positive manner. N.T., 2/16/1995, 187, 193. Concluding this line of argument, defense counsel stated:
Do we see any of that in the life of John Lesko before say 1984, 1985? No. We see drugs. We see molestation. We see sex. Wee [sic] see despair. We see hopelessness. We see anger. We see rage, quiet rage, the worst kind of rage, internalized rage, quiet rage, the most deadly rage. Not once in the story presented to you did you hear of John Lesko doing good work and what’s happened in that cell in Graterford Prison.... John has helped bring sanity to hell. That’s the some [sic] and substance of the Chaplain’s words.
Id. at 194-95.
Lesko never intimated that he had felt remorse at the time of this murder or his other crimes. But, the prosecutor’s rebuttal was backward-looking, as it was limited to Lesko’s failure to express remorse at the time of his arrest. The Commonwealth’s rebuttal did not address Lesko’s overarching “I’m a changed man” theme. Notably, and presumably as a result of Lesko’s remorse and reformation testimony and the corroborating testimony of Chaplain Abdul, at least one juror found as a mitigating circumstance Lesko’s change in character over the last fifteen years of his confinement under the catchall mitigator, 42 Pa.C.S. § 9711(e)(8). Thus, it appears that Detective Amity’s statement regarding Lesko’s failure to express remorse at arrest was unsuccessful at blunting the point in mitigation that Lesko sought to make. On this record, and particularly in light of the strength of the aggravating circumstances (as we have addressed at length above), we conclude that Lesko has not proven Strickland prejudice.
F. Deficient Cross-Examination of Detective Amity
Lesko’s next argument is again directed at the testimony of Detective Amity, but this time he faults trial counsel for failing to adequately cross-examine the detective on his testimony that Lesko had drawn a gun on him when the detectives entered the hotel room to arrest him and his co-defendant. According to Lesko, he told his trial counsel that the detective’s account was untrue: in fact, he did not draw a gun. Moreover, Lesko argues that the detective’s account is incredible because he believes that, if he had drawn a gun on Detective Amity, the officer surely would have shot him. Lesko also asserts that trial counsel should have cross-examined Detective Amity with two police reports on the same subject, one of which reported that Lesko raised a gun under the sheets while he was in bed and the other of which reported that Lesko stood up and took a gun out of his belt. According to Lesko, these inconsistent details of how he drew his gun would have challenged Detective Amity’s credibility concerning whether he drew a gun.
The PCRA court reasoned that Lesko’s argument regarding what Detective Amity would have done had he drawn a gun on him relied purely on speculation and was unfounded. Furthermore, the PCRA court pointed out that the two reports cited by Lesko did not help him, since in both versions, Lesko clearly possessed a gun. Accordingly, the court failed to see how the “slightly different versions of the manner in which [Lesko] produced the gun makes a difference or creates an issue.” PCRA Court Opinion, 8/7/2006, at 47.
The PCRA court’s opinion on this issue is well-reasoned. Lesko’s unsubstantiated belief that criminals never pull guns on police without getting shot is rank speculation, contradicted by common sense and experience. Lesko’s alternative argument, concerning the detective’s prior statements, ignores the fact that the extant police reports corroborated Detective Amity’s central testimony that Lesko possessed a gun at the time of his arrest. Of course, Lesko himself was free to testify and directly contradict the detective, and have the jury decide who was telling the truth. But, the fact that Lesko would dispute the account does not mean that the detective’s account was rendered inherently implausible. Additional cross-examination by counsel would have accomplished little, since the reports all supported the core of Detective Amity’s testimony. Counsel is not obliged to pursue unpromising avenues of impeachment.
G. Jury Instructions
Lesko’s next argument focuses on the trial court’s refusal to instruct the jury regarding the procedural history of the case. Lesko avers that the jury should have been instructed that the resentencing was a result of prosecutorial misconduct. In a series of speculations, Lesko contends that, in the absence of such an explanation, the jury was left to speculate why the resentencing was occurring years after the original trial; the jury could have hypothesized that the resentencing was based on a mere technicality; and, if that happened, arbitrary, capricious, and unreliable factors may have infected the jury’s sentencing determination. According to Lesko, the U.S. Supreme Court requires accurate instructions on procedure in order to guarantee constitutional safeguards, citing to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). Lesko acknowledges that counsel requested such an instruction at the resentencing hearing, which the trial court denied, but he argues that trial counsel was ineffective for failing to pursue the preserved issue on direct appeal.
The PCRA court reasoned that Lesko’s argument was vague as he had not and could not define what factors the jury supposedly considered by virtue of its ignorance respecting why a new proceeding was ordered. Furthermore, the PCRA court pointed out that the focus of the resentencing hearing was to determine the existence of aggravating and mitigating circumstances and, if it came to it, to consider whether the aggravating circumstances outweighed the mitigating circumstances. Thus, in the PCRA court’s opinion, the reason for the resentencing was of no moment for the jury. The PCRA court is correct.
The U.S. Supreme Court cases relied on by Lesko lend no support to his position. In Ramos, the Court held that a jury instruction that informed the jury that a life sentence could be commuted was not constitutionally infirm because, once the proceedings reach the penalty phase, “the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment. In this sense, the jury’s choice between life and death must be individualized. ‘But the Constitution does not require the jury to ignore other possible ... factors in the process of selecting ... those defendants who will actually be sentenced to death.’ ” Ramos, 463 U.S. at 1008, 103 S.Ct. 3446 (citation omitted).
Following on the heels of Ramos, in Caldwell, the state of Mississippi asserted that a prosecutor’s comments that downplayed the jury’s responsibility for its capital sentencing decision by calling its attention to the appellate review process did not violate the U.S. Constitution because Ramos made clear that each state must determine the extent to which a jury should be informed of post-sentencing procedures. The U.S. Supreme Court was not persuaded by Mississippi’s argument, because the prosecutor’s comments were not relevant to the jury’s sentencing decision. Instead, in the Court’s opinion, the prosecutor’s statements improperly urged the jury to view its decision as only a preliminary step in the sentencing process, thereby creating in the minds of the jury a belief that it was not ultimately responsible for the sentence imposed. “Creating this image in the minds of the capital sentencers is not a valid state goal, and Ramos is not to the contrary. Indeed, Ramos itself never questioned the indispensability of sentencers who ‘appreciate] ... the gravity of their choice and ... the moral responsibility reposed in them as sentencers.’ ” Caldwell, 472 U.S. at 336, 105 S.Ct. 2633 (citation omitted).
As a question of appellate counsel ineffectiveness, Lesko’s claim is a non-starter. Lesko cites no case or other authority that counsel could have invoked on direct appeal in support of a claim that the jury was required to be informed of the reason for the resentencing. Counsel’s task on appeal would have been to show error in the trial court’s discretionary ruling on his novel request; counsel had no relevant ammunition to pursue that argument.
Moreover, Lesko’s current formulation of what the jury should have been told, as the reason for resentencing, is inaccurate and argumentative. As discussed previously, and contrary to Lesko’s argument, the Third Circuit panel’s opinion that constitutional error occurred in the initial sentencing proceeding did not establish that “prosecutorial misconduct” required a new trial. Instead, the panel concluded that the prosecutor made “improper comments” that infected the trial with unfairness, rendering the sentence proceeding tainted by a denial of due process. See 925 F.2d at 1546. That opinion is no ground to gratuitously tell the jury that the Commonwealth committed “misconduct.” Moreover, even if the Third Circuit had found prosecutorial misconduct, such a finding would not represent some objectively accurate assessment of the proceedings: at most, it would represent the view of the federal panel which, in point of fact, was not the view shared by the Pennsylvania judges, including this Court, who reviewed the same sentencing proceeding. See Lesko, 467 A.2d at 300-01. A full and accurate explanation of the mechanics of that reality would be far more complex than Lesko poses, implicating the vagaries and uncertainties of a non-deferential habeas corpus review system that no longer exists. And, for purposes of completeness, explaining the reason for the resentencing presumably would require informing the jury that Lesko was denied relief in state court, which might very well suggest to the jury that the federally-ordered resentencing was indeed the product of a “technicality.”
Equally fundamentally, even if it assumed that an easy, fair and accurate description of the operation of the grant of federal habeas relief were possible, we agree with the PCRA court that here, as in Caldwell, the topic was irrelevant to the resentencing jury’s task, which involved passing upon aggravating and mitigating circumstances and weighing them. As the PCRA court aptly observed, the purpose of the procedures set forth in Section 9711 are directed at establishing whether the jury shall fix the sentence at death or life in prison. The jury’s knowledge of the reason for the resentencing would not further this goal. Accordingly, Lesko has not established that appellate counsel’s performance was deficient for failing to purse this issue.
Lesko next challenges the trial court’s instruction regarding the credibility of witnesses which, Lesko alleges, improperly singled him out. The resentencing court issued general instructions regarding witness credibility, which included, inter alia, an instruction to consider whether the witness had an interest in the outcome of the case and whether the witness had some friendship with or animosity towards the accused. Thereafter, the trial court issued additional, specific instructions. First, the court noted the testimony of M.L., Lesko’s brother, who was offered as a character witness, but who had been convicted of the prior crimes of robbery and burglary; the court then stated that “[t]he only purpose for which you may consider this evidence of a prior conviction is in deciding whether or not to believe all or part of [his] testimony____” N.T., 2/17/1995, at 18. Next, the court noted the testimony of R.R. and, given evidence of his possible participation and interest here, issued a corrupt source charge. See id. at 19.
The court then turned to Lesko’s testimony, adverting to its general charge by first stating that in “considering the defendant’s testimony, you are to follow the general instructions I have given you for judging the credibility of any witness.” The court followed this statement with the following instruction, which forms the basis for the instant ineffectiveness challenge:
You should not disbelieve [Lesko’s] testimony merely because he is the defendant. In weighing his testimony, however, you may consider the fact that he has a vital interest in the outcome of the case and you may take [Lesko’s] interest into account along with all other facts and circumstances bearing on credibility in deciding what weight his testimony deserves.
Id. at 19-20.
Lesko acknowledges that this instruction directed the jury not to simply disbelieve Lesko because he was the defendant, but he complains that it allowed the jury to consider his testimony “suspect, in violation of the Fifth and Fourteenth Amendments.” Brief of Appellant Lesko, at 43. Furthermore, Lesko points to the non-binding 1980 Pennsylvania Suggested Standard Jury Instructions recommending language that the defendant’s interest should be considered “just like the interests of any other witness,” and argues that the trial court should have included this language when instructing the jury. Lesko also avers that many of the witnesses had an interest in the outcome of the proceedings and it was unfair to single his testimony out; he then speculates that the court’s charge could have caused the jury to view his testimony as particularly “suspect.” Lesko argues that trial counsel was ineffective for failing to object to the instruction on this ground and failing to raise the issue on direct appeal.
The PCRA court considered the challenged instruction as a whole and concluded that it was not inflammatory or accusatory. Rather, “the charge cautioned the jury that it should not disbelieve [Lesko] simply because he was the accused.” PCRA Court Opinion, 8/7/2006, at 64. Accordingly, the court determined that there was no error in the charge and found Lesko’s derivative ineffectiveness argument to be without merit. We agree.
It is well settled that in reviewing a challenge to a jury instruction the charge, as a whole, must be considered. Furthermore, the trial court has broad discretion in phrasing the instructions, so long as the directions given “clearly, adequately, and accurately” reflect the law. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1142 (2008).
Viewing the instruction as a whole, the absence of language such as “just like the interests of any other witness” did not unfairly single out Lesko’s testimony, or suggest that it was “suspect.” In fact, the introductory sentence to the challenged charge clearly, adequately, and accurately instructed the jury that it was to apply the general credibility instructions to Lesko’s testimony just as it would to any other witness. Moreover, contrary to the assertions of Lesko, the charge did not tell the jury to consider his testimony to be “suspect;” it just told the jury that it could “consider” his obvious interest in the outcome in weighing his testimony. This is a benign charge. Furthermore, Lesko’s testimony was not the only testimony that was “singled out” for additional comment by the trial court. Instructions to the jury are to be fair and accurate; they are not required to embody points that a party more properly should make in argument. Accordingly, we agree with the PCRA court that this claim of counsel ineffectiveness lacks arguable merit.
H. Trial Court’s Discretionary Rulings
Lesko’s next claim relates to the trial court’s refusal to permit him to introduce evidence that co-defendant Travaglia had also received a sentence of death for the murder of Officer Miller. Lesko contends that such information would have been invaluable, since the evidence showed that he was not the triggerman, the Commonwealth prosecuted him on an accomplice liability theory, and his trial counsel argued to the jury that he was a minor participant in the crime. According to Lesko, the law requires that capital sentencing juries be given all information relative to a defendant’s mitigating circumstances and sentences received by more culpable criminal confederates, in his view, may prove a mitigating circumstance. Lesko cites Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), in support of his claim, arguing that Parker stands for the proposition that sentences received by more culpable confederates are relevant in determining whether the defendant’s lesser participation in the crime warrants a sentence other than death.
In his PCRA petition, Lesko posed this claim as one sounding in counsel ineffectiveness, albeit he devoted the bulk of his pleading to explaining why he believed the trial court “erred” in refusing to admit such evidence, and then merely appended a one-sentence allegation as to prior counsel’s ineffectiveness. (The argument in the petition was typical of the manner in which Lesko has presented his ineffectiveness claims.) Lesko’s complaint as presented in his appellate brief, however, alleges only trial court error. Any claim of trial court error is obviously waived, as Lesko could have raised it at trial and on direct appeal, but he did not.
The PCRA court evaluated the underlying, defaulted claim and deemed it to lack merit, without speaking specifically to the cognizable claim of counsel ineffectiveness. The court reasoned that Lesko and his co-defendant were sentenced by different juries and each jury was to assess the individual mitigating and aggravating circumstances as they related to each participant. The task for Lesko’s jury was to weigh the circumstances as they related to Lesko; his co-defendant’s penalty was irrelevant to that consideration. Furthermore, the PCRA court explained that Lesko’s challenge failed as it was simply a dressed-up challenge to the proportionality of his sentence. The Commonwealth echoes the PCRA court’s analysis, and likewise does not address the overarching, cognizable claim of counsel ineffectiveness.
As noted, Lesko poses his claim solely as a claim of trial court error, and has not argued a derivative claim of ineffectiveness on this appeal, even though he couched the claim in terms of prior counsel ineffectiveness below. The PCRA provides that a claim is waived when it could have been raised before trial, at trial, or on appeal. 42 Pa.C.S. § 9544(b). As Lesko’s current and exclusive claim of trial court error could have been raised on direct appeal and as it is no longer raised in terms of prior counsel’s ineffectiveness, it is waived.
Even presuming that the claim was not waived, we agree with the PCRA court that Lesko’s underlying claim lacks merit.
This Court has had the opportunity to consider this same question on prior occasions, in arguably more compelling circumstances, i.e., in circumstances where co-defendants received lesser sentences. In Commonwealth v. Haag, 522 Pa. 388, 562 A.2d 289 (1989), the appellant argued that his death sentence was arbitrary and capricious in light of the fact that the other participants in the crime did not receive death sentences. The appellant also contendfed that the trial court erred in refusing to apprise the jury of these lesser sentences. In resolving these questions, we explained that sentencing is a highly individualized matter and the aggravating and mitigating circumstances applicable to any one defendant are variable as well. Id. at 299. We also clarified that the disposition of the matters against the accomplices had no bearing on the appellant’s sentence. Id. at 298. Accordingly, we rejected the appellant’s argument. Id.; see also Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 547 (2006); Commonwealth v. Lopez, 578 Pa. 545, 854 A.2d 465, 471 (2004).
Lesko’s theory is nearly identical to the one pursued by Haag and rejected by this Court. While evidence that a capital defendant played a lesser role in the murder than a confederate may be relevant evidence in mitigation, the sentence received by a criminal confederate is not, especially given the individualized nature of sentencing. The sentences received by confederates are not probative of specific statutory mitigators, nor are they relevant evidence respecting the defendant’s character or record or the circumstances of the offense itself, which states must permit. See Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (capital sentencer cannot be precluded from considering, as mitigating factor, aspects of defendant’s character or record and circumstances of offense proffered as basis for sentence less than death); 42 Pa.C.S. § 9711(e) (outlining statutory mitigators, including character/record/circumstances catchall mitigator at subsection (e)(8), which “obviously mirrors the requirements of Skipper.” Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1054 (2002)). Lesko fails to acknowledge this governing authority much less does he attempt to distinguish it.
Moreover, the decision in Parker has no application here. Parker involved the High Court’s review of the process the Florida state courts followed in imposing and reviewing a sentence of death under the Florida statutory scheme. Lesko does not raise a similar challenge here.
Specifically, in Parker, the U.S. Supreme Court reiterated that the Fourteenth Amendment of the U.S. Constitution prohibits the arbitrary or irrational imposition of a sentence of death. In that case, the High Court was called upon to review the Florida Supreme Court’s decision affirming a sentence of death. The broad question presented was whether the sentence of death met federal constitutional requirements. In answering the question, the Court needed to determine the effect the trial court and the Florida appellate court gave to evidence of non-statutory mitigators. The U.S. Supreme Court concluded that before imposing the sentence of death, the trial court must first have considered the non-statutory mitigating evidence including, inter alia, the fact that none of the accomplices had received a sentence of death for the murders. The Court then concluded that the Florida Supreme Court also needed to consider the non-statutory mitigating evidence in reviewing the sentence of death. The state appellate court, however, did not do so. Instead, the state court struck two (out of six) aggravating circumstances relied upon by the trial court but neither conducted an independent weighing of the remaining evidence (including consideration of the non-statutory mitigating evidence) nor a harmless error analysis. The U.S. Supreme Court concluded that the state appellate court’s approach did not amount to meaningful appellate review of the death sentence, and, therefore, violated the Fourteenth Amendment’s prohibition against the arbitrary or irrational imposition of a sentence of death.
Lesko’s reliance on Parker is misplaced. Parker nowhere imposes a constitutional requirement that the sentence received by a co-conspirator be admitted as mitigating evidence. The mere fact that the Florida trial court permitted such evidence to be introduced during the sentencing phase of the proceedings, and that this was part of the factual scenario the U.S. Supreme Court was given, does not elevate it to a constitutional requirement. Rather, Parker stands for the proposition that an appellate court cannot ignore such evidence upon appellate review when that evidence is in the record and the appellate task, under the state review system in place, requires consideration of the whole record. In this case, there was no such evidence placed in the record. As stated previously, this Court has repeatedly concluded that evidence of the sentences received by co-defendants is not required to be included at sentencing. Further, the U.S. Supreme Court has not held, or even indicated, to the contrary. Accordingly, even if not waived, Lesko’s claim fails.
Lesko next argues that the trial court erroneously permitted evidence of his prior bad acts to be admitted, and that his trial counsel was ineffective for failing to seek an appropriate limiting instruction and for not pursuing the issue on direct appeal. Lesko points to the specific evidence that was admitted regarding the Levato, Newcomer, and Nicholls murders and contends that such evidence was unnecessary to prove any aggravating circumstances. Lesko also contends that evidence of the robberies that he allegedly committed with his co-defendant should not have been admitted as they were crimes for which he was not convicted. Furthermore, according to Lesko, this evidence, once admitted, should have been accompanied by an appropriate jury instruction to the effect that the evidence was not proffered to show his bad character or criminal propensity, but was only admitted for the limited purpose of establishing the history of the case.
The PCRA court addressed only the admissibility of the evidence, and noted that this claim was previously litigated on direct appeal. Lesko acknowledges that the underlying claim concerning admissibility was litigated on direct appeal, but insists that his current claim is reviewable to the extent it is based on counsel’s failure to seek a cautionary instruction, an issue that was not raised or addressed on direct appeal. We will consider the distinct, but limited Sixth Amendment aspect of the claim. Collins, supra.
On the direct appeal from his resentencing, Lesko argued that the Commonwealth should not have been permitted to present evidence regarding his prior bad acts, including specific evidence surrounding the nature and circumstances of the other three murders. In rejecting Lesko’s claim, this Court held that the nature and circumstances were relevant to the jury’s consideration of Lesko’s character and record. “The nature of the offense, as ascertained, through examination of the circumstances concomitant to its commission, has much bearing upon the character of a defendant, and indeed, without reference to those facts and circumstances, consideration of ‘convictions’ would be a hollow process, yielding far less information about a defendant’s character than is relevant.” Lesko, 719 A.2d at 224-25 (quoting Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460, 465 (1984)). Thus, we concluded that “since there has been no showing of undue prejudice, this was a relevant and proper factor in the jury’s consideration of the sentence which should be imposed.” Lesko, 719 A.2d at 225.
Recognizing that the question of admissibility and direct review prejudice has already been determined, we pass to the question of whether trial counsel was obliged to request a specific instruction from the trial court regarding the jury’s consideration of this same evidence. Of course, there was nothing to prevent trial counsel from requesting a cautionary charge, but Lesko has not established that his trial counsel did not have a reasonable trial strategy for failing to request such an instruction.
The Rules of Appellate Procedure provide that the argument section of the appellate briefs must direct the court’s attention to the relevant section of the record necessary to assess a claim. See Pa.R.A.P. 2119 and 2132. This is not a case where the PCRA claim was summarily dismissed; rather, there was a hearing below. Lesko does not point to the part of the PCRA hearing record which shows that trial counsel was asked and explained why he did not request a cautionary instruction. Furthermore, while PCRA counsel inquired into this area generally in his examination of prior counsel, our independent review of the record indicates that trial counsel was never asked his reasons for failing to request a cautionary charge; and yet that distinct point is the entire basis for Lesko’s current ineffectiveness claim, which is limited in scope given that the admissibility question was already litigated against him. See N.T., 12/16/1999, at 433-36. It is well settled that the decision whether to seek a jury instruction implicates a matter of trial strategy. See Commonwealth v. Hawkins, 586 Pa. 366, 894 A.2d 716, 730 (2006); Commonwealth v. Garcia, 585 Pa. 160, 888 A.2d 633, 638 (2005); Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608, 610 (1973). Accordingly, based on the record before us, and because Lesko has not established any ground for deeming counsel per se ineffective, Lesko has not sustained his burden of showing that trial counsel did not have a reasonable trial strategy for failing to request a cautionary instruction. See, e.g., Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277-78 (2008).
I. Duplicative Use of Aggravating Circumstances
Lesko next argues that the prosecution’s alleged “duplicative” use of the same facts to establish separate aggravating circumstances violated the Eighth Amendment. This is yet another claim where Lesko takes an issue actually litigated at resentencing and on appeal and claims that prior counsel was incompetent for failing to pose the issue properly. The underlying complaint here, as before, focuses on the Commonwealth’s reliance on the murders of Peter Levato and Marlene Sue Newcomer to establish the aggravating circumstances enumerated in both Section 9711(d)(9) (significant history of prior felony convictions) and Section 9711(d)(10) (defendant was convicted of another federal or state offense for which a sentence of life imprisonment or death was imposable) of the capital sentencing statute. Lesko acknowledges that trial counsel raised the same complaint at resentencing and on direct appeal, but he asserts that he was ineffective to the extent his argument failed to incorporate a constitutional component. The constitutional angle that Lesko now asserts is that the Eighth Amendment supposedly “does not permit” the jury to consider the same evidence multiple times in the weighing process. As support for his claim concerning what the Eighth Amendment allegedly prohibits categorically, Lesko cites to no binding authority, but instead cites to a federal capital case arising from Oklahoma the year after his resentencing proceeding, United States v. McCullah, 76 F.3d 1087 (10th Cir.1996), involving the distinct federal capital punishment scheme.
The PCRA court concluded that this claim was previously litigated and decided it adversely to Lesko on that ground. Lesko argues that the PCRA court’s finding gives insufficient consideration to his current Sixth Amendment claim of ineffectiveness or recognition that the claim raised on direct appeal was a claim of statutory construction, not of constitutional law. Lesko notes that, on direct appeal, counsel asserted only that it was error for the Commonwealth to introduce evidence of three aggravating circumstances arising out of the two murder convictions under the capital sentencing statute, 42 Pa.C.S. § 9711. We will proceed to the merits of the Sixth Amendment complaint, which is resolvable on the record.
The substance of Lesko’s claim is that counsel should have argued that the Eighth Amendment prohibits the duplicative use of evidence to establish multiple aggravating circumstances in the penalty phase. But this argument is thoroughly disingenuous: the single Tenth Circuit authority Lesko cites (which did not exist at the time of the sentencing) does not support his absolutist proposition; his argument fails to account for subsequent caselaw from that Circuit; and he ignores existing guidance from the U.S. Supreme Court, which, of course, is the pre-eminent, binding judicial source for what the Eighth Amendment could be said to prohibit.
In McCullah, the jury was presented with two statutory aggravating circumstances that the court concluded substantially overlapped. The first aggravating circumstance was that the defendant intentionally engaged in conduct which he knew created a grave risk of death and that such death resulted. The second aggravating circumstance was conduct intending that the victim be killed. The panel noted that, while the two circumstances were not identical per se, they “substantially overlapped”; and, indeed, the second circumstance “necessarily subsume[d]” the first one. The panel then summarily concluded that, “[s]uch double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” McCullah, 76 F.3d at 1111. Lesko selects only the latter, generalized quote, while ignoring that the court’s holding was premised upon one factor necessarily subsuming another. He then poses his selective account as if it defines Tenth Circuit law on the Eighth Amendment which, we are supposed to accept, also establishes the absolute parameters of the Eighth Amendment.
In addition to misrepresenting the McCullah case, Lesko’s argument fails to disclose to this Court that McCullah is not even the Tenth Circuit’s last word on the subject. Two years later, in Cooks v. Ward, 165 F.3d 1283 (10th Cir.1998), the court squarely rejected the very argument that Lesko now poses as if it were settled Eighth Amendment law. Pointing to the “substantially overlapping” analysis in McCullah, Cooks noted that McCullah did not “stand for the proposition that any time evidence supports more than one aggravating circumstance, those circumstances impermissibly overlap, per se. The test we apply is not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating circumstance ‘necessarily subsumes’ the other.” Id. at 1289. Lesko’s misleading argument concerning McCullah, thus, is patently meritless.
Furthermore, and also unacknowledged by Lesko’s federal counsel is the fact that the U.S. Supreme Court has had the opportunity to address the McCullah court’s reasoning in Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). The High Court avoided directly addressing McCullah’s “double counting theory” because it ultimately concluded that the aggravating circumstances at issue were not duplicative. The decision in Jones was a plurality on this issue, as Justice Scalia did not join this part of the opinion. But what is significant is that the plurality opinion introduced this issue by stating, “[w]e have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid____” Jones, 527 U.S. at 399, 119 S.Ct. 2090. No member of the Court disputed this fact. The plurality opinion is further instructive because it squared with the Cooks opinion when it later concluded that, “the factors as a whole were not duplicative — at best, certain evidence was relevant to two different aggravating factors.” Id.
Given this background, prior counsel obviously cannot be found ineffective for failing to formulate the Eighth Amendment issue Lesko has erroneously posed as a proposition certain, premised upon a misleading and incomplete account of the cases. In the case sub judice, there is no question that the challenged aggravating circumstances do not substantially overlap, much less does one “necessarily subsume” the other. Rather, by Lesko’s own assertions, this is an instance where the same evidence was introduced in support of two different, and distinct, statutory aggravating factors. Such a circumstance does not implicate the constitutional concern he faults counsel for failing to invoke. See Cooks, supra; cf. Jones, supra. Accordingly, Lesko has not established that counsel’s performance was deficient.
J. Presumption of Life
Lesko’s next argument derives from the resentencing court’s jury instructions respecting the verdict slip. Specifically, Lesko contends that the verdict slip instructions erroneously shifted the burden of persuasion to the defense, and “violated the presumption of life” by repeatedly telling the jury that it had to “reject a sentence of death” before it could “choose life.” Lesko also appears to urge this Court to conclude, on collateral review, that an explicit instruction on the “presumption of life” is necessary in all capital cases to comport with constitutional concerns. Lesko contends that trial counsel was ineffective for failing to object to the trial court’s instruction on these bases, and thereafter was ineffective for failing to raise the issue on direct appeal.
The PCRA court concluded that while the language of the sentencing court in explaining how to record its verdict on the slip was inartful, upon its review of the relevant charge as a whole, there was no error. In reaching this conclusion, the PCRA court considered that the portion of the charge that referred to recording the reasons for rejecting the death penalty appeared only in conjunction with the court noting that such an explanation was only required if the jury was recording a verdict of life imprisonment. PCRA Court Opinion, 8/7/2006, at 57, citing N.T., 2/17/95, at 33 (“If your sentence is life imprisonment, you should check the findings in C — 1 or C-2 [on the verdict slip] which explain why your jury rejects the death penalty and imposes a life sentence.”). The PCRA court also looked to the remainder of the charge, focusing on the fact that the trial court properly instructed the jury regarding aggravating and mitigating circumstances and the burdens of proof attendant to each. Thus, the PCRA court did not find arguable merit in Lesko’s claim of ineffectiveness in failing to object to the court’s jury instructions concerning how to record the verdict. We agree with the reasoning given by the lower court.
Preliminarily, we note that this Court has specifically rejected a claim that a capital defendant is entitled to a presumption of life charge. Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1138 (2007). Instead, we have held that jury instructions adequately convey the default in favor of life when the jury is instructed as to “the deliberately disparate treatment of the aggravating and mitigating circumstances under the applicable standards of proof’ and the fact that “life in prison is the sentence unless the Commonwealth meets its high burden....” Id. Moreover, when this Court has spoken of the “presumption of life” reflected in the penalty phase schemata, we were describing its practical operation (burdens of proof; levels of proof, relative weighing), consistently with restrictions dictated by the U.S. Supreme Court and the statute, which slant the inquiry in favor of life imprisonment. A synopsis of the practical operation of the capital penalty determination in an appellate opinion does not give rise to an entitlement to have what would amount to both a duplicative, and an argumentative, instruction concerning the jury’s duty. Indeed, by definition, since the “presumption” arises as a result of the manner in which the jury’s consideration is cabined, an accurate description of the process the jury must follow adequately conveys whatever “presumption” is operable.
Lesko’s claim mischaracterizes the trial court’s charge, both by ignoring its context, and by ignoring that the portion of the charge that is the basis for this claim concerned the mechanics of recording the verdict reached, and not the deliberations themselves. In point of fact, the trial court accurately explained the nature of aggravating and mitigating circumstances and the differing burdens of proof. Indeed, the trial court stressed that the different burdens of proof protected against “unjust death sentences.” N.T., 2/17/1995, at 27. Additionally, the trial court emphasized that the jury could only impose a sentence of death if it could unanimously agree on one of two findings by stating:
As I told you earlier, you must agree unanimously on one of two general findings before you can sentence the defendant to death. They are a finding that there is at least one aggravating circumstance and no mitigating circumstances or a finding that there are one or more aggravating circumstances which outweigh any mitigating circumstances____If all of you agree on either one of these two general findings, then you can and must sentence the defendant to death. When voting on the general findings, you are to regard a particular aggravating circumstance as present only if all of you agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what other jurors may believe.
Id.
Moreover, as the PCRA court found, the language regarding “rejecting” the death penalty was confined to a specific context when the trial court was directing the jury as to how it was to record, on the verdict slip, the verdict it had reached. It must be remembered that the verdict slip merely records the result of the jury’s deliberation; it is not the deliberation itself, and the court’s explanation of how to execute the slip is similarly discrete. The court first explained that in Part 1 of the.verdict slip the jury was to enumerate the aggravating circumstances that the jurors had found that the Commonwealth proved beyond a reasonable doubt and the mitigating circumstances as found by any one of them by a preponderance of the evidence. Then, when explaining Part 2 of the verdict slip (relating to recording the jury’s decision to impose a sentence of death), the trial court reiterated that the jury must unanimously agree that there was one or more aggravating circumstances and no mitigating circumstances or one or more aggravating circumstances which outweigh any mitigating circumstances “before [it] could sentence the defendant to death.” Id. at 30 (emphasis added). It was only following these accurate instructions that the allegedly objectionable language arose when the trial court was explaining how the jury should fill out the verdict slip if the jury had reached a sentencing verdict of life in prison. The court explained that if the decision already so reached was a sentence of life in prison then it should check certain findings on the verdict slip. It then followed this instruction by stating, “[the findings] explain why you are rejecting as a jury the death penalty in imposing a life sentence.” Thereafter, the trial court employed the phrase, “rejecting the death penalty” numerous times in the context of explaining this particular aspect of executing the verdict slip. Id. at 30, 31, and 33.
Based upon our review of the charge as a whole, we find no error in the PCRA court’s decision. The trial court clearly, accurately, and properly instructed the jury regarding the respective burdens of proof related to the aggravating and mitigating circumstances. See Eiehinger, supra. Furthermore, even if the repeated use of the phrase “rejecting the death penalty” in describing how to record the verdict already reached on the verdict slip was inartful, it was not erroneous when considered in context. As the PCRA court astutely observed, this phrase was only invoked when explaining to the jury how to use the verdict slip if it returned a verdict of life in prison. Accordingly, we agree that there is no arguable merit to this claim and Lesko has failed to establish that his counsel was ineffective.
K. Simmons Charge
Lesko’s next argument centers on trial counsel’s failure to request that the jury be instructed that if he was sentenced to life in prison he would not be eligible for parole (a so-called “life means life” instruction, deriving from the plurality opinion in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)). Lesko’s argument before this Court does not attempt to account for the state of the law at the time counsel acted, but instead begins with a complaint that the PCRA court did not specifically address a list of bullet “subarguments” he now provides. Lesko’s list consists of boilerplate, conclusory statements of supposed constitutional law, accompanied by unexplained string citations, with no attempt to tie the propositions to this case or to Strickland. Following this indiscernible, “briefing by brainstorming” argument, Lesko also requests that this Court revisit our prior case law concerning one aspect of Simmons, which holds that evidence in support of the significant history aggravator does not place future dangerousness at issue. In a particularly tortuous bit of reasoning, Lesko cites a 2002 case from the U.S. Supreme Court, Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), in support of his request that we alter our interpretation of Simmons and use that recalibration to find counsel ineffective in 1995.
The PCRA court concluded that it was bound by this Court’s interpretation of Simmons, and therefore such an instruction is only warranted when the future dangerousness of the defendant is actually placed in issue. PCRA Court Opinion, 8/7/06, at 48. The PCRA court reasoned that the future dangerousness of Lesko was not an aggravating circumstance placed before the jury; thus, the Simmons instruction was not required and counsel could not be ineffective for failing to make such a request.
The PCRA court’s opinion speaks too narrowly on this issue, as future dangerousness can be injected into the proceedings in circumstances other than as a specifically proposed aggravating factor. Indeed, in Simmons the prosecutor raised the “specter” of “future dangerousness” in closing arguments. Simmons, 512 U.S. at 157, 165, 114 S.Ct. 2187. On the other hand, Lesko’s arguments, requesting a broadening of our current law governing circumstances when a life means life instruction is required, and requiring that we fault counsel for failing to measure up to a new interpretation, are also without merit.
This Court has considered this issue on multiple occasions and in various forms. Yet, in assessing counsel’s performance, we always come back to the same rule of law represented by Simmons, which was accurately set forth by the PCRA court and is that a life means life instruction is only required in those instances when the defendant’s future dangerousness is placed at issue. See Commonwealth v. Housman, 604 Pa. 596, 986 A.2d 822, 837-38 (2009); Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 146-47 (2008); Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1243 (2006); Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786, 795 (1998). We have also rejected the alternative argument that Lesko makes regarding whether admitting evidence to prove the significant history aggravator automatically injects future dangerousness into the sentencing proceedings. Even if we were inclined to revisit those decisions, the fact would remain that counsel’s stewardship, in failing to ask for a Simmons charge (the year after the Simmons plurality decision was announced), cannot reasonably be questioned premised upon that changed view of the governing law. Accordingly, as Lesko’s future dangerousness was not placed in issue by the mere fact that the significant history aggravator was argued and proved by the Commonwealth and as he does not point to any other evidence that injected future dangerousness into the proceedings, the PCRA court correctly concluded that counsel cannot be deemed ineffective for failing to request a Simmons charge.
L. Jury Instructions on Aggravating and Mitigating Circumstances
Lesko’s next three arguments concern the jury instructions regarding aggravating and mitigating circumstances. First, Lesko points to language in the trial court’s instruction which directed the jury to consider whether the aggravating or mitigating circumstances made the first-degree murder of Officer Miller “more terrible” or “less terrible.” According to Lesko, the federal constitution micromanages what courts can say on this score as well. Thus, Lesko argues that such instructions unconstitutionally required the jury to find a nexus between the mitigating circumstances and the crime committed, when the U.S. Constitution requires the jury to consider any evidence that warrants a sentence less than death. Lesko does not address the fact that counsel failed to object to the charge at trial; nor does he argue in his brief that trial counsel was ineffective, under the state of the law extant in 1995, in connection with this claim. Like the claim related to the trial court’s failure to permit him to introduce evidence of his co-defendant’s sentence, although Lesko raised this issue in terms of trial counsel ineffectiveness in his PCRA petition, he has failed to present this claim in terms of counsel’s ineffectiveness in his brief before this Court. Accordingly, this claim of trial court error is waived. See 42 Pa.C.S. § 9544(b).
Lesko’s next argument concerns the trial court’s refusal to instruct the jury regarding what he calls “the mitigating features of age.” More specifically, he points to his supposed “emotional or psychological” age at the time of the offense and avers that the jury should specifically have been informed of these “mitigating features” in support of the age mitigating circumstance under Section 9711(e)(4). At the time of the murder, Lesko was 21. The trial court instructed the jury that Lesko’s age could be considered as a mitigating circumstance, see N.T., 2/17/95, at 26. The trial court, however, refused Lesko’s request to instruct the jury that in considering his age, the jury should consider his psychological and emotional age and level of maturity. Lesko acknowledges that his counsel requested such a charge, but asserts that counsel was ineffective for failing to pursue this issue on appeal.
The PCRA court acknowledged that U.S. Supreme Court case law indicates that “the background and mental and emotional development of a youthful defendant [must] be duly considered in sentencing,” but reasoned that the “emotional and psychological” consideration was encompassed by the court’s general instruction to the jury to consider all other mitigating circumstances pursuant to Section 9711(e)(8). According to the PCRA court, “[t]he fact that ‘age’ means ‘emotional age’ in addition to ‘chronological age’ is a matter that can be testified to by an appropriate expert witness, but is not an absolute instruction that should be given by the court.” PCRA Court Opinion, 8/7/06, at 61.
The PCRA court’s reasoning is sound. Lesko’s claim here repeats his usual pattern when it comes to jury instructions: he proceeds from an assumption that the evidence and arguments he would proffer in support of a relevant consideration must also be converted into a binding jury instruction. But, instructions are designed to guide the jury’s consideration of relevant evidence, not to reaffirm or approve of either party’s slant on that evidence. Consistently with the death penalty statute, the jury here was instructed to consider Lesko’s age at the time of the crime as potential mitigation. Lesko has not shown any basis in law for an entitlement to a more specific instruction that in considering his age (the relevant factor), the jury was obliged to specifically consider his theory concerning his supposed “emotional or psychological” age. Furthermore, as noted by the PCRA court, Lesko’s supposed “emotional or psychological” age may well have been a circumstance that was considered and accepted by the jury when assessing Lesko’s background and in finding that he acted under the influence of extreme mental or emotional disturbance. Thus, Lesko has not demonstrated that trial counsel was ineffective for failing to pursue this issue on appeal.
Lesko’s final argument regarding the trial court’s instructions on aggravating and mitigating circumstances focuses on the trial court’s instruction directing the jury not to be “swayed” by sympathy, sentiment or other emotion. Counsel did not object. Lesko speculates that the word “swayed” conveyed to the jury that it could not give effect to feelings of sympathy or emotion when arriving at its sentence. Furthermore, according to Lesko, such an instruction negated and created an impermissible barrier to the role of sympathy as a mechanism by which to give effect to the actual mitigating evidence presented. Lesko also argues that his trial counsel was ineffective for failing to share his speculations and objecting to the word “swayed.”
The PCRA court reasoned that a jury is not permitted to avoid imposing a sentence of death based on unbridled discretion or sympathy. Furthermore, the court pointed out that the trial court’s instruction was substantially similar to the instruction found in the Pennsylvania Suggested Standard Criminal Jury Instructions. Accordingly, it deemed Lesko’s underlying claim to be meritless. We agree.
Lesko’s view of the role of “sympathy” in the jury’s penalty deliberations fails to account for decisional law. Claims along this line have previously been considered and rejected by this Court on more than one occasion. Simply stated, “[a]s it is well established that a jury instruction not to allow feelings of sympathy to influence the sentencing consideration is constitutionally proper, counsel in this case were not ineffective in failing to object to such instruction.” See Natividad, 938 A.2d at 340 (quoting Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 818 (2007)). Lesko fails to acknowledge controlling law, and does not attempt to distinguish that law. We are not swayed by his claim.
M. Voir Dire
Lesko’s next four claims center on the absence of the resentencing voir dire transcripts from the record on his resentencing direct appeal. Lesko alternately faults his trial counsel for failing to secure those notes, and the resentencing court for failing to sua sponte see to it that the notes were transcribed. Lesko first claims entitlement to a “restoration” of his appeal rights nunc pro tunc so that he can pursue the voir dire issues that counsel failed to raise on direct appeal, asserting that the absence of the transcript “effectively denied” him the ability to raise such issues on direct appeal. In addition he alleges that the absence of the jury selection notes supposedly rendered this Court unable to conduct its statutorily required review of the sentence for passion, prejudice or arbitrary factors as mandated by 42 Pa.C.S. § 9711(h)(3)(i). Lesko contends that he had a constitutional right to have the penalty phase jury selection notes transcribed for purposes of his appeal from resentencing and the failure to provide these transcripts resulted in the complete denial of his right to counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Alternatively, with regard to his first point, Lesko avers that he can demonstrate that the result of the direct appeal would have been different as he can establish that relief was due because of the specific voir dire errors that will be enumerated and discussed below.
The PCRA court reasoned that the statute and rules of court governing capital appeals required that the complete record be transcribed, including voir dire notes. See PCRA Court Opinion, 8/7/2006, at 49-50. It also concluded that counsel had no reason for failing to make such a request, since he admitted during the PCRA hearings that he “just assumed it would be transcribed for [this Court] and they would review it.” The court disagreed, however, that Lesko’s direct appeal rights should be reinstated nunc pro tunc as the relevant portion of the record was transcribed for PCRA counsel, PCRA counsel had the opportunity to review the transcripts, and counsel had identified alleged errors on collateral attack. Thus, the PCRA court addressed the specific claims identified by current counsel on the merits.
For reasons we will explain below, the PCRA court erred to the extent it accepted Lesko’s argument that 42 Pa.C.S. § 9711(h)(2) and Pa.R.A.P. 2189 themselves imposed a stand-alone obligation on the part of the trial court to produce the “complete” record, including voir dire notes of testimony, for direct appeal. We also reject Lesko’s argument that this Court should grant him a nunc pro tunc appeal, or that we should presume that he was prejudiced per se by the mere failure to have the voir dire proceeding transcribed.
Preliminarily, we note that, although Lesko faults the trial court for the absence of the jury selection notes, and suggests that there is some obligation to “provide” a “complete” record in the abstract, that obviously is not the case. Rather, the appellant has a duty to frame what is needed. Thus, Rule 1911(a) of the Pennsylvania Rules of Appellate Procedure provides that “[t]he appellant shall request any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of Judicial Administration (court reporters).” Of course, if a party is indigent, and is entitled to taxpayer-provided transcripts or portions of the record, he will not be assessed costs. But, that does not absolve the appellant and his lawyer of his obligation to identify and order that which he deems necessary to prosecute his appeal. The plain terms of the Rules contemplate that the parties, who are in the best position to know what they actually need for appeal, are responsible to take affirmative actions to secure transcripts and other parts of the record. See, e.g., Commonwealth v. Steward, 775 A.2d 819, 833 (Pa.Super.2001) (noting that it was not the responsibility of the trial court to order the notes of transcript of defense counsel’s closing as Rule 1911 “makes it abundantly plain that it is the responsibility of the Appellant to order all transcripts necessary to the disposition of his appeal.”); Commonwealth v. Peifer, 730 A.2d 489, 492 n. 3 (Pa.Super.1999) (explaining that it is the responsibility of the appellant and not the court to provide a complete record for review, including any necessary transcripts). Lesko cannot fault the trial court for his own failures. Instead, it is only when an appellant can show that a request was made and erroneously denied, which is not the case herein, that such a claim would have merit. See Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 284-85 (2006). And that sort of claim ripens, and should be pursued upon, the very appeal that supposedly was impeded by a missing portion of the record, which is also not the case here.
Moreover, even when notes of testimony are properly ordered, the absence of notes does not generate some instantaneous, meritorious claim for relief. Instead, if the initially missing notes matter, it becomes a circumstance the appellant or his counsel needs to respond to by, for example, ordering notes counsel failed to order earlier; or seeking an order of court to have ordered notes promptly transcribed, or otherwise made available; or, where notes cannot be secured, to take steps to have an equivalent picture of the proceeding generated. See Pa.R.A.P. 1911(a); Pa.R.A.P. 1923 (statement in the absence of transcript); Pa.R.A.P. 1924 (agreed upon statement of the record).
There may be circumstances when the absence of notes of testimony hampers this Court’s statutorily mandated direct appeal review of death sentences under 42 Pa.C.S. § 9711(h)(3)® (mandating review of death sentence to determine whether it was result of passion, prejudice, or other arbitrary factor). And, thus, on a direct appeal, if the facts warranted the assertion, an argument could be forwarded that a portion of the record was missing, through no fault of the appellant, which impeded statutory review; and the appellant could request some court action to secure that which was missing, or to direct creation of an equivalent picture. But, this is not the type of situation Lesko poses. Instead, Lesko’s argument turns the shield of statutory review into a sword. He argues that the absence of voir dire notes should be deemed to have automatically impeded this Court’s statutorily mandated review for passion, prejudice, or other arbitrary factor, and thereby created a collateral right to automatic relief — even if he never took measures to secure the notes, and never objected to their absence on direct appeal. In addition to ignoring the duty of an appellant to identify and request relevant portions of the record, Lesko’s argument fails to recognize the very limited purpose of review pursuant to Section 9711(h)(3)®.
Generally, an action may be deemed arbitrary if it is not cabined by law or principle. Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 102 (2004) (citing Black’s Law Dictionary 100 (Seventh Ed.1999)). Similarly, the Legislature’s use of the terms “passion and prejudice,” suggests a review scheme whereby this Court ensures that the jury’s sentencing decision was the result of law and principle and not some extraneous factor. Based upon this very limited review prescribed by Section 9711(h)(3)(i), it is not at all apparent how the absence of voir dire transcripts would hamper this Court’s statutorily mandated review under Section 9711(h)(3), which exists merely to ensure that the jury’s sentence of death was based upon law and principle. Cf. Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 777 (1998) (potentially improper statements made during voir dire are of “less direct relevance to the jury’s ultimate sentencing decision.”). Instead, like most instances where a portion of the transcript was missing, “to be entitled to relief due to the incompleteness of the trial record the defendant must make some potentially meritorious challenge which cannot be adequately reviewed due to the deficiency in the transcript.” Commonwealth v. Marinelli, 589 Pa. 682, 910 A.2d 672, 688 (2006). And, in this case, as we have noted that any fault for the “missing” transcripts fell squarely at counsel’s feet, any such meritorious claim has to be raised as a claim of counsel’s ineffectiveness, which requires Lesko to identify and develop the specific, defaulted voir dire-related issue he believes would have won the day on direct appeal.
Similarly meritless is Lesko’s argument that this Court should review his claim under the “presumed prejudice” standard announced by the High Court in Cronic. This Court has rejected an identical claim on a prior occasion. See Jones, 912 A.2d at 285. Briefly, Cronic stands for the proposition that a court will presume prejudice under certain limited circumstances if the defendant is denied counsel totally or at a critical stage of the proceedings. If Lesko could establish that the circumstances on direct appeal amounted to a total denial of counsel, warranting a presumption of prejudice, he would be entitled to nunc pro tunc relief. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (2005) (nunc pro tunc relief appropriate when counsel failed to filed 1925(b) statement, thereby waiving all issues); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (nunc pro tunc relief appropriate when counsel failed to file requested direct appeal). But counsel’s failure to request and secure the transcripts from voir dire did not amount to a constructive denial of counsel on appeal. This Court has held that the filing of an appellate brief, deficient in some aspect or another, which operates to default some claims, does not constitute a complete failure to function as a client’s advocate so as to warrant a presumption of prejudice under Cronic. See Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216, 1226 (2009). Yet, this is precisely the type of argument Lesko attempts to forward in this collateral appeal. This is not an instance where counsel failed to file a direct appeal at all, or filed an appeal that was doomed because all claims were later defaulted by counsel’s lapse. Instead, counsel filed a direct appeal in which he forwarded numerous claims respecting the new sentence of death, which were decided on their merits. Whether counsel perceived no claims relating to voir dire, elected not to pursue such claims as he perceived, or simply failed to consider looking to voir dire for claims, the fact remains that Lesko had a fully counseled appeal. Whatever issue-specific complaints Lesko has respecting counsel’s appellate performance sound in Strickland, not Cronic.
In summary, Lesko’s only cognizable claim arising from the absence of voir dire notes on his direct appeal must sound in prior counsel’s ineffectiveness. We turn now to the individual claims respecting voir dire that Lesko, in the alternative, asserts counsel was ineffective for failing to discover and forward.
First, Lesko challenges the “misstatements of law” that, he believes, the trial court made during juror selection. Specifically, Lesko points to the trial court’s language, which repeatedly described aggravating circumstances to the prospective jurors as circumstances that make the crime “more terrible” and mitigating circumstances as circumstances that make the crime “less terrible.” Lesko links this supposed error to the previous allegation, addressed and rejected above, regarding the jury instructions issued before deliberations, and speculates that the combination of these errors produced a jury overly oriented to death. In a similar vein, Lesko asserts that the trial court failed to inform the first two empaneled jurors that mitigating circumstances could encompass any aspect of Lesko’s background or character, even those not directly connected to the circumstances of the crime.
The PCRA court employed identical reasoning to that expressed when it reviewed Lesko’s challenges to the jury instructions at the conclusion of the proceedings. The PCRA court found that, upon considering the charge in its entirety, the burden was not improperly shifted to Lesko. Accordingly, the court dismissed the underlying claim as meritless.
It is well-settled that the purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions of the trial court. See Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 93 (2009). We agree that counsel was not obliged to object to the court’s language which merely tried to give prospective jurors a sense of the roles of aggravators and mitigators in capital cases.
As we stated previously, the trial court’s description of aggravating and mitigating circumstances as factors that made the crime “more terrible” or “less terrible” was not an error. Moreover, contrary to Lesko’s apparent view that his take on federal constitutional law provides a basis for micromanaging all utterances in a capital trial, nothing in the law obligated trial counsel, engaged in the process of jury selection, to parse the court’s words and offer argumentative alternatives. The court’s engagement with the jury in voir dire is not of the same magnitude as its role and interaction in describing to the selected jurors their actual obligations at the point where they retire to deliberate on the penalty verdict. Furthermore, any arguable omission regarding the broad character of mitigating circumstances during voir dire was later corrected by the trial court’s proper instructions that told the jury that that it could consider “any other mitigating matters concerning the character and record of the defendant or the circumstance or circumstances of his offense, including but not limited to, that the defendant is repentant----” N.T., 2/17/1995, 26-27. Accordingly, this claim of ineffectiveness is meritless.
Lesko’s next challenge arising from voir dire involves the trial court’s decision not to grant the defense’s challenge for cause regarding two prospective jurors. Lesko asserts that the trial court abused its discretion in this regard. He also points out that he exercised all of his peremptory challenges and asserts that the erroneous impairment of his right to use peremptory challenges is reversible error. At the end of his argument, Lesko adds a general averment that trial counsel was ineffective for not “fully litigating” this issue and for not pursuing it on appeal.
Generally speaking, this Court has indicated that a trial judge may properly refuse to excuse a juror for cause where the judge believes that the juror would be able to be fair and impartial. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100, 1104 (1993). “Such a determination is to be made by the trial judge based on the juror’s answers and demeanor, and will not be reversed absent a palpable abuse of discretion.” Id. Expounding on the fair and impartial concept, this Court has given more specific guidance, explaining:
The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.... It must be determined whether any biases or prejudices can be put aside on proper instruction of the court.... A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court ■will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions---- The decision on whether to disqualify is within the discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion —
Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293, 299 (1996) (quoting Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 818 (1985), abrogated on other grounds by Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001)).
The first prospective juror that Lesko focuses on is Juror 52. The relevant portion of his voir dire testimony, according to Lesko, shows that Juror 52 “would be unable to consider” any mitigating circumstances if the crime involved the killing of a police officer and was committed by a person who had committed other murders. Specifically, Lesko points to the following excerpt from Juror 52’s testimony:
Q. Do you believe that the death penalty is the only appropriate punishment for first degree murder of a police officer in the line of duty where the defendant has been convicted of other murders without regard to mitigating circumstances?
A. Yes.
[TRIAL COUNSEL]: That’s all I have.
THE COURT: Did you understand that?
A. Yes. In other words, for killing a police officer, I think it should be the death penalty. But you got to listen to everything first.
N.T., Voir Dire, at 417. Lesko also cites to a further exchange with the trial court, on page 418, as further proof of the juror’s supposed bias.
The PCRA court determined that after reading the entire transcript surrounding Juror 52’s testimony (not just the select exchanges Lesko cites), the trial court did not abuse its discretion in concluding that the prospective juror could set aside his personal beliefs and follow the court’s instructions.
Although the select portion of the voir dire of Juror 52 quoted by Lesko might be troubling in isolation, as the PCRA court’s opinion implicitly recognized, Lesko’s argument fails to acknowledge what came after this exchange. The trial court’s rather lengthy follow-up examination elicited that the prospective juror was confused by this line of questioning. When he was asked to put his understanding of the law in his own words, the juror stated, “I would listen to both sides and think for myself what I would, you know, vote.” Id. at 421. Furthermore, after trial counsel asked that the juror be excused for cause, the trial court brought the juror back for yet further questioning. During this follow-up examination, the juror appeared to understand the law and indicated unequivocally that he would not find that the potential aggravating circumstances at issue in this case automatically outweighed any mitigating evidence. Id. at 428. (Notably, the jury, of which this juror was a part, found four mitigating circumstances.) Lesko’s argument, in short, is premised upon a misrepresented account of the juror’s overall testimony. Accordingly, we agree with the PCRA court that Lesko has failed to prove that trial counsel was ineffective in failing to pursue this discretionary claim on appeal.
Lesko’s next-challenged prospective juror, Juror 146, was a self-identified “news bug,” who had extensive familiarity with background information about the case from following it in the local news. Specifically, Juror 146 knew that Lesko had received the death penalty following the first trial, knew that Lesko (along with Travaglia) had committed three other murders and knew some of the details surrounding those murders, knew Judge Mihalich casually (it appears that they were neighbors at some point and may have graduated from high school together), and knew that Judge Mihalich had made statements to the press following Lesko’s prior trial, but could not remember the substance of the statements. This particular juror also expressed some confusion about the law, stating that he believed the death penalty was automatic for any defendant convicted of killing a police officer and indicating that he could not “understand why they had to retry [Lesko]. That always bothered me. But of course the law, there is so many loopholes----” N.T., Voir Dire, 2/6/95, at 438-42. Lesko argues that a combination of this prospective juror’s knowledge of inadmissible facts, specifically the fact that the death penalty was imposed following the first trial, and his misunderstanding of the law, demonstrated that Juror 146 was predisposed to impose a sentence of death. For these reasons, Lesko contends that the trial court should have granted trial counsel’s challenge for cause, trial counsel was ineffective for failing to “fully litigate” the claim before the resentencing court and counsel should have pursued the issue on appeal.
Again, the PCRA considered the juror’s testimony in its entirety, concluded that the trial court properly exercised its discretion in denying the challenge for cause, and thus rejected Lesko’s underlying claim.
As was the case with the prior juror, there obviously were sufficient concerns with this prospective juror’s initial testimony that trial counsel moved to excuse him for cause. But the motion having been denied in the trial court’s discretion, we see no merit in Lesko’s current claim that counsel was obliged to pursue the claim on appeal. The transcript is replete with testimony by Juror 146 that supported the trial court’s discretionary decision. The juror made clear that he could follow the law. The juror repeatedly stated that he would be able to consider the aggravating and mitigating circumstances before reaching a conclusion. See id., at 426, 427, 428, and 432. The juror also stated that he could put his prior knowledge of the case out of his mind in rendering a verdict. See id., at 433 and 442. The trial court was obviously better positioned than an appellate court, or a collateral review court, to assess the credibility of a prospective juror’s assurances, a fact which correspondingly reduces the likelihood of success in an appellate challenge to such a discretionary decision. Accordingly, based on our review of the entirety of the testimony by Juror 146, we see no error in the conclusion of the PCRA court. For this reason, Lesko cannot demonstrate that his trial counsel was ineffective for failing to “fully litigate” the issue or pursue the issue on direct appeal.
Lesko’s next argument derives from what he alleges was the inconsistent and irreconcilable treatment of two different prospective jurors whose examinations revealed similar questions regarding their collateral knowledge of the law. Specifically, Lesko notes that the trial court granted the Commonwealth’s challenge for cause after a juror questioned whether life in prison meant there was no possibility for parole. On the other hand, Lesko complains, the trial court did not grant a defense challenge for cause after a prospective juror questioned whether there would be “anymore [sic] levels of appeal.” Lesko points out that the second juror was the final juror empaneled and he avers that the trial court’s inconsistent treatment of the two jurors violated due process, citing Ham v. South Carolina, 409 U.S. 524, 526-27, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), as support. Lesko also acknowledges that trial counsel litigated the dismissal of the first juror for cause on direct appeal, but, to avoid the previous litigation bar, he avers that counsel did so ineffectively since he failed to juxtapose the trial court’s handling of that juror with the court’s allegedly inconsistent handling of the second juror for raising a similar question.
In resolving this question, the PCRA court concluded that Lesko was comparing “apples and oranges.” PCRA Court Opinion, 8/7/06, at 53. The court acknowledged that if the trial court had acted inconsistently with regard to two jurors who had asked the same question, ie., about the possibility of parole for a life sentence, then it would find an inconsistency in the trial court’s rulings. Here, however, the second juror asked a question about a different legal procedure and then specifically assured the court that her knowledge of the appeals process would not affect her verdict. Thus, the PCRA court concluded that there was no merit to Lesko’s contention. We agree that Lesko has not shown that counsel was ineffective in the manner in which he litigated this claim on appeal.
In Ham, supra, the U.S. Supreme Court concluded that the trial court committed reversible error when it did not permit the defendant to question prospective jurors as to racial bias under the particular circumstances of that case. Ham does not stand for the broad proposition for which Lesko cites it. Indeed, the U.S. Supreme Court has clarified that the decision in Ham was not of universal application. See Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). Lesko does not cite the Ristaino case.
In any event, the situation presented here is different from that in Ham, as the question presented implicates the alleged inconsistent treatment of two prospective jurors. The record amply supports the PCRA court’s finding that the inquiries by the two jurors were sufficiently distinct, in the circumstances, that there was no cognizable disparate treatment that counsel was constitutionally obliged to forward as part of his appellate claim. Additionally, as the PCRA court noted, it seems self-evident that prospective jurors will have a divergent range of knowledge and backgrounds and the linchpin in ruling upon challenges for cause must be whether the juror can be “fair and impartial.” See Marshall, supra. In this vein, the second juror indicated that her knowledge of the appeals process would not have any bearing on her decision. N.T., 2/8/1995, Excerpt of Jury Selection (Voir Dire), at 11. Accordingly, Lesko cannot prevail on his claim.
N. General Challenges
Finally, Lesko raises two summary claims. The first is a claim that the cumulative effect of all of the errors he has alleged warrants a finding of prejudice, such that a new trial and sentencing phase is warranted. We have deemed two claims to be arguably meritorious and disposed of them solely on grounds of lack of prejudice — the Brady claims and the ineffectiveness claim related to remorse, where we assumed arguable merit. The notion of “cumulating” prejudice does not easily flow from our disposition of such disparate claims. We note, however, that the measure of Brady materiality and Strickland prejudice are the same: a grant of relief depends upon finding a reasonable probability that the result of the proceeding would have been different. Compare Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (“[Brady ] evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,’ ”) with Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”) Even cumulating the ineffectiveness/remorse claim and the Brady claims, all deemed insufficiently prejudicial on their own, we have no doubt that the outcome of the resentencing would have been the same, given the jury’s specific findings, the strength of the aggravators, and common sense. Accordingly, this claim fails. Cf. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009).
Finally, Lesko avers that he was denied meaningful appellate review of his case when he was not given the opportunity to demonstrate a number of systemic defects in this Court’s proportionality review database. Lesko avers that he should have been afforded an evidentiary hearing to establish his claim. Additionally, Lesko attacks his trial counsel’s ineffectiveness for failing to participate in the proportionality review process. This Court has examined the issue attacking the method employed by this Court in conducting proportionality review on prior occasions and has concluded that our proportionality review met the requirements of 42 Pa.C.S. § 9711 (h)(3)(iii). See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1249 (2006) (and cases cited therein). Accordingly, we will not consider this issue anew.
For the reasons stated herein, we reverse the order of the PCRA court, granting Lesko a new trial and a new penalty hearing, and we dismiss the petition for PCRA relief.
Jurisdiction relinquished.
Justices EAKIN, BAER, McCAFFERY and ORIE MELVIN join the opinion.
Justice SAYLOR files a concurring opinion.
Justice TODD files a concurring and dissenting opinion.
This case was reassigned to this author.
[OPINION BY Justice SAYLOR, type=concurrence]
Justice SAYLOR,
concurring.
I join Parts I, II, and 111(A), (B), (D), (E), (F), (G), and (I) of the Majority Opinion, as well as its holding.
As to Part III(C), pertaining to trial counsel’s stewardship in the investigation and presentation of evidence in mitigation, I find the PCRA court’s conclusions relative to arguable merit and lack of reasonable strategy to be amply supported in the record. However, I agree with the majority’s holding concerning prejudice. See Majority Opinion, at 193-98, 15 A.3d at 383-87.
In this regard, I find this case to be very different from the Sattazahn decision, which I authored, and which is cited in the concurring and dissenting opinion. See Concurring and Dissenting Opinion, at 261-63, 15 A.3d at 424-26. In particular, the penalty-phase presentation in Sattazahn was truly paltry. Moreover, the little evidence that was presented there was of the humanizing type, see Sattazahn, 597 Pa. at 676 n. 8, 952 A.2d at 656 n. 8, as opposed to explanatory-type mitigation, which was presented in the Lesko resentencing proceedings at considerable length, see Majority Opinion, at 190-91, 15 A.3d at 381-82. See generally Commonwealth v. Brown, 582 Pa. 461, 521, 872 A.2d 1139, 1174 (2005) (Saylor, J., dissenting) (discussing the differences between humanizing- and explanatory-type mitigation, as well as one court’s observation that “[w]e have rarely granted habeas relief based solely upon humanizing, rather than explanatory mitigation evidence in the face of extensive aggravating circumstances” (citation omitted)).
Indeed, the present circumstances seem to me to be much closer to the scenario in Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638 (2009), in which the Court recently affirmed a denial of post-conviction relief. See id. at 40-54, 987 A.2d at 662-69. My reasoning in the present case is also similar to that supporting my concurrence in the denial of post-conviction relief in Commonwealth v. Cox, 603 Pa. 223, 290-91, 983 A.2d 666, 707 (2009) (Saylor, J., concurring), Commonwealth v. Clayton, 572 Pa. 395, 407, 816 A.2d 217, 223-24 (2002) (Saylor, J., concurring), and Commonwealth v. Bond, 572 Pa. 588, 622, 819 A.2d 33, 53 (2002) (Saylor, J., concurring).
[OPINION BY Justice TODD, type=concurring-in-part-and-dissenting-in-part]
Justice TODD,
concurring and dissenting.
I. GUILT PHASE
With respect to the disposition regarding the guilt phase, I join the Majority Opinion in reversing the Post Conviction Relief Act (“PCRA”) court’s order granting Appellant John Lesko a new trial.
II. PENALTY PHASE
With respect to the disposition regarding the penalty phase, I respectfully dissent from the Majority Opinion insofar as it reverses the PCRA court’s order granting Lesko a new penalty hearing. For the following reasons, I would affirm the PCRA court in that regard.
The PCRA court granted Lesko a new penalty trial based on his claims that Attorney Marsh was ineffective for, inter alia, (1) failing to retain a neuropsychologist for the purpose of providing a reliable evaluation of Lesko’s mental health and/or organic brain damage; and (2) retaining a clinical psychologist, but neglecting to provide sufficient preparation time or material collateral information to allow the psychologist to conduct an appropriate evaluation and reach a reliable diagnosis. In doing so, the PCRA court stated:
Three years before the 1995 sentencing, and in anticipation thereof, trial counsel, Mr. Marsh[,] consulted University of Pittsburgh law professor Welsh White with regard to the relationship between child abuse and brain damage. In October 1992, Professor White provided Mr. Marsh with literature on the topic and a sample motion to obtain psychological and neurological testing of the Petitioner. Mr. Marsh recognized that child abuse and neglect were significant factors in the Petitioner’s argument that a life sentence should be imposed, rather than death, and he agreed that evidence of brain damage would be a “very important matter to bring to the attention of the jury.”
Nonetheless, and despite having been advised otherwise, Mr. Marsh retained a clinical psychologist, Herbert Levit, Ph.D., on February 6, 1995, after jury selection had already begun for the second sentencing trial and only three days before the trial commenced. In counsel’s own words, he hired Dr. Levit “on the eve of trial.”
Dr. Levit is not a neuropsychologist, and as a consequence, was incapable of conducting a neuropsychological assessment of the Petitioner’s cognitive functioning. Furthermore, Mr. Marsh did not specifically advise Dr. Levit that he had been apprized [sic] of the link between abuse and organic brain damage, and that that may be an area of relevant inquiry. As a result, Dr. Levit conducted a standard mental status examination, which was not designed to detect either cognitive or organic dysfunction.
The inadequacy of Dr. Levit’s evaluation was further exacerbated by the fact that he was hired at the last minute. Within the week prior to the examination, he reviewed a summary report that had been prepared by the investigative firm, Alfonso Associates, and he had telephone conversations with two family members. He did not review any prior psychological or psychiatric evaluations, although he was aware that the records existed. He did not review any of the trial transcripts or any of the discovery materials. He did not review or consider any of the voluminous collateral information in the Children and Youth Services records that contained detailed information concerning the Petitioner’s life history. As a result, based upon limited information, he made an assessment of the Petitioner’s personality, and concluded that the Petitioner suffered from Borderline Personality Disorder and Polysubstance Abuse.
During the PCRA proceedings, the Petitioner presented the testimony of Dr. Barry Crown, a neuropsychologist who testified that both the institutional records and Dr. Levit’s evaluation contained indicia of brain damage that would have been revealed with neuropsychological testing tools and a properly qualified and competent evaluator.
Dr. Crown painstakingly went through the institutional records and noted those entries that would be red flags to anyone who was trained to diagnose the presence of organic brain damage: the Petitioner had an unusual gait, exhibiting some form of psychomotor difficulty at an early age; uninhabitable and deplorable housing conditions (inoperable windows, broken doors, floors falling apart, lead-based paint, absence of hot and cold running water, animal and human feces on surfaces in the home, decaying food on the counters and in the refrigerator, and an infestation of insects and flies); general and continuous neglect of the Petitioner’s and his siblings’ health; the Petitioner played with dead rats; and the Petitioner was set on fire by boys in the neighborhood, which resulted in a one-month stay in the hospital. He explained that these facts have neuropsychological significance because the combination of “general neglect” and “a young child under stress, we know ... produces difficulties at critical stages in brain development.” Growing up in deplorable conditions is neuropsychologically significant and constitutes an indicator of brain damage that should be further explored.
The records contained relevant information concerning the Petitioner’s physical well-being and his behavior as a child that were significant to Dr. Crown’s neuropsychological investigation. The Petitioner suffered from childhood insomnia, hyperactivity and headaches; he was described as having “episodic dyscontrol,” a form of organically impaired impulse control; he chronically suffered from inadequate nutrition; his mother was a chronic drinker, indicating the possibility that the Petitioner was subject to fetal alcohol involvement; a long and continuing history of high fevers and ear problems; and multiple indications of head trauma (assaulted by other children and punished aggressively at home).
The records also contained significant references to a long history of drug and alcohol abuse and exposure to environmental toxins. At an early age — as early as 8 years old— the Petitioner started drinking alcohol, huffing over-the-counter toxic substances, experimenting with illegal drugs, and eating paint chips. Dr. Crown explained how damaging it is to the brain to ingest alcohol and other toxins at a young age, when the brain is still developing. Furthermore, he noted that the records disclosed a history of blackouts, which would also indicate a history of alcohol-related brain cell damage.
All of the above references in the records were indicators that neuropsychological assessment for brain damage was needed.
In addition to the institutional records, there were numerous red flags in Dr. Levit’s report that indicated that neuropsychological testing should be conducted. The Wechsler Adult Intelligence Scale (“WAIS”) intelligence test that was administered by Dr. Levit revealed significant differences among the test scores both between the Verbal and Performance categories and the inter-test scatter. According to Dr. Crown, both sets of test scatter provided neuropsychologically significant evidence of brain damage. Not only did the test scoring suggest the need for further testing to ascertain the presence of brain damage, but is itself “a pathognomic sign[, mjeaning that it represents the very strong possibility and likelihood of a pathology, of an impairment, of a deficit” and “would be an extremely strong indicator of ... the strong likelihood of organic brain damage.”
Likewise, the results of Dr. Levit’s administration of the Bender Visual Motor Gestalt Test and the House-Tree-Person Test provided data that suggested the need for further neuropsychological testing.
In addition to the psychological test results, Dr. Crown noted that Dr. Levit’s diagnosis of Borderline Personality Disorder raised important issues relating to the possibility of brain damage — the symptoms of Borderline Personality Disorder substantially overlap the behavior manifestations of organic brain damage. Accordingly, Dr. Levit’s diagnosis, although limited, was yet another sign that the Petitioner may be suffering from organic brain damage.
In corroboration of Dr. Crown’s suspicions, the Allegheny County Children and Youth Services records that were not provided to the defense until the April 2002 PCRA hearing, also contained substantial evidence to support a conclusion that further neuropsychological testing of the Petitioner was indicated. Among the indicators were the results of intelligence tests by school psychologists that were significantly similar to the most recent test results, and evidence that the Petitioner’s siblings, as well, suffered from brain damage, dysfunction and mental retardation.
On October 28, 1999, Dr. Crown administered a complete neuropsychological test battery to the Petitioner. As a result of the Petitioner’s performance on those tests, Dr. Crown concluded to a reasonable degree of neuropsychological certainty that the Petitioner is brain damaged and was brain damaged at the time of the offense. The Commonwealth did not offer any expert testimony in opposition to Dr. Crown’s diagnosis and was unable to discredit Dr. Crown’s methodology or conclusions on cross-examination. As a consequence of his findings, Dr. Crown determined that, at all relevant times, the type of brain damage from which the Petitioner suffered, and continues to suffer, constitutes an extreme and emotional disturbance (42 Pa.C.S. § 9711(e)(2) mitigating circumstance) and a significant impairment in his ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law (42 Pa.C.S. § 9711(e)(3) mitigating circumstance).
Only after Dr. Levit had an opportunity to review the institutional records, as a consequence of the filing of the PCRA petition and the preparation of the case by new counsel, was he able to recognize the deficiencies in his original evaluation, and recommend neuropsychological testing to confirm the likelihood of brain damage. His new diagnoses and findings included post-traumatic stress disorder; failure to thrive syndrome; substantial impairment in Petitioner’s capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law; probable brain damage; and the failure of social services to rescue Petitioner and his siblings from the abject environment in which they were raised.
PCRA Court Opinion, 8/7/06, at 10-15 (record citations and footnotes omitted).
Based on the foregoing, the PCRA court concluded: “the testimony of a neuropsychologist at the sentencing hearing with regard to [Lesko’s] organic brain damage would have added significant additional and relevant information for the jury to consider as it weighed mitigating factors against the aggravating factors;” there was no reasonable basis for Attorney Marsh’s failure to present such testimony; and there was a reasonable probability that, but for Attorney Marsh’s ineffectiveness, the results of the penalty proceeding would have been different. PCRA Court Opinion, 8/7/06, at 16. The PCRA court also concluded that Attorney Marsh was ineffective for failing to investigate and present mitigating evidence, including evidence of extraordinary abuse and neglect that Lesko endured as a child. Based on these findings, the PCRA court determined Lesko was entitled to a new penalty hearing.
With respect to the PCRA court’s determination that Attorney Marsh was ineffective for failing to retain the services of a neuropsychologist to present evidence that Lesko suffered from organic brain damage, the Majority finds error in the PCRA court’s analysis because “it placed the burden of an expert’s knowledge on counsel’s shoulders and framed the reasonable strategy question narrowly without considering the course actually pursued by counsel at the resentencing.” Majority Opinion at 186, 15 A.3d at 379-80. The Majority further “caution[s] that, in applying Strickland, courts must be careful not to conflate the roles and professional obligations of experts and lawyers,” noting:
it is telling that Dr. Crown’s testimony at the PCRA hearing was directed at the examination conducted by Dr. Levit and not the strategy of counsel; thus, Dr. Crown opined that the results of some of the testing conducted by Dr. Levit raised “red flags,” which indicated that neuropsychological testing should be conducted. Certainly, these psychological “red flags” could not be directed at counsel, who was unschooled in mental health matters, but were directed at Dr. Levit. In fact, by the neuropsychologist’s own testimony, the diagnosis of Borderline Personality Disorder — a diagnosis made by Dr. Levit, not trial counsel — should have raised a question relating to the possibility of brain damage. Again, such opinions, if valid, may call into question Dr. Levit’s professional performance, but that is not the same thing as providing a basis to fault trial counsel’s legal performance.
Id. at 190, 15 A.3d at 382. I respectfully disagree with the Majority’s determination in this regard.
As the PCRA court recognized, Attorney Marsh became aware of the link between child abuse and brain damage after consulting -with Professor White in 1992. Attorney Marsh also was aware that Lesko had been severely abused and neglected as a child, and testified that he knew that evidence of brain damage would be a “very important matter to bring to the attention of the jury.” N.T. PCRA Hearing, 12/14/99, at 134. Notwithstanding this knowledge, and despite the fact that Professor White provided Attorney Marsh with a sample motion to obtain psychological and neurological testing of Lesko, on the eve of trial Attorney Marsh retained a clinical psychologist — Dr. Levit — as opposed to a neuropsychologist to evaluate Lesko.
Moreover, despite the information counsel obtained from Professor White regarding the link between child abuse and brain damage, and despite his knowledge of Lesko’s abusive childhood, Attorney Marsh failed to either alert Dr. Levit of the link between abuse and organic brain damage or suggest that Dr. Levit investigate the possibility of organic brain damage in Lesko. Attorney Marsh also failed to provide Dr. Levit with numerous documents, including records from Children and Youth Services, which, according to Dr. Levit’s own testimony at the PCRA hearing, would have resulted in new or additional diagnoses of Lesko, including probable brain damage and substantial impairment in the capacity to appreciate the criminality of his conduct. See N.T. PCRA Hearing, 12/15/99, at 239-42.
While it is true that counsel cannot be expected to be a mental health expert, and although Attorney Marsh may have been officially “unschooled in mental health matters,” Majority Opinion at 190-91, 15 A.3d at 382, the evidence shows in the instant case that Attorney Marsh was aware of the severe abuse and neglect Lesko suffered during his childhood. Attorney Marsh also had knowledge of the link between child abuse and brain damage, and, by his own testimony, understood the importance of presenting evidence of Lesko’s brain damage to the jury in an effort to avoid a death penalty verdict. Indeed, Attorney Marsh had been given related literature, and even a sample motion to obtain neurological testing of Lesko, yet he failed to act. Under such circumstances, I can conceive of no reasonable basis for counsel’s failure to further investigate the matter, including obtaining the appropriate expert and providing that expert with the information known to him. Accordingly, I believe the PCRA court properly concluded that Attorney Marsh had no reasonable basis for failing to retain a neuropsychologist to evaluate Lesko and present testimony regarding organic brain damage.
Next, the Majority indicates that, even if it agreed with the PCRA court that Attorney Marsh’s investigation “was unreasonable and constitutionally deficient, and that there was some basis in law to say that lawyers are obliged to consult neuropsychologists, rather than clinical psychologists,” id. at 388, it does not agree with the PCRA court’s determination that Lesko established he suffered actual prejudice, as required under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). I likewise disagree with the Majority’s conclusion with respect to this issue.
The Majority opines:
Lesko has not established that the resentencing proceeding was rendered unreliable by counsel’s alleged lapse. This was a jury that found four mitigating factors, relating to two distinct statutory mitigating circumstances. Thus, the jury was engaged in a balancing of aggravators and mitigators, yet voted for death (just as Lesko’s first sentencing jury had). To find Strickland prejudice arising from the failure alleged herein, we must conclude that “there is a reasonable probability that, absent counsel’s failure to present the mitigation evidence he currently proffers, [Lesko] would have been able to prove at least one [more] mitigating circumstance by a preponderance of the evidence and that at least one jury member would have concluded that the mitigating circumstance(s) outweighed the aggravating circumstance(s).”
Majority Opinion at 192-93, 15 A.3d at 383 (citation omitted).
The Majority further reasons:
[B]ased on counsel’s presentation, the jury had found that Lesko was under the influence of extreme mental or emotional disturbance, § 9711(e)(2), and it is entirely speculative how much more weight the testimony of a neuropsychologist such as Dr. Crown would have lent to this mitigator already found. Of course, it is possible that opinion testimony on brain damage from a neuropsychologist might persuade a juror that Lesko was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law under Section 9711(e)(3). But, Lesko must also show that there is a reasonable probability that, in the overall evaluation, at least one jury member would have concluded that the mitigating circumstances outweighed the aggravating circumstances.
Faced with the aggravating circumstances where the defendant has been found guilty of multiple murders occurring within a one-week period, including the cold-blooded murder of an on-duty police officer, and the case in mitigation already successfully presented, we simply cannot conclude that Strickland relief can be premised upon the additional mitigation evidence the PCRA court found would have carried the day. The PCRA court failed to consider the full context of the case in rendering its finding as to Strickland prejudice. We do not believe there is a reasonable probability that further expert opinion evidence, including evidence of Lesko’s “organic brain damage” would have resulted in a different weighing and different penalty verdict when the aggravating circumstances were so patently grave, and the jury already found substantial mitigating factors, only to return with a verdict of death.
Id. at 195,15 A.3d at 384-85 (footnote omitted).
In support of its holding, the Majority cites the recent decision of the United States Supreme Court in Smith v. Spisak, -U.S.-, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010), wherein the Court held that, even presuming the closing argument of the defendant’s counsel at trial was constitutionally inadequate, there was no reasonable probability that a better closing argument would have made a significant difference in the outcome. The Majority explains that the Spisak Court, in reaching its conclusion:
considered the context of the case, which included Spisak’s admission and supporting testimony that he committed three murders and attempted to commit two others. The Court stressed that at the time of the sentencing the jurors had fresh in their minds the government’s evidence regarding the killings as well as Spisak’s “boastful and unrepentant confessions and his threats to commit further acts of violence.” The Court also noted that the defense experts’ testimony, which was offered to show that Spisak suffered from a mental infirmity, was fresh in the jurors’ minds; and, the Court did not “see how it could have made a significant difference had counsel gone beyond his actual argument — which emphasized mental illness as a mitigating factor and referred the jury to the experts’ testimony — by repeating the facts or connections that the experts had just described.” Id. at 687-88. Notably, even the concurrence by Justice Stevens, which stressed “how thoroughly egregious counsel’s closing argument was,” ultimately concluded that Spisak was not entitled to relief in light of Spisak’s testimony and his “monstrous” crimes. Id. at 693.
The case sub judice obviously is not on all fours with the situation in Spisak. Most importantly, in this case we consider a claim of an allegedly incomplete mitigation presentation, and not a deficient jury argument. But the opinion is instructive as to how this Court should address the question of prejudice under Strickland. The Spisak Court made clear that the prejudice analysis must be viewed in the context of the case; and in this case, the developed penalty-related facts were grim indeed.
Majority Opinion at 193-94,15 A.3d at 384.
To say that the instant case “obviously is not on all fours” with Spisak is, to my mind, an understatement. In Spisak, the evidence suggesting Spisak suffered from a mental infirmity, which the Court determined had been summarized in a deficient closing argument, had been fully developed and presented to the jury. In the instant case, testimony that Lesko suffered from organic brain damage was never presented to the jury, and, thus, the jury did not have the opportunity to consider whether Lesko lacked the ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In short, Spisak concerned a poor closing argument, whereas the instant case involves a failure to present relevant evidence.
With regard to the Majority’s ultimate conclusion that, in light of the gravity of the crimes, there is no reasonable probability that additional expert testimony, including evidence of Lesko’s organic brain damage, “would have resulted in a different weighing and different penalty verdict,” Majority Opinion at 195, 15 A.3d at 385, as this Court explained in Commonwealth v. Sattazahn,
in terms of prejudice, we recognize that the substantial aggravation advanced by the Commonwealth encompassed Appellee’s commission of the present killing in the perpetration of a robbery, as well as his history of violent offenses including two murders. Nevertheless, the presentation at trial of the credited post-conviction evidence would have provided support for the finding of several statutory mitigators, which also bore upon the degree of Appellee’s culpability in terms of selecting between capital punishment and a life sentence. See Penry v. Lynaugh, 492 U.S. 302, 319,109 S.Ct. 2934, 2947,106 L.Ed.2d 256 (1989) (explaining that “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse” (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring))). The absence, due to an inadequate investigation, of substantial, relevant, mitigating evidence diminishes confidence in the outcome of the sentencing proceeding, particularly given the appropriate single-juror frame of reference. See Wiggins [v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ] (articulating the prevailing standard for assessing prejudice from deficient stewardship in the presentation of mitigation evidence in terms of whether “there is a reasonable probability that at least one juror would have struck a different balance”).
597 Pa. 648, 676-77, 952 A.2d 640, 656-57 (2008) (footnote omitted).
In the instant case, the jury found four mitigating factors, relating to two separate mitigating circumstances, namely, that Lesko was under the influence of extreme mental or emotional disturbance, § 9711(e)(2); and the catchall provision of Section 9711(e)(8). Testimony that Lesko suffered from organic brain damage would have implicated an additional mitigating circumstance — the inability of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law under Section 9711(e)(3) — that had not already been found by the jury. Furthermore, as the PCRA court recognized, because the jury is instructed to engage in a qualitative rather than a quantitative weighing of mitigating and aggravating circumstances, there is a reasonable probability that uncontroverted testimony such as Dr. Crown’s regarding Lesko’s organic brain damage would have resulted in the jury giving greater weight to the Section 9711(e)(2) mitigator in favor of a life sentence. PCRA Court Opinion, 8/7/06, at 22. Accordingly, I cannot agree with the Majority’s conclusion that, even if the jury had been presented with evidence of an additional mitigating circumstance under Section 9711(e)(3), Lesko failed to show there was a reasonable probability that at least one jury member would have concluded that the mitigating circumstances outweighed the aggravating circumstances.
For the reasons discussed above, I find no error in the PCRA court’s conclusion that trial counsel had no reasonable basis for failing to retain a neuropsychologist for the purpose of evaluating Lesko and presenting testimony on organic brain damage. Furthermore, I agree with the PCRA court’s determination that, but for counsel’s ineffectiveness in this regard, there is a reasonable probability that the result of the penalty proceeding would have been different. Accordingly, I believe the PCRA court properly held that Lesko is entitled to a new penalty hearing, and I would affirm the PCRA court’s grant of a new penalty hearing on the basis that Lesko was denied his right to effective assistance of counsel. Hence, I dissent from the Majority Opinion to the extent it reverses the PCRA court’s order granting Lesko a new penalty hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Third Circuit initially remanded the case to the federal district court, as will be discussed infra, to resolve an evidentiary issue relevant to resentencing, before the case proceeded to a second penalty hearing.
The four aggravating factors were: the victim was a police officer killed in the performance of his duties, 42 Pa.C.S. § 9711(d)(1); the defendant had a significant history of felony convictions involving use or threat of violence to the person, § 9711(d)(9); and the defendant had been convicted of another federal or state offense for which a sentence of life imprisonment or death was imposable, namely, the murders of Peter Levato and Marlene Sue Newcomer, § 9711(d)(10) (one aggravator for each murder). The four mitigating factors were: the defendant was under the influence of extreme mental or emotional disturbance, § 9711(e)(2); the defendant’s service to others; the defendant's horrible childhood; and the defendant’s change in character over the last fifteen years of his confinement, the last three mitigators falling under the catchall provision of Section 9711(e)(8).
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The Commonwealth does not dispute that Lesko's ineffective assistance of counsel claims regarding his second penalty trial are timely.
The PCRA court’s iteration of the tenet relating to the timing of the presentation of ineffectiveness claims was consistent with Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The Hubbard rule was subsequently overruled in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). The instant petition was filed prior to the overruling of Hubbard.
For a full treatment on the historical availability of federal habeas review for convicted state prisoners, see Kent S. Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum.L.Rev. 888, 928-933 (May 1998).
A necessary consequence of this non-deferential review scheme was that lower federal courts often injected errors into otherwise valid state court proceedings. See, e.g., Wright v. West, supra (reversing circuit court that had erroneously granted habeas relief to state prisoner on sufficiency of evidence claim); Dunn v. Simmons, 877 F.2d 1275 (6th Cir.1989) (concluding that Kentucky’s procedure for litigating validity of prior convictions violated federal standards, but Kentucky rule was later found to “easily pass[] constitutional muster” by U.S. Supreme Court in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)).
A different part of Fay was overruled on other grounds in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (procedural default constitutes independent and adequate state ground preventing federal habeas review).
The Fay Court further explained: [T]he writ of habeas corpus is a new suit brought by the petitioner to enforce a civil right, which he claims as against those who are holding him in custody. The proceeding is one instituted by himself for his liberty, and not by the government to punish for his crime. The judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. It is not a proceeding in the original action. Fay, 372 U.S. at 424 n. 34, 83 S.Ct. 822.
In using the terms "reverse" and "affirm,” the Third Circuit was not referring to the Pennsylvania judgment of sentence, but to the order of the federal district court.
Lesko argues that, because his direct appeal of his second death penalty sentence was pending with this Court when the PCRA was amended in 1995, he was unable to file a PCRA petition challenging trial counsel’s effectiveness until that appeal concluded. In support of his argument, Lesko cites this Court’s decision in Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000), wherein we held that, “when an appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review.” Lark is distinguishable because, in that case, the appellant had a pending PCRA petition, not a direct appeal from a resentencing proceeding, which was deemed to require a delay in filing a serial PCRA. In addition, Lark obviously did not constrain appellant's options and decisions in 1995, five years before Lark was decided. And finally, nothing in Lark purports to create an extra-PCRA right to pursue a second post-conviction attack as of right, outside the realm of the PCRA’s serial petition and time-bar restrictions. Appellant’s guilt phase claims are available only to the extent he can satisfy the terms of the PCRA.
The bulk of Lesko’s non -Brady guilt phase claims sound in counsel ineffectiveness and are time-barred for the reasons discussed in the text above. Lesko also raises two questions arising from his prior conviction for the murder of William Nicholls, which he poses as direct appeal counsel’s ineffectiveness for failing to raise them on direct appeal, following resentencing. First, he contends that the prosecution for the murder of Officer Miller should have been barred by 18 Pa.C.S. § 110 because of his guilty plea to the murder of Nicholls. According to Lesko, the two events were part of a single criminal episode. See Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997) (plurality). Alternatively, Lesko argues that, if the two murders were not part of a single criminal episode, then evidence of the Nicholls murder should not have been admitted at trial or resentencing. Although posed as resentencing errors, it is clear that these are guilt phase claims, and thus they too are time-barred. To the extent Lesko challenges the admission of evidence surrounding the Nicholls murder for purposes of resentencing, that claim is fully discussed infra.
This Court previously summarized R.’s trial testimony as follows: R.’s testimony consisted of an account of how he had accompanied Lesko and Travaglia from the Edison Hotel in downtown Pittsburgh, where the Appellants had abducted one William Nicholls in his automobile; how Travaglia had shot Nicholls in the arm and then forced him to drive them out of town; how both Appellants had abused Nicholls along the way; how they had driven to a lake and, after R. helped them find a large rock, how Appellants had taken Nicholls down to the lake and returned to the car without him. R. testified that the trio then went to Travaglia's father’s house where they stole a .38 caliber pistol, and returned to the house and forced R. to enter the garage to get other ammunition after they found the gun contained the wrong type. R. then testified to their speeding past Officer Miller several times, and to the subsequent shooting of Miller by Travaglia. Travaglia, 467 A.2d at 296-97.
We note also that the Commonwealth’s Brady obligations can be cabined by the nature of the discovery request. In this pre-Kyles case, Lesko’s counsel requested all evidence "favorable to the accused which is material either to guilt or to punishment in the possession or direct control of the attorney of the Commonwealth.” Lesko did not ask for information in the control of the police or of the prosecuting authority generally.
Notably, Lesko has not suggested what M. would have said if confronted with his earlier claim that he knew nothing of the shooting.
The Supreme Court of Georgia summarily denied review of the claim.
The focus of the CO/DO, like the PCRA court, is on what counsel did not do and allegedly should have done, including his failure to alert Dr. Levit as to the possibility of organic brain damage. This focus gives little notice to the course actually pursued by counsel. As discussed herein, in considering the reasonableness of penalty phase counsel's strategy, the course actually pursued by counsel must be one of the factors to consider. Additionally, as detailed infra, much of Dr. Crown's testimony at the PCRA hearing suggested that there were signs that neuropsychological testing was indicated based on the results of the tests Dr. Levit actually administered. Dr. Levit’s alleged incompetence is a centerpiece of Lesko’s claim; but, to place the expert's alleged error at counsel's feet unmoors the analysis from Strickland.
Although appellant was involved in three murders prior to the murder of Officer Miller, at the resentencing here, the jury was permitted to consider the evidence related to only two of the murders for purposes of determining aggravating circumstances. This restriction was a product of the grant of federal habeas relief. See, supra, Section I (discussing federal district court's ruling on Indiana County guilty plea).
We note that the PCRA court did not preside over the resentencing trial, and thus, is no better positioned than this Court to assess the effect the evidence at the PCRA hearing would have had on the resentencing jury.
The specific line of questioning was as follows: Q: You were also called as a witness in your previous trial; isn’t that correct? A: During the sentencing phase, sir. Yes, sir. Q: Did you think at that point it might be important to tell that jury that you were intoxicated and under the influence of drugs back between December 27th and January 3rd? N.T., 2/16/1995, at 68. Thereafter, defense counsel objected, the trial court overruled the objection, and the prosecutor continued the line of questioning, asking Lesko why he "said nothing about being under the influence of alcohol at the time of the Miller killing....” Id. at 73. In response, Lesko confirmed that he said nothing along those lines during the prior penalty phase hearing.
Lesko generally testified about what he had learned since being in prison and being exposed to religious beliefs and literature. Defense counsel then asked, "how do you feel about these crimes for which you have been convicted," and the following occurred: A: I feel bad about them, sir. Q: How is that? A: I’m sorry that I did them. I’m sorry that I got involved in them. I wish it was humanly possible that I could change that, but I can see no way I can do that, sir. N.T., 2/16/1995, at 66-67.
We emphasize the narrowness of Lesko’s current underlying argument. Lesko does not argue that his failure to express remorse when interviewed after his arrest for the murder of Levato was not relevant proof that he actually lacked remorse for his crimes, or that failure to volunteer remorse does not fairly raise an inference of lack of remorse. Rather, his claim is confined to a broad argument that no reference can be made to silence at the time of arrest.
The Commonwealth does not dispute that Lesko's evidence in this regard was properly relevant mitigation evidence.
The claim of ineffectiveness could only sound in direct appeal counsel’s failure to forward the issue on appeal from the resentencing, as trial counsel asked that the evidence of Travaglia's death sentence be admitted at trial, but the Commonwealth objected. The trial court sustained the Commonwealth’s objection. N.T., 2/16/1995, at 21.
This presumption was based on the fact that the jury had recommended a sentence of life in prison. The Court reasoned that the jury could have made such a recommendation only because it found mitigating evidence, including non-statutory mitigating evidence, that outweighed aggravating evidence. In Florida, the trial court was bound to accept the jury's recommendation unless there were such "clear and convincing” facts to the contrary “that virtually no reasonable person could differ.” 498 U.S. at 313, 111 S.Ct. 731. Furthermore, the trial court was required by law to consider any mitigating evidence, which necessarily included the non-statutory mitigating evidence presented to the jury. Id. at 314, 111 S.Ct. 731.
In any event, Lesko has not shown a reasonable probability that the outcome of the sentencing proceeding would have differed if only the charge had been issued. Lesko's one-sentence argument that the jury may have viewed the evidence for a different purpose and considered it as an additional aggravator is purely speculative and unsupported by the record. Indeed, there is nothing to suggest, other than Lesko’s bald allegations, that the jury considered aggravating circumstances beyond those found by it and enumerated on the verdict slip. In any event, as discussed previously, there was overwhelming evidence supporting the jury’s verdict of death. See, e.g., Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 689-90 (2009) (finding no prejudice from counsel’s failure to request cautionary instruction where there was overwhelming evidence of guilt).
In a footnote, Lesko also declares that "multiple weighing as aggravation of the same conduct” has been condemned by "many state courts” on various grounds. Brief of Appellant Lesko, at 50 n. 30, citing, e.g., Parsons v. Barnes, 871 P.2d 516 (Utah 1994); State v. Scott, 177 Ariz. 131, 865 P.2d 792, 805 (1993) (opinion and cases relied on therein merely state, without explanation, that one fact cannot be weighed twice); State v. Gay, 334 N.C. 467, 434 S.E.2d 840 (1993) (opinion and cases cited therein rely on statutory construction and not on federal constitutional analysis); Willie v. State, 585 So.2d 660, 681 (Miss. 1991) (court simply announced that "a jury cannot be allowed the opportunity to doubly weigh the commission of the underlying felony and the motive behind the underlying felony as separate aggravators,” followed by string cite); People v. Bigelow, 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994, 1006 (1985) (no independent analysis other than cite to prior cases from other states such as Cook v. State, 369 So.2d 1251, 1256 (Ala. 1978), State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874 (1977), and Provence v. State, 337 So.2d 783 (Fla.1976)). As Lesko provides no further elaboration on this point, we will confine our review to his single discernible argument, directed only to the Tenth Circuit McCullah case decided after his resentencing.
Ignoring that his claim is cognizable only as a claim of ineffective assistance, Lesko simply declares, inter alia, that the failure to issue a Simmons charge: violated the Eighth Amendment requirement that a capital jury consider all relevant mitigating evidence; violated the Eighth Amendment's protection against arbitrary and capricious sentences as the jury was not informed of all sentencing choices; offended "evolving standards of decency” in violation of the Eighth Amendment; violated due process as the sentence was imposed based on inaccurate information; violated a supposed due process right to force the jury to choose between death and "life without possibility of parole;” and skewed the jury’s weighing of aggravating and mitigating circumstances in violation of the right to a fair and impartial jury.
The PCRA court cited Eddings v. Oklahoma, 455 U.S. 104, 116-117, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), for this proposition.
It is worth noting that, in cases involving age as a disqualifying constitutional factor both for capital eligibility and eligibility for sentences of life imprisonment without possibility of parole, the U.S. Supreme Court has chosen strictly chronological, hard lines, even though the animating principle involved the same vicissitudes of youth that Lesko cites. See Graham v. Florida,-U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eighth Amendment prohibits sentence of life without parole for juveniles (defined as individuals under 18) who did not commit homicide); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (Eighth Amendment prohibits imposition of capital punishment for offenders committing their crimes prior to age 18) Those over eighteen get no benefit from these constitutional decisions, irrespective of their subjective "psychological and emotional age and level of maturity.”
The statements by Judge Mihalich referred to in the text are statements that he made to the press following the PCHA hearing. Notably, the statements were later cited as the basis for an appellate issue raised by co-defendant Travaglia, who argued that Judge Mihalich should have recused himself from the PCHA proceedings. See Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 369-70 (1995). This Court concluded that the PCHA court did not abuse its discretion in denying Travaglia’s motion for recusal.
Lesko links this argument with the prior argument, asserting that the trial court’s prior failures to grant meritorious challenges for cause violated due process by denying Lesko his full Rules-based complement of peremptory challenges. Related to this issue, Lesko points to trial counsel's testimony at the PCRA hearing where he stated that he would have struck this particular juror if he had any peremptory challenge remaining. We need not consider these additional arguments as we have concluded that the trial court did not abuse its discretion in denying defense counsel's challenges for cause.
The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor in accordance with 42 Pa.C.S. § 971 1(i).
In particular, I agree with the PCRA court that trial counsel's eleventh-hour preparation in a capital case exemplifies the deficient stewardship. While the majority shifts the responsibility for any lapses from counsel to the mental-health expert, Dr. Levit, see Majority Opinion, at 190-92, 15 A.3d at 382-83, Dr. Levit appears to have been put in a very difficult situation, as he was contacted after the trial voir dire process already was underway. See, e.g., N.T., Dec. 15, 1999, at 183 (reflecting Dr. Levit’s testimony that he did not have time to elicit extensive information from family members, "nor was there time between the time I was contacted and the time of the trial to go into any depth”); accord Commonwealth v. Lesko, No. 681 C 1980, slip op. at 11 (C.P. Westmoreland Aug. 7, 2006) ("The inadequacy of Dr. Levit's evaluation was further exacerbated by the fact that he was hired at the last minute.”).
In terms of quantity alone, the defense evidentiary presentation in Sattazahn spanned eight pages of the penalty-hearing transcript, see Commonwealth v. Sattazahn, 597 Pa. 648, 674, 952 A.2d 640, 655 (2008); whereas, the defense presentation on resentencing in Lesko spans three volumes of the transcripts.
In Miller, for my part, I also differed with the majority finding of a reasonable strategy relative to a truncated mitigation investigation, but I did not reach the prejudice issue in Miller as I felt additional development was required in the post-conviction court. See Miller, 605 Pa. at 67-72, 987 A.2d at 678-80 (Saylor, J., dissenting).
28 A.3d 868
COMMONWEALTH of Pennsylvania, Appellee Michael J. TRAVAGLIA, Appellant.
Supreme Court of Pennsylvania.
Argued Sept. 15, 2009.
Decided Sept. 28, 2011.
Ned J. Nakles, Nakles & Nakles, Latrobe, Dante G. Bertani, Greensburg, for Michael J. Travaglia.
Thomas R. Grace, John W. Peck, Westmoreland County District Attorney’s Office, Greensburg, Amy Zapp, PA Office of Attorney General, Harrisburg, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
[OPINION BY Justice TODD. type=majority]
OPINION
Justice TODD.
Michael J. Travaglia appeals the sentence of death imposed by the Westmoreland County Court of Common Pleas following a penalty hearing held pursuant to a grant of federal habeas corpus relief. For the reasons that follow, we affirm Appellant’s judgment of sentence.
In the early morning hours of January 3,1980, Apollo Police Officer Leonard Miller was on duty when a silver-colored Lancia sports car containing three men — Appellant, John Lesko, and R.R. — sped past his position at the Apollo Stop-and-Go convenience store several times. Officer Miller radioed for assistance, then pursued and stopped the sports car. When back-up officers arrived, they found Officer Miller lying on the highway, dead from two bullets fired from a .38 caliber handgun. His service revolver had been drawn, and all six rounds had been fired. Police subsequently located the sports car, which had been abandoned. The windows were shattered and the car had bullet holes in it. It was determined that the car was registered to a William Nichols of Pittsburgh, who had recently disappeared.
Prior to Officer Miller’s homicide, state police received information indicating that Appellant may have been involved in a number of armed robberies and killings in Pittsburgh and surrounding counties. Pursuant to their investigation, the state police found a vehicle owned by a homicide victim abandoned near a motel where Appellant and D.M. had been staying.
Pittsburgh police located M. in the early evening hours of January 3, 1980 in the downtown area of Pittsburgh. While questioning him, they discovered a .38 caliber handgun on his person. M. told police Appellant gave him the weapon and that Appellant and Lesko had at that time talked about killing a police officer. M. then told police that Appellant and Lesko were staying in a room at the Edison Hotel in downtown Pittsburgh. The police proceeded immediately to the Edison Hotel, where they arrested Appellant and Lesko. After having been given their Miranda warnings, the men were individually interrogated. Both gave statements implicating themselves in the killing of Officer Miller, as well as in the killings of William Nichols, Peter Levato, and Marlene Sue Newcomer.
Following various delays caused by two changes of venue and a mistrial, a joint trial of Appellant and Lesko for the murder of Officer Miller commenced in Westmoreland County on January 21, 1981, before Westmoreland County Common Pleas Court Judge Gilfert Mihalich and a jury that had been selected in Berks County. On January 30, 1981, the jury convicted both men of first-degree murder and conspiracy for the killing of Officer Miller, and, on February 3, 1981, both men were sentenced to death. On direct appeal, this Court affirmed the convictions. 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). Subsequently, Appellant filed a petition for relief under the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S.A. §§ 9541 et seq., which the PCHA court denied on October 4, 1985. The PCHA court’s order was affirmed on appeal. See Commonwealth v. Travaglia, 359 Pa.Super. 630, 515 A.2d 620 (1986), appeal denied, 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989).
On June 8, 1990, Governor Robert Casey signed a warrant for the execution of Appellant; on September 9, 1990, however, a stay of execution was issued to allow Appellant to file a petition for habeas corpus. Appellant filed another petition for collateral relief, this time under the PCRA, 42 Pa.C.S.A. §§ 9541-9546, the successor to the PCHA. Appellant’s PCRA petition was denied, and, on appeal, this Court affirmed Appellant’s sentence of death. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).
On May 21, 1996, Appellant filed a petition for writ of habeas corpus in federal court, and the district court issued the writ and ordered a new sentencing hearing on the basis that evidence of Appellant’s guilty plea to the Nichols murder should have been excluded at trial pursuant to a plea agreement. Thereafter, Appellant filed an omnibus pre-trial motion seeking to bar resentencing pursuant to Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997). The trial court denied the motion, but granted Appellant the right to file an immediate appeal. On December 15,1998, the Superior Court affirmed the trial court’s order. Commonwealth v. Travaglia, 723 A.2d 190 (Pa.Super.1998), appeal denied, 559 Pa. 704, 740 A.2d 232 (1999), cert. denied, 529 U.S. 1026, 120 S.Ct. 1436, 146 L.Ed.2d 325 (2000).
Prior to the resentencing hearing scheduled for October 16, 2000, the Commonwealth filed a motion in limine seeking a ruling that it would be permitted to introduce evidence of Appellant’s previous homicide convictions in rebuttal to Appellant’s character evidence. The trial court denied the motion, ruling that evidence of the previous homicides could not be used unless Appellant “opened the door.” In this regard, the trial court ruled that evidence presented by the defense relating to Appellant’s good behavior in prison, and character evidence relating to periods of time which did not encompass the homicides, did not constitute “opening the door.” On October 13, 2000, the Commonwealth filed a notice of appeal, and the Superior Court reversed the trial court’s order, holding the trial court erred in precluding the Commonwealth from introducing evidence of Appellant’s prior convictions, for purposes of rebuttal, after Appellant introduced evidence of his good prison record and his change in personality while in prison, including becoming religious. Commonwealth v. Travaglia, 792 A.2d 1261, 1264 (Pa.Super.2002), appeal denied, 572 Pa. 733, 815 A.2d 633 (2002) (table), cert. denied, 540 U.S. 828, 124 S.Ct. 55, 157. L.Ed.2d 52 (2003).
Appellant’s second penalty hearing began on July 5, 2005, and concluded on July 26, 2005. On July 26, 2005, the jury returned a sentence of death, finding the one aggravating circumstance — that the victim was a police officer killed in the performance of his duty, 42 Pa.C.S.A. § 9711(d)(1) — outweighed the two mitigating circumstances established by Appellant under the catchall provision of Section 9711(e)(8)— that he had lived as a well-adjusted inmate in prison, and that he had changed his life and adopted a Christian lifestyle. Following the denial of his post-sentence motions, Appellant filed the instant appeal, wherein he raises 18 issues regarding his penalty hearing, which we have reordered for ease of discussion.
A. Challenges to Evidentiary Rulings
Appellant raises several claims relating to the trial court’s evidentiary rulings at his penalty hearing. Preliminarily, we note that the admissibility of evidence is solely within the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed on appeal only upon abuse of that discretion. Commonwealth v. Laird, 605 Pa. 137, 168, 988 A.2d 618, 636 (2010). An abuse of discretion will not be found “merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Id. (citation omitted). Moreover, “an erroneous ruling by a trial court on an evidentiary issue does not necessitate relief where the error was harmless beyond a reasonable doubt.” Id. (citation omitted).
1. Trial Court’s Exclusion of Kenneth Miller’s Testimony
Appellant first argues that the trial court erred in excluding the testimony of Kenneth Miller, the Death Penalty Unit Manager at the prison where Appellant is incarcerated, regarding Appellant’s future ability to adjust to the conditions of the general population. See Appellant’s Brief at 13 (Argument I). Mr. Miller testified at length regarding his knowledge of Appellant and Appellant’s discipline record and work history, but when asked whether he believed Appellant would be able to function successfully in the general population if sentenced to life imprisonment, the Commonwealth objected, and the trial court sustained the objection on the basis that the evidence was speculative. When counsel attempted to lay a further foundation, the Commonwealth objected on the basis that the evidence was not relevant, and the trial court sustained that objection. Appellant contends the trial court erred in this regard, arguing that, under Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the issue of a defendant’s future adaptability in prison is a potential mitigating circumstance that may be presented to a penalty phase jury. Appellant further alleges that the prosecutor exploited the absence of Mr. Miller’s testimony by arguing to the jury in his closing argument:
We have shown you two aggravating circumstances. We’ve proven them beyond a reasonable doubt. But it doesn’t end there. We’ve given you a picture of the defendant, Michael J. Travaglia, and the kind of person he is. He’s cruel. He’s brutal. He’s heartless. He’s a predator. And none of us know what’s going to happen to him or how he will behave in the future.
N.T. Trial, 7/5/05-7/26/05, at 1105.
Although at trial the court indicated it would not allow Mr. Miller to offer an opinion as to whether he personally believed Appellant would adjust well to prison life in the general population because such testimony was both speculative and irrelevant, the trial court, in its subsequent opinion, explained:
Pennsylvania Rule of Evidence 602 states that “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” It is not possible for an individual to have personal knowledge of how someone will behave in the future. Any testimony as to how the Defendant would behave in the future would be speculative, thus this Court properly excluded the testimony.
Trial Court Opinion, 10/11/07, at 6. The trial court further noted that the Supreme Court’s ruling in Skipper concerned “testimony regarding present and past adjustment to prison life not future adjustment. The issue in this case is future adjustment.” Id. at 7. Finally, the trial court noted:
Defense counsel in his closing argument referred to Kenneth Miller’s testimony and argued that “there hasn’t been any problem with Mike Travaglia in prison nor is there any evidence that should cause you to believe there will be a problem if you allow him to finish his life in prison.” He argued that the Defendant’s past behavior in prison was indicative of his future behavior if given a life sentence---Whether or not the Defendant would adjust to life in prison if given a life sentence was properly left to the jury----The jury was also instructed that the Defendant’s adjustment to life in prison was presented as a mitigating factor and that if they found it to be a mitigating factorQ it was to be balanced against any aggravating factors, if any, they found.
Id. at 7-8 (citations to trial transcript omitted).
As noted above, in support of his argument, Appellant relies on the United States Supreme Court’s decision in Skipper. In Skipper, the petitioner sought to introduce at his capital sentencing trial the testimony of two jailers and one regular visitor, who would have testified that petitioner had “made a good adjustment” during the seven months he had been in prison awaiting trial. The trial court, however, held that such evidence was irrelevant and inadmissible because whether petitioner could adjust to life in prison, if spared the death penalty, was not an issue in the case. On appeal, the United States Supreme Court reversed, noting, inter alia, that evidence of a defendant’s past conduct in prison may be “indicative of his probable future behavior.” 476 U.S. at 5, 106 S.Ct. 1669. The Court further opined “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by nature relevant to the sentencing determination.” Id. at 7, 106 S.Ct. 1669. The Court concluded a defendant cannot be precluded “from introducing otherwise admissible evidence for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment.” Id.
The trial court’s finding in the instant case that evidence of Appellant’s ability to make a favorable adjustment to life in prison was not relevant as a mitigating factor clearly is inconsistent with the Supreme Court’s pronouncement in Skipper. However, as this Court previously explained in our decision affirming the denial of Appellant’s second petition for post-conviction relief, “neither Skipper nor Pennsylvania’s sentencing scheme suspends the rules and law of evidence; the proffered evidence must be competent, or it may not be presented to the jury.” Travaglia, 541 Pa. at 133, 661 A.2d at 364; Skipper, 476 U.S. at 7, 106 S.Ct. 1669 (prison adjustment evidence must be “otherwise admissible”). In the instant case, the trial court determined that Mr. Miller’s testimony as to his personal opinion regarding how Appellant would adjust to prison life if placed in the general population was speculative under Rule 602 of the Pennsylvania Rules of Evidence, and, therefore, inadmissible. Appellant does not challenge the trial court’s determination that Mr. Miller’s testimony was speculative, and, indeed, a review of the record reveals that Mr. Miller testified as a fact witness, not an expert. Thus, any error by the trial court in concluding that Mr. Miller’s testimony was not relevant was harmless, as the trial court properly excluded Mr. Miller’s personal opinion testimony under Rule 602. Accordingly, we reject Appellant’s first claim.
2. Trial CouH’s Exclusion of Other Mitigation Evidence
Appellant additionally asserts the trial court erred in prohibiting him from introducing the following mitigation evidence related to his good character:
1. Evidence from Reverend Kathy Kay Higgins, Prison Chaplain, concerning her professional opinion as to the sincerity of [Appellant’s] Christian faith;
2. Evidence from [the] Department of Corrections counsel- or, Rocky Farmartino, concerning his opinion about the sincerity of [Appellant’s] beliefs and remorse for the crimes he committed; and
3. [Testimony from Appellant’s] prior attorney, Joseph Luciano [sic], ... concerning the positive attributes of [Appellant’s] attitude and his ability to cooperate with his counsel as compared to those of other inmates that the attorney had represented.
See Appellant’s Brief at 32-33 (Argument IV). Appellant claims the testimony of these three individuals was crucial because they are part of the small group who know him, and their testimony regarding the sincerity of his beliefs was important to Appellant’s rebuttal of the arguments made by the Commonwealth in its closing argument. Appellant’s Brief at 34.
While, as we recognized in Commonwealth v. Lesko, “a defendant is to be accorded wide latitude in demonstrating mitigating circumstances,” 553 Pa. at 246, 719 A.2d at 223 (1998), the record belies Appellant’s claim that the trial court denied him the opportunity to present crucial evidence relating to mitigating circumstances. As the trial court explained:
Joseph Lucciano the Defendant’s former attorney testified as to his interaction with the Defendant. Lucciano provided testimony that the Defendant was appreciative of the work he had done for him on the case and was cooperative when asked for information. Lucciano also served as the best man at the Defendant’s wedding and spoke to his observations of the Defendant prior to and after the wedding. He explained that he had been informed that the Defendant had become a Christian. He observed after the Defendant’s wedding that the Defendant no longer used rough language. The Defendant explained that his wife had indicated that the use of rough language was not consistent with genuine faith. Lucciano also testified that the Defendant expressed that he was sorry for the crimes he had committed and that “he was very sorry for the pain that he had caused to the families, he was genuinely sorry for all the things that he had been involved with ...”
Lucciano was precluded from testifying to how seriously he had contemplated being the best man in the Defendant’s wedding. He was further precluded from comparing his relationship with the Defendant to his relationship with other prisoners. The testimony was precluded for lack of relevance. “Evidence which tends to establish some fact material to the case, or which tends to make a fact at issue more or less probable, is relevant.” The precluded testimony does not make the Defendant’s contention that he had conformed and become a Christian more or less likely. Thus the testimony was properly excluded.
Rocky Farmartino was a Corrections Counselor II who was assigned to work with the Defendant. Mr. Farmartino was permitted to read from his report about discussions he had with the Defendant in which the Defendant claimed he had converted to Christianity. Farmartino testified that as a result of his meetings with the Defendant he recommended in a commutation summary that the Governor show mercy. Farmartino was prohibited from testifying as to his opinion of the sincerity of the Defendant’s beliefs. This Court ruled that Farmartino’s personal opinion as to whether or not the Defendant was sincere in his religious beliefs was irrelevant. Farmartino’s opinion in that regard does not make the Defendant’s contention that he had become a Christian more or less likely. While the specific opinion of the witness was not allowed in testimony, the witness’ opinion was admitted by way of Defense Exhibit R, in which Farmartino stated that “In the opinion of this counselor, Mr. Travaglia seems quite sincere with regards to his expressed beliefs. He seems to be remorseful with regards to his crimes ...” There is no evidence that the Court precluded this witness from providing relevant mitigating evidence.
Reverend Kathy Higgins is a Chaplain at the state correctional facility where the Defendant is housed. The Defendant’s specific objection is that Reverend Higgins was not permitted to provide her professional opinion as to the sincerity of the Defendant’s Christian faith. However, Reverend Higgins was permitted to read from a letter she wrote, on the Defendant’s behalf, for admission into an external Christian congregation. She described her interactions with the Defendant and stated that she believed what she wrote in the letter to be true. In the letter she stated “I do believe that Michael is genuinely seeking after Jesus Christ.” This statement is an opinion of her belief that the Defendant was sincere about his faith and the Court notes that the letter was admitted into evidence as Defense Exhibit Z.
The defense witnesses were permitted to provide mitigating evidence as to the Defendant’s character. The Jury, after instructions on how to determine what was mitigating evidence and how to use that evidence in their decision as to sentencing, found two mitigating factors. The first being that the Defendant had lived as a well adjusted inmate in prison and the second being that the Defendant had changed his life and adopted a Christian lifestyle. There is no evidence that the court precluded these witnesses from providing relevant mitigating evidence thus the Defendant’s argument lacks merit.
Trial Court Opinion, 10/11/07, at 13-15 (case citations and citations to transcript omitted, emphasis added).
Although Appellant contends the three witnesses “could have added so much more to the evidence of mitigation had they been permitted to testify,” Appellant’s Brief at 35, it is clear that the evidence of mitigating circumstances Appellant sought to have admitted was, in fact, admitted by the trial court, albeit through different means than Appellant desired. Accordingly, Appellant is not entitled to relief on this claim.
3. Superior Court’s Ruling that Evidence of Positive Prison Adjustment is Rebuttable
Appellant next argues that, on the Commonwealth’s appeal of the trial court’s denial of its motion in limine, the Superior Court erred in holding that, in capital penalty hearings, evidence of positive prison adjustment may be rebutted by otherwise inadmissible evidence of crimes that were committed before a defendant was incarcerated. See Appellant’s Brief at 19 (Argument II) (citing Commonwealth v. Travaglia, 792 A.2d at 1264). In so arguing, Appellant contends that evidence of positive prison adjustment is not character evidence, as it does not suggest that a defendant “is a good person, but that, as a sentencing factor, he can be a good prisoner.” Appellant’s Brief at 20. Thus, according to Appellant, the Commonwealth should have been precluded from introducing evidence of the Levato and Newcomer homicides to rebut evidence of his positive prison adjustment.
Appellant further argues that, to the extent evidence of his good behavior in prison is considered character evidence, it pertains only to evidence of his character in prison, and should not be subject to rebuttal through evidence of crimes committed outside of or prior to his incarceration. In this regard, Appellant maintains, “the evidence appropriate to rebut ‘good’ prison behavior is ‘bad’ prison behavior, not behavior external to the prison setting.” Appellant’s Brief at 22 (citing Skipper, supra).
It is clear that a defendant may present any admissible evidence relevant to any mitigating circumstance, including any evidence regarding the character and record of the defendant. 42 Pa.C.S.A. § 9711(a)(2) and (e)(8); Skipper, supra. However, “it is equally clear that the defendant is not entitled to present, without challenge or rebuttal by the Commonwealth, false or misleading evidence or to create a false impression of his character or record.” Commonwealth v. O’Shea, 523 Pa. 384, 404, 567 A.2d 1023, 1032 (1989).
Furthermore, contrary to Appellant’s contentions, this Court considers evidence of a defendant’s good behavior in prison, at least when presented along with other more traditional character evidence, to be character evidence subject to rebuttal by the Commonwealth. For example, in Commonwealth v. Fisher, we rejected the appellant’s argument that the trial court erroneously allowed the Commonwealth to question him regarding the meaning of a tattoo of the word “Kuda” he had on his arm, reasoning:
At the penalty phase hearing, Appellant presented the testimony of his Corrections Counselor Bradley Newman as to Appellant’s reputation for being kind, courteous and relating well with others while imprisoned. Appellant’s defense counsel characterized Appellant as a war hero (since Appellant received a Purple Heart in Vietnam) and a model prisoner. Appellant presented evidence that he was devoutly religious. By presenting this evidence as to his good character, Appellant put his character at issue. Having done so, the prosecution was entitled to cross-examine Appellant regarding his tattoo in order to rebut the inference of good character.
559 Pa. 558, 579, 741 A.2d 1234, 1245 (2000).
As noted above, Appellant introduced the testimony of Kenneth Miller, who testified extensively, and favorably, regarding Appellant’s discipline record and work history while Appellant was in prison. However, this testimony comprised only a portion of the character evidence introduced by Appellant. Indeed, as the Commonwealth- points out in its brief, Appellant presented the testimony of approximately 20 witnesses who testified to Appellant’s character, including that, as a student, Appellant was well-behaved, respectful, disciplined, and well-liked; that Appellant had become addicted to drugs prior to the occurrence of the crimes; and that, since his imprisonment, Appellant has found religion and become a “new man.” Although Appellant attempts to isolate the testimony regarding his good behavior in prison from the remainder of his character evidence, such evidence of good behavior was not presented in a vacuum, and the prosecution was entitled to rebut Appellant’s portfolio of character evidence with evidence of behavior that occurred prior to Appellant’s incarceration. See 42 Pa.C.S.A. § 5918(1) (defendant may be cross-examined regarding prior crimes if he introduces evidence in support of his own good character or reputation). Accordingly, we hold that Appellant is not entitled to relief.
4. Evidence of Appellant’s Guilty Plea to the Nichols Homicide
Appellant next contends that the trial court erred in denying his motion for a mistrial when, after being warned by the trial court against attempting to introduce evidence of Appellant’s guilty plea to the Nichols homicide in Indiana County, the prosecutor twice mentioned the same. See Appellant’s Brief at 24 (Argument III). A mistrial is an extreme remedy that is required only where the challenged event deprived the accused of a fair and impartial trial. Laird, 605 Pa. at 170, 988 A.2d at 638. We review the denial of a mistrial under the abuse of discretion standard. Id.
The basis of Appellant’s claim is the November 7, 1996 order by the Honorable Alan N. Bloch of the United States District Court for the Western District, which was issued at the conclusion of the hearing on Appellant’s habeas petition:
IT IS ORDERED that the petition for writ of habeas corpus filed by Michael Travaglia is granted and that he is to be discharged from custody unless, within one-hundred twenty days, the County of Westmoreland holds a resentencing hearing at which evidence of his Indiana County guilty plea is excluded.
Order, Civil Action No. 90-1469,11/7/96, at 1.
The impact of the above order was the subject of sidebar discussion at Appellant’s sentencing hearing. The trial court determined that the order precluded evidence of Appellant’s guilty plea to the Nichols homicide, but not evidence of the facts and circumstances surrounding the homicide. N.T. Trial, 7/5/05-7/26/05, at 527. Subsequently, however, the prosecutor argued that evidence of Appellant’s guilty plea to the Nichols homicide was precluded only if introduced as an aggravating circumstance. Id. at 532. The trial court disagreed, and instructed the prosecutor not to mention Appellant’s guilty plea. Id. at 540-41.
Thereafter, on two occasions, the prosecutor asked two of Appellant’s character witnesses, R.G. and R.M., whether they knew that Appellant had been convicted in Indiana County for the murder of William Nichols. On both occasions, trial counsel objected and requested a mistrial, but the trial court denied the request. In its opinion and order, the trial court acknowledged there was some confusion and/or disagreement regarding the impact of the federal court order, but concluded, after reviewing the order, that it properly denied Appellant’s motions for a mistrial:
The first page of the Federal Court Recommendation[] indicates that at the new sentencing trial that evidence of the Defendant’s guilty plea in reference to the [Nichols’] homicide is to be excluded____This would appear to support the Defendant’s argument that there was to be no mention of said plea. However, the Defendant sought relief from the Federal Court because at his original sentencing his plea to the [Nichols’] homicide was used as an aggravating factor in violation of an agreement that if he pled guilty to [Nichols’] homicide, the plea could not be used as an aggravating circumstance in the present case. Thus, it was because the guilty plea in reference to the [Nichols’] homicide was presented as an aggravating factor the Federal Court granted the Defendant relief by vacating the original sentence and ordering a new sentencing trial.
Trial Court Opinion, 10/11/07, at 8-9. The trial court acknowledged that the federal order did not address specifically the issue of whether the Commonwealth could question Appellant’s character references regarding their knowledge of Appellant’s guilty plea, but noted that the Superior Court previously ruled the Commonwealth was entitled to present evidence of Appellant’s prior convictions, including his guilty pleas, if Appellant presented testimony in support of his good character. Id. at 10 (citing Commonwealth v. Travaglia, 792 A.2d 1261 (Pa.Super.2002)). Appellant, conversely, asserts that the language of the federal order is broad, and, as a result, does not link exclusion of evidence of his guilty plea to the Nichols homicide solely to the Commonwealth’s attempt to prove aggravating circumstances.
Although the federal court order does not, on its face, link the preclusion of evidence of Appellant’s guilty plea to the Nichols homicide to an attempt by the Commonwealth to establish aggravating factors, the Report and Recommendation by Magistrate Judge Robert C. Mitchell, which was adopted by Judge Bloch as the opinion in support of his November 7,1996 order, suggests otherwise. The Report and Recommendation specifically indicates that the understanding between the parties, including the prosecutor and the Indiana County Court of Common Pleas trial judge, was that “until sentence was imposed the conviction was not final and could not be introduced as an aggravating factor in the Westmoreland County proceedings.” Report and Recommendation, 10/7/96, at 15 n. 7 (emphasis added). As a result, we decline to hold that the trial court, in ruling on the mistrial motion, erred in concluding that the federal order precluded evidence of Appellant’s guilty plea to the Nichols homicide only where such evidence was introduced to prove aggravating circumstances.
Thus, while, in raising the Nichols plea, the Commonwealth seemingly violated the trial court’s earlier ruling precluding it from doing just that, we conclude the trial court did not err in denying a mistrial on that basis. That is, we agree the evidence introduced at trial did not run afoul of the federal court order. Moreover, when the defense presents evidence of a defendant’s reputation for peacefulness, the prosecution “is permitted to test that testimony by inquiry into whether the witness is aware of convictions which tend to refute that reputation.” See Commonwealth v. Albrecht, 554 Pa. 31, 48 n. 10, 720 A.2d 693, 702 n. 10 (1998). As evidence of Appellant’s guilty plea to the Nichols homicide was introduced to test the character witnesses’ awareness of Appellant’s criminal background, we find no error by the trial court on that basis.
5. Admission of Evidence of the Circumstances Surrounding the Nichols Homicide
Appellant next argues that the trial court erred in allowing the Commonwealth to introduce evidence relating to the circumstances surrounding the Nichols homicide (as compared to evidence of Appellant’s guilty plea to that homicide, discussed supra) at the sentencing hearing, because such evidence had no probative value and was overwhelmingly prejudicial. See Appellant’s Brief at 46 (Argument XI). With respect to the Commonwealth’s reliance on prior decisions in this case wherein evidence of the Nichols homicide was deemed admissible to prove Appellant’s motive and intent in the murder of Officer Miller, Appellant responds — incorrectly—that those decisions involved guilt-phase proceedings, whereas the instant proceeding was a penalty-phase hearing. Appellant contends that, in the instant case, the jury already had determined the degree of guilt, and, therefore, motive and intent were no longer at issue. Appellant further argues the only relevant aggravating circumstance at issue during the sentencing proceeding was whether Officer Miller was a police officer killed in the line of duty, and, because the defense did not contest this fact, there was no probative value in introducing evidence of the Nichols homicide. Finally, Appellant asserts that evidence of the Nichols homicide created in the jury a hostility against Appellant, and that any cautionary instruction limiting the use of the evidence was insufficient to cure the error.
This Court addressed the same issue raised by Appellant herein in Commonwealth v. Lesko, supra, which involved the appeal by Appellant’s co-defendant, Lesko, of his death penalty verdict. Recognizing the district court had similarly ruled that Lesko’s guilty plea in the Nichols case should not be introduced at Lesko’s second penalty trial, we considered whether it was error to introduce evidence of the circumstances of the Nichols homicide in order to prove Lesko’s intent and motive in killing Officer Miller. We reviewed the following jury charge given by the trial court:
You have heard evidence concerning the killing of William Nichols in Indiana County. This evidence may be considered only as evidence tending to show the motive for and the circumstances surrounding the killing of Officer Leonard Miller. This event is not to be considered by you as an aggravating circumstance upon which you might base a sentence of death. That is, that the killing of William Nichols is not to be considered as an aggravating circumstance, not as a conviction to determine if Mr. Lesko has a significant history of felony convictions involving the use or threat of violence toward a person or persons, nor as a conviction of any state offense committed either before or at the time of the offense at issue for which a sentence of life imprisonment or death was imposable. I want it to be clear to you that you are not to use the evidence of the Nichols killing to determine any of the aggravating circumstances described to you.
553 Pa. at 252, 719 A.2d at 226. Noting that the circumstances surrounding a killing are admissible for the jury to consider in imposing sentence, we concluded, “[b]ecause the jury was clearly instructed that the Nichols matter was introduced into evidence only for the purpose of showing the motive and circumstances surrounding the killing of Officer Miller, it was not error to admit evidence of the Nichols evidence for the narrow purpose which was instructed.” Id. at 253, 719 A.2d at 226.
In the instant case, the record reveals that a similar jury instruction was given by the trial court:
You’ve heard evidence concerning the murder of William Nichols. This evidence may not be used as an aggravating circumstance. The purpose for which you may consider this evidence is as proof of motive, intent or absence of accident in the killing of Officer Miller or to rebut evidence of good character offered on behalf of the defendant.
N.T. Trial, 7/5/05-7/26/05, at 1167. Consistent with our determination that evidence of the circumstances surrounding the Nichols homicide was admissible in Lesko’s penalty phase proceeding to establish motive, intent, or absence of mistake, we reject Appellant’s claim that the trial court erred in allowing the prosecution to introduce evidence of the Nichols homicide at his penalty hearing. Moreover, although Appellant suggests the trial court’s cautionary instruction in the instant case could not have alleviated the possibility of prejudice in the minds of the jury, we disagree. The trial court’s instructions clearly directed the jury that it could not consider evidence of the murder of William Nichols as an aggravating circumstance, and it is well established that a jury is presumed to follow a court’s instructions. Commonwealth v. Smith, 606 Pa. 127, 182, 995 A.2d 1143, 1163 (2010). Accordingly, Appellant is not entitled to relief on this claim.
6. Admission of Evidence of the Levato and Newcomer Homicides
Appellant next argues the trial court erred in allowing the Commonwealth to introduce testimony “concerning the graphic details of the Levato and Newcomer homicides in violation of its pretrial ruling.” See Appellant’s Brief at 35 (Argument V). In recognition of the Commonwealth’s agreement not to use evidence of those murders as aggravating circumstances in the instant case, the trial court ruled the Commonwealth was entitled to present evidence of Appellant’s prior convictions only to suggest “other or additional motives for his good prison record and to rebut his non-violent character testimony.” N.T. Trial, 7/5/05-7/26/05, at 414. Appellant claims that, over defense counsel’s objection and in contravention of the trial court’s ruling “specifically limiting the Commonwealth to the introduction of conviction, the name of the victim and the date of the offense,” Appellant’s Brief at 35, the Commonwealth
introduced the fact that three gunshot wounds to the head with a .22 caliber gun had caused the death [of Mr. Levato] and that Mr. Levato was found against a tree in a wooded area. In the Newcomer homicide, information was improperly educed that a .22 caliber gun was used and the location of the homicide.
Id. at 36.
A review of the trial transcript reveals that, at least initially, the trial court instructed the prosecution that it could introduce evidence as to the date of the conviction, the date of the crime, and the name of the victim, but not additional facts or circumstances that would essentially create an aggravating circumstance. N.T. Trial, 7/5/05-7/26/05, at 415. The trial court specifically stated that the prosecution could not introduce evidence as to the manner of death. Id. at 421. Subsequent to this ruling, however, Trooper Richard E. Dickey, II, who was an investigating officer with regard to the Newcomer and Levato homicides, and who filed the criminal complaint against Appellant, took the stand. The prosecutor provided Trooper Dickey with copies of the criminal complaint; the criminal information; and the sentencing order, and requested the documents be admitted into evidence; defense counsel did not object. Id. at 1015. The following exchange between the prosecutor and Trooper Dickey then occurred:
Q. Regarding Peter Levato, you were one of the investigators in that case?
A. Yes, sir.
Q. What was the cause of his death?
A. Three gunshot wounds. Two to the head and one to the chest area I believe.
Q. And when was the homicide?
A. That occurred sometime between December 27th to December 29th.
Q. What year?
A. Of 1979.
Q. And does the Information that was filed, does it indicate the weapon that was used?
A. Yes, it does.
Q. What is that?
A. It’s a .22 caliber gun.
Q. And he pled guilty to third degree murder and criminal conspiracy to commit murder?
A. Yes.
Q. Where did the murder occur? Well, let me ask you this. Where was Mr. Levato’s body found?
A. It was found up against a tree in a wooded area along side Loyalhanna Creek just north of the crest of the
Loyalhanna Dam in Loyalhanna Township, Westmoreland County.
Id. at 1016-17.
A few moments after this exchange, defense counsel requested a sidebar and lodged an objection with respect to Trooper Dickey’s testimony as to the type of gun used, and the number and location of gunshots to the victim. The trial court noted, but overruled, the objection, concluding the trooper could testify to whatever details were contained in the criminal complaint or criminal information. Trooper Dickey then proceeded to testify that, according to the criminal information, Marlene Newcomer was killed along U.S. Route 22 with a .22 caliber gun. Id. at 1020. No additional objection was lodged by defense counsel following this testimony.
Although Appellant is correct in his argument that the trial court ultimately allowed the Commonwealth to introduce evidence that exceeded the scope of its pre-trial ruling, essentially overruling sub silentio its prior holding, Appellant fails to establish that he is entitled to relief on this basis. As the testimony quoted above reveals, the trial court determined that it would allow the prosecution to introduce evidence which was contained in the criminal complaint and/or criminal information, and Appellant does not explain why this was improper. Indeed, as previously stated, once Appellant introduced evidence of his good character in support of mitigating circumstances, the prosecution was entitled to introduce evidence of the other homicides to rebut such character evidence.
Moreover, we do not agree with Appellant’s characterization of the evidence as “graphic,” and note that the trial court specifically instructed the jury as follows:
Now, you heard evidence that Michael Travaglia pled guilty and was convicted of third degree murder and criminal conspiracy in the deaths of Peter Levato and Marlene Newcomer. By express agreement of the Commonwealth and the defense at the time of those convictions, the evidence of those convictions would not be used as an aggravating circumstance or circumstances. The sole purpose for which you may consider the evidence of these convictions is to rebut evidence of good character offered on behalf of the defendant.
N.T. Trial, 7/5/05-7/26/05, at 1166-67. We reiterate that a jury is presumed to follow a trial court’s instructions, see Smith, supra, and Appellant has failed to establish that it failed to do so in this case. Accordingly, he is not entitled to relief.
7. Failure to Exclude Evidence of the Nichols, Levato, and Newcomer Homicides under Commonwealth v. Beasley
As an additional basis for his contention that the trial court erred in failing to exclude evidence of the Nichols, Levato, and Newcomer homicides, Appellant relies on this Court’s decision in Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984). See Appellant’s Brief at 45 (Argument X). In Beasley, the appellant alleged trial court error in allowing the Commonwealth to introduce evidence at his penalty phase proceeding that the appellant had been convicted and sentenced to death for the first-degree murder of a police officer three months earlier. According to the appellant, the prosecution should have been limited to establishing only the fact that appellant was convicted of previous murders, without elaboration as to the facts and circumstances, or the penalties imposed. In rejecting the appellant’s argument, this Court explained:
Inasmuch as 42 Pa.C.S.A. § 9711(d) begins with the preface, “Aggravating circumstances shall be limited to the following ... ”, it is clear that the legislature did not intend consideration by the jury of matters extraneous to the enumerated aggravating circumstances. The relevant provision, (d)(9), focuses upon past “convictions” as being an aggravating circumstance. We do not believe the legislative reference to “convictions” is so narrow in scope as to render extraneous all of the facts and circumstances of the convictions, or the sentences imposed.
In this Commonwealth, sentencing has long been regarded as having at its core a function of character analysis. See Commonwealth v. Bell, [417 Pa. 291, 208 A.2d 465 (1965) ], and the central idea of the present sentencing statute is to allow a jury to take into account such relevant information, bearing upon a defendant’s character and record, as is applicable to the task of considering the enumerated aggravating circumstances. Consideration of prior “convictions” was not intended to be a meaningless and abstract ritual, but rather a process through which a jury would gain considerable insight into a defendant’s character. The nature of an offense, as ascertained through examination of the circumstances concomitant to its commission, has much bearing upon the character of a defendant, and, indeed, without reference to those facts and circumstances, consideration of “convictions” would be a hollow process, yielding far less information about a defendant’s character than is relevant.
Convictions are defined by the essential and necessary facts upon which they are based, and judgments of sentence flow naturally from, and form an integral part of, those convictions. Thus, reason impels that the construction of the term “convictions” in 42 Pa.C.S.A. § 9711(d)(9) be such as to permit consideration of the essential and necessary facts pertaining to the convictions, including the circumstances of the crimes and the sentences imposed.
505 Pa. at 288-89, 479 A.2d at 465.
Appellant argues that, in Beasley, this Court permitted “some explanation of the facts surrounding [the appellant’s] conviction only because the conviction was being introduced as a valid aggravating circumstance.... The Court was clearly not making a finding that the facts surrounding a prior conviction were admissible in instances where that prior conviction did not qualify as an aggravating circumstance.” Appellant’s Brief at 45 (emphasis original). Appellant contends that, because, by agreement, his convictions for the Nichols, Levato and Newcomer homicides could not be “introduced in the present case as valid aggravating circumstances, the facts surrounding those convictions are wholly immaterial and irrelevant.” Id.
The Commonwealth maintains that, although this Court’s language in Beasley referred to aggravating circumstances, “the same reasoning applies equally to convictions introduced to rebut [Appellant’s] claim that he is now a good person.” Commonwealth’s Brief at 46. We agree with the Commonwealth in this regard. As discussed above, evidence regarding the circumstances of the Nichols, Levato, and Newcomer homicides was admissible to demonstrate Appellant’s motive and intent in killing Officer Miller, and to rebut the evidence of good character offered by Appellant. Beasley does not stand for the proposition that evidence of prior convictions is admissible only if such evidence is used to support a finding of aggravating circumstances.
Appellant additionally argues that, based on this Court’s statement in Beasley that the term “conviction” under Section 9711(d)(9) includes consideration of the surrounding circumstances of the crime, “an agreement not to introduce ‘convictions’ must logically require that not only should convictions not be introduced but so [too] should their underlying facts and circumstances be excluded.” Appellant’s Brief at 46. This Court, however, did not countenance such reverse logic in Beasley, and we decline to do so now.
8. Failure to Exclude Evidence of the Convenience Store Robbery
Appellant next contends the trial court erred in allowing the Commonwealth to introduce at his penalty hearing, for the purpose of establishing an aggravating circumstance, the testimony of a victim of a convenience store robbery that occurred on December 9, 1979, and to which Appellant pled guilty in 1981. See Appellant’s Brief at 87 (Argument VI). Appellant asserts that evidence of this robbery conviction had already been introduced through the testimony of the prosecuting officer, Robert Luniewski, as well as through introduction of the criminal information, when the Commonwealth called a victim of the robbery, M.C., as a witness. The victim testified to additional facts regarding the robbery, including the layout of the store; her familiarity with Appellant as a customer prior to the robbery; her efforts in the investigation; and her testimony at Appellant’s preliminary hearing in 1980. The Commonwealth then asked the victim to describe the effect the robbery had on her immediately after it occurred and since that time, and the victim responded:
During the time the robbery was taking place I was terrified. I was very much afraid for my life. I knew in my heart that they intended to kill me because I could identify them not by name but because they had been in the store so many times, and I felt that because I could identify them that they did not want me alive.
N.T. Trial, 7/5/05-7/26/05, at 518.
Appellant’s counsel objected to the victim’s testimony and sought to have it stricken from the record on the basis that the robbery conviction was introduced as an aggravating circumstance, and the victim’s testimony went beyond the details of the robbery itself into victim impact testimony, which was not relevant for the purpose of using the conviction as an aggravating factor. Although Appellant concedes the jury did not find that an aggravating circumstance was present as a result of the robbery, he avers the victim’s testimony was “highly prejudicial” and harmful to his case. Appellant’s Brief at 39. Appellant additionally argues the trial court erred in allowing consideration of the single robbery conviction to be considered as a possible aggravating circumstance because the language of the sentencing code “requires more than one conviction” in order to constitute an aggravating circumstance. Id. As the jury failed to find that an aggravating circumstance existed based on evidence of the robbery, we hold Appellant is not entitled to relief.
In Commonwealth v. Jones, this Court considered a similar argument by the appellant. In that case, Jones argued, inter alia, that three aggravating circumstances — which, as in the instant case, were not found by the jury- — -should not have been presented to the jury because they were not supported by sufficient evidence. Jones maintained that he was nonetheless prejudiced by the presentation of the aggravating circumstances because the presentation “branded [him] as the alleged leader of [a drug organization] rather than the victim’s murderer.” 542 Pa. 464, 521, 668 A.2d 491, 519 (1995). In rejecting the appellant’s argument, this Court explained:
A death sentence will only be reversed if the jury relied on an unsupported and, therefore, improper aggravating circumstance in rendering its penalty phase verdict. Commonwealth v. Williams, 537 Pa. 1, 24, 640 A.2d 1251, 1263 (1994). However, reversal of a defendant’s sentence is not warranted by submitting an aggravating circumstance to the jury if the jury does not find beyond a reasonable doubt the existence of that improper aggravating circumstance in rendering its verdict of death since error is harmless.
Id. at 521-22, 668 A.2d at 519; see also Commonwealth v. Cousar, 593 Pa. 204, 233, 928 A.2d 1025, 1042 (2007) (prosecutor’s reference to the physical proximity of another individual to establish the aggravating circumstance of knowingly creating a grave risk of death to another, even if “inappropriate,” was harmless error because jury did not find (d)(7) aggravator (citing Jones)); Commonwealth v. Chmiel, 585 Pa. 547, 612, 889 A.2d 501, 539 (2005) (“A death sentence will only be reversed if the jury relied on an unsupported and, therefore, improper aggravating circumstance in rendering its penalty phase verdict.” (citing Jones)).
Although Jones involved aggravating circumstances which were not supported by sufficient evidence, and the instant case involves evidence which, according to Appellant, went beyond what was appropriate for establishing an aggravating circumstance in the first instance, the basis of both Jones’ and Appellant’s argument is that the improperly admitted evidence prejudiced the jury against them. Moreover, in both cases, the jury declined to find an aggravating circumstance based on the improperly admitted evidence. Thus, consistent with our holding in Jones, we hold that any error with regard to the admission of testimony concerning the convenience store robbery was harmless, and does not entitle Appellant to relief.
9. Admission of Photograph of the Victim
Appellant next contends the trial court erred in admitting at his sentencing hearing a photograph of Officer Miller’s body at the crime scene. See Appellant’s Brief at 40 (Argument VII). In support of his argument, Appellant contends the photograph “had no probative value,” because the jury had already rendered a first-degree murder conviction, and evidence regarding the crime scene, including the location of Officer Miller’s body, had already been introduced by other witnesses. Appellant’s Brief at 40. Appellant further avers the photograph had “great prejudicial impact.” Id. at 41.
The Commonwealth disputes Appellant’s suggestion that the photograph depicting the location of Officer Miller’s body was inflammatory. The Commonwealth additionally argues that indirect testimony regarding what is depicted in a photograph “does not inevitably render direct photographic evidence inadmissible,” Commonwealth’s Brief at 40, and, in support of its position, cites this Court’s decision in Commonwealth v. Begley, 566 Pa. 239, 268, 780 A.2d 605, 622-23 (2001) (“even where the body’s condition can be described through testimony from a medical examiner, such testimony does not obviate the admissibility of photographs”). Finally, the Commonwealth notes that this same issue was raised by Appellant’s co-defendant, Lesko, and was rejected by this Court, in Lesko, 553 Pa. at 249, 719 A.2d at 225.
The admissibility of photographic evidence depicting a crime scene is within the sound discretion of the trial court, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Baez, 554 Pa. 66, 97, 720 A.2d 711, 726 (1998). In determining whether a photograph is admissible, a trial court must first consider whether the photograph is, by its very nature, inflammatory. If the photograph is deemed inflammatory, the court must then determine “whether the essential evidentiary value of the photograph outweighs the likelihood that the photograph will improperly inflame the minds and passions of the jury.” Id.
In the instant case, the trial court admitted the crime scene photograph into evidence, having determined that the photograph was not prejudicial because, inter alia, the photograph was black and white; the injuries Officer Miller sustained were not visible because his body was covered by a blanket; and, due to the time of night and the weather and road conditions, it was difficult to determine from the photograph whether there was any blood visible on the road. Trial Court Opinion, 10/11/07, at 20.
As the Commonwealth points out, in Lesko, supra, John Lesko challenged the admission of evidence consisting of revolvers, bullets, autopsy reports, and the same photograph of the crime scene at issue herein. With respect to the photograph, this Court explained,
the only photograph admitted over defense objection was a black and white photograph of the crime scene in the Miller homicide. It showed the officer’s body lying in the road under a blanket. This photograph served to familiarize the jury with the facts and circumstances of the crime and was not unduly prejudicial.... [Tjhis evidence was a relevant and proper factor in the jury’s consideration of the sentence which should be imposed.
553 Pa. at 249-50, 719 A.2d at 225.
We likewise hold that Appellant is not entitled to relief on his claim. Our review confirms the trial court’s characterization of the photograph: it is in black and white, and, although it shows Officer Miller’s body and blood on the road, his body is covered with a blanket so that his wounds are not visible. Accordingly, we cannot conclude that it was inflammatory, and on this basis we reject Appellant’s claim.
10. R. Testimony
Appellant next asserts that one of the Commonwealth’s witnesses, R.R., committed perjury at Appellant’s first trial when he testified that he had not entered into a plea agreement. See Appellant’s Brief at 44 (Argument IX). Appellant contends that it came to light at his penalty trial that R. “knew and was aware that the Commonwealth was not going to charge him at all or bring any evidence against him at the juvenile hearing if he cooperated,” and, thus, that R.’s testimony was false. Id. at 44. Appellant concedes, however, that this issue “is not technically an appellate issue from the sentencing proceeding,” and that he is raising the argument now “to avoid potential waiver of future collateral appeals.” Id. As this issue is not properly before us, we do not address it further.
B. Challenges to 42 Pa.C.S.A. § 9711
In addition to his claims based on the trial court’s evidentiary rulings, Appellant raises numerous challenges to 42 Pa. C.S.A. § 9711, which governs sentencing procedures in first-degree murder cases, all of which were raised before and rejected by the trial court as having been previously litigated before the Superior Court, either on Appellant’s immediate appeal of the denial of his pre-trial motion to bar resentencing, Travaglia, 723 A.2d 190, or on the Commonwealth’s appeal of the denial of 'its motion in limine prior to Appellant’s new penalty hearing, Travaglia, 792 A.2d 1261. See Trial Court Opinion, at 5. We first address his general challenges to Section 9711.
1. General Challenges to Section 9711
Appellant contends that Section 9711 violates due process and equal protection by allowing imposition of the death penalty in an arbitrary fashion. See Appellant’s Brief at 74 (Argument XVI). Specifically, he argues “the statute fails to provide specific guidelines that would assist the jury in [weighing] aggravating and mitigating factors, thereby ensuring consistence, as well as a rational and fair application of the statute.” Appellant’s Brief at 74. He further claims the statute “allows complete and unbridled discretion on the part of the prosecutor in determining whether or not to apply the death penalty,” and “allows for different standards to be established by each of the prosecutors in the 67 different counties in the Commonwealth of Pennsylvania without the existence of any guidelines.” Id. at 74-75. This Court, however, rejected this same argument in Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986) (finding the death penalty statute constitutional and rejecting the argument that prosecutorial discretion in seeking the death penalty violates due process by allowing for arbitrary selection of its imposition). Thus, Appellant’s argument fails.
Appellant next argues that subsection (d)(1) of Section 9711, which provides for an aggravating circumstance where the victim is, inter alia, a state, local, or federal law enforcement official, is unconstitutional because it “arbitrarily and unfairly places a higher worth or value” on the lives of law enforcement and/or governmental authorities, thereby “violating notions of fundamental fairness and equal protection” in both the United States and Pennsylvania Constitutions, and violating the “fundamental notion in constitutional law that all men are created equal.” See Appellant’s Brief at 75 (Argument XVII). This Court repeatedly has upheld the aggravator set forth in Section 9711(d)(1) against the same constitutional challenge raised by Appellant. See Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996); Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062 (1995); Commonwealth v. Gibbs, 533 Pa. 539, 626 A.2d 133 (1993). Thus, Appellant’s argument on this issue, the totality of which is set forth above, also is without merit.
2. The 1988 Amendments
Several of Appellant’s challenges to Section 9711 specifically relate to the 1988 amendments. Prior to the 1988 amendments, this Court “had the authority to either affirm a sentence of death or remand the matter for imposition of a life imprisonment sentence.” Commonwealth v. Wharton, 542 Pa. 83, 88, 665 A.2d 458, 460 (1995) (citing 42 Pa.C.S.A. § 9711(h)(2)). The 1988 amendments to Section 9711, however, require that a new sentencing hearing be conducted whenever a sentence of death is vacated, except where it is vacated for disproportionality or lack of aggravating factors. 42 Pa. C.S.A. § 9711(h)(4).
Appellant argues, inter alia, that the 1988 amendments to Section 9711 violate his equal protection and due process rights because the amendments arbitrarily create a class of individuals who must face the death penalty instead of a life sentence, simply because those individuals did not obtain relief prior to 1988. See Appellant’s Brief at 41, 51 (Arguments VIII, XII). In support of his argument, Appellant avers that, had his direct appeal of his judgment of sentence been “correctly decided” by this Court prior to 1988, when Section 9711(h) required a remand for imposition of a sentence of life imprisonment in instances where this Court vacated a defendant’s sentence of death, he would not have been subjected to the possibility of a second death sentence under the amended version of Section 9711. Appellant’s Brief at 42. Thus, Appellant claims he is subjected to harsher punishment than individuals who had their death sentences vacated by this Court prior to 1988.
This Court, however, has repeatedly rejected the argument that “retroactive” application of Section 9711(h)(4) offends a defendant’s due process and equal protection rights, and we have held that application of Section 9711(h)(4) is constitutionally permissible. See Commonwealth v. Chambers, 546 Pa. 870, 381-82, 685 A.2d 96, 102 (1996) (holding that application of Section 9711(h) as amended did not deprive appellant of any constitutional right); Commonwealth v. Young, 536 Pa. 57, 66, 637 A.2d 1313, 1317 (1993) (rejecting appellant’s argument that retroactive application of Section 9711(h) “deprived him of the right to have his death sentence automatically modified to life imprisonment and the right not to face the possibility of a death sentence”). Accordingly, we reject Appellant’s due process and equal protection challenges to the 1988 amendments to Section 9711.
In a separate argument, Appellant also contends that application of the 1988 amendments to his case constitutes an ex post facto law. See Appellant’s Brief at 73 (Argument XV). In so arguing, Appellant merely states: “Defendant adopts as his argument on this issue Justice Cappy’s dissent in Commonwealth v. Young,” which he then proceeds to quote at length. Unfortunately for Appellant, the argument upon which he relies was the basis of the dissent in Young, and was not adopted by a majority of this Court, which concluded “Section 9711(h) as amended did not deprive appellant of any substantial right protected by the Ex Post Facto Clause.” Young, 536 Pa. at 67, 637 A.2d at 1318. Further, indeed, we have since reiterated that application of the 1988 amendments to Section 9711 does not violate the ex post facto clause. See Lesko, 553 Pa. at 239-40, 719 A.2d at 220. Thus, Appellant’s argument on this point is without merit.
Appellant further maintains there is “no statutory authority” under the Sentencing Code for a remand for a new sentencing hearing, as opposed to the automatic imposition of a sentence of life imprisonment, in his case. See Appellant’s Brief at 68 (Argument XIV). In making this argument, Appellant first emphasizes that it was not this Court, but rather the Court of Appeals for the Third Circuit in a civil habeas corpus proceeding, which vacated his death sentence. As a result, Appellant argues that his “appellate remedies in Pennsylvania terminated before the 1988 amendment was enacted,” and the new provisions of Section 9711(h)(4), which refer to determinations by “the Supreme Court,” see supra note 13, “can never come into effect in this case.” Appellant’s Brief at 70. Appellant further argues that, to the extent the 1988 amendments were intended to apply to “all criminal offenses committed on or after the effective date of this act and to all criminal cases and appeals pending on the effective date of this act,” the term “pending” should be interpreted to mean “pending on appeal before the Pennsylvania Supreme Court.” Id. at 70, 71. As his case was not pending before this Court at the time his death sentence was vacated, Appellant maintains that the 1988 amendment to Section 9711 is inapplicable to his case.
This Court, however, considered and rejected the same argument in Lesko, supra:
Appellant further asserts that the resentencing provision does not apply where a death sentence has been vacated by any court other than the Supreme Court of Pennsylvania. He relies on the following language in 42 Pa.C.S. § 9711(h)(4): “If the Supreme Court determines that the death penalty must be vacated for any other reason [i.e., reasons other than disproportionality or lack of evidence of aggravating circumstances], it shall remand for a new sentencing hearing pursuant to subsections (a) through (g).” Appellant reasons that because the statute does not specify what is to occur when courts other than this one vacate a sentence, the legislature must have intended that there would be no new sentencing hearing and that a remand for imposition of a life sentence would occur. Such an approach would lead, however, to a highly irrational sentencing scheme. Those whose sentences are vacated by this court would be in a far worse position than those whose sentences are vacated by other courts, since the former would be at risk of incurring another death sentence while the latter would not. The legislature cannot be deemed to have intended such an illogical result. See 1 Pa.C.S. § 1922(1) (presumption that the legislature did not intend a result that is absurd or unreasonable).
Further, appellant asserts that the resentencing provision is inapplicable to cases that were pending before any court other than the Supreme Court of Pennsylvania at the time of the 1988 amendment. Appellant notes that, because we completed appellate and post-conviction review of this matter in 1986, this case was not pending before us at the time of the 1988 amendment. The statute contains no language, however, that makes it applicable only to cases pending in a particular court. In fact, the legislature expressly designated that the amendment should be applied to “all criminal cases and appeals pending on the effective date of this act.” Act of 1988, Dec. 21, P.L. 1862, No. 179, § 3 (emphasis added). This plainly sets no limits as to the courts in which cases and appeals were pending.
553 Pa. at 240-41, 719 A.2d at 220 (emphasis and alterations original). Accordingly, we reject Appellant’s argument that, under the present version of Section 9711(h)(4), he may not be subjected to a new sentencing hearing.
C. Application of Commonwealth v. MacPhail
Appellant next contends that his prosecution for the murder of Officer Miller is barred under 18 Pa.C.S.A. § 110 and this Court’s holding in Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997). See Appellant’s Brief at 52 (Argument XIII). In McPhail, a plurality of this Court concluded that courts of common pleas enjoy jurisdiction all over the Commonwealth; in other words, the subject matter jurisdiction of the courts of common pleas is general and not limited to the territory of the county wherein the courts sit. We reasoned that, under 18 Pa.C.S.A. § 110, charges arising from crimes committed in different counties, but which constituted a single criminal episode, were in the jurisdiction of a single court. In the instant case, the trial court rejected Appellant’s claim, finding it was previously considered and rejected by the Superior Court in Commonwealth v. Travaglia, 723 A.2d at 195.
In Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 367 n. 13 (2011), Lesko similarly argued that prosecution for the murder of Officer Miller should have been barred under 18 Pa.C.S.A. § 110 and McPhail as a result of his guilty plea to the murder of William Nichols because the two murders were part of a single criminal episode. This Court explained that, notwithstanding Lesko’s attempt to frame an issue under McPhail as a resentencing claim, such a claim is a guilt-phase claim, and, as such, is subject to the time limitations of the PCRA. For the following reasons, Appellant’s McPhail claim must likewise be viewed as a guilt-phase claim, and, therefore, is subject to the time limitations of the PCRA.
Appellant’s judgment of sentence became final in 1984, after his petition for certiorari in the United States Supreme Court was denied. Appellant’s subsequent PCHA petition was denied in 1985; thus, Appellant did not qualify for the one-year tolling provision contained in the 1995 amendments to the PCRA. See Commonwealth v. Fahy, 558 Pa. 313, 321, 737 A.2d 214, 218 (1999) (where a judgment of sentence becomes final on or before the effective date of the amendments to the PCRA, a petition will be deemed timely if the petitioner’s first petition is filed within one year of the effective date of the amendments). Appellant therefore had until January 16, 1996, the date the 1995 amendments to the PCRA took effect, to file a second or subsequent PCRA petition raising claims from his 1981 guilt trial. Appellant did not raise the instant claim until 1997, when he filed his omnibus pre-trial motion with the trial court. Accordingly, as in Lesko, Appellant’s claim is time-barred under the PCRA.
D. Commonwealth’s Decision to Seek the Death Penalty
Appellant next alleges the Commonwealth should have been precluded from seeking the death penalty based on an alleged representation made by the District Attorney of Westmoreland County, Albert Nichols, during plea negotiations concerning additional pending cases against Appellant, wherein D.A. Nichols purportedly indicated that, in the event of a retrial for the murder of Officer Miller, he would not seek the death penalty. See Appellant’s Brief at 76 (Argument XVIII). The trial court, in rejecting this claim, noted that it had been raised and rejected by the Superior Court in Travaglia, 723 A.2d at 196.
Appellant presently avers that both he and his attorney, Westmoreland County Public Defender Dante Bertani, testified that the alleged promise by D.A. Nichols was a significant factor in Appellant’s decision to plead guilty to the Levato and Newcomer homicides, and he argues that this testimony “stands alone,” as the Commonwealth failed to call any witnesses, including D.A. Nichols, Assistant D.A. Timothy Geary, or the Honorable Donetta Ambrose, former Chief Judge of the United States District Court for the Western District of Pennsylvania, to contradict it. Appellant further maintains that “[mjerely because the agreement does not appear to be reflected on the record does not, in and of itself, mean that it did not take place or was not an inducement to [Appellant] to plead guilty.” Appellant’s Brief at 77.
As this Court explained in Commonwealth v. Spence, where a plea agreement has been entered of record and accepted by the trial court, the state is required to abide by the terms of the plea agreement. Prior to entry of the plea, however, a defendant has no right to specific performance of the agreement. 534 Pa. 233, 248, 627 A.2d 1176, 1184 (1993). The Superior Court, in addressing Appellant’s contention that, in exchange for Appellant’s guilty plea to the Levato and Newcomer homicides, D.A. Nichols agreed that he would not seek the death penalty in any retrial for the murder of Officer Miller, determined:
Contrary to Appellant’s contention, the plea colloquy indicates that the guilty pleas would not be used as aggravating circumstances should the Miller case be retried. There is no mention that the District Attorney represented that he would not seek the death penalty based on other aggravating circumstances, i.e., the police officer’s death. Therefore, Appellant’s claim is meritless.
Travaglia, 723 A.2d at 196.
Upon review of the transcript of Appellant’s guilty pleas, we find the Superior Court is correct in its determination that, based on the plea colloquy, D.A. Nichols agreed only that the Commonwealth would not introduce evidence of Appellant’s guilty pleas as aggravating circumstances to support imposition of the death penalty, not that the Commonwealth would not seek the death penalty in the event of a retrial in the Miller case. Indeed, as the Commonwealth argues, “[h]ad an agreement not to seek the death penalty existed, there would have been no need to have an agreement not to use the Newcomer and Levato homicides as aggravating circumstances in the event of a retrial.” Commonwealth’s Brief at 66. As the record does not support Appellant’s assertion that D.A. Nichols agreed not to seek the death penalty in any retrial, Appellant is not entitled to relief.
E. Statutory Review of Death Penalty Verdict
Finally, pursuant to the Sentencing Code, this Court is required to conduct a statutory review of the death sentence and we must affirm the sentence unless we determine that:
(i) the sentence of death was the product of passion, prejudice, or any other arbitrary factor; or
(ii) the evidence fails to support the finding of at least one aggravating circumstance ...
42 Pa.C.S.A. § 9711(h)(3). After careful review, we conclude that the sentence of death was not a product of passion, prejudice, or any other arbitrary factor; rather, it was based on the evidence presented at trial, namely, the deliberate shooting and killing of Officer Miller. Furthermore, the evidence supports the jury’s finding of at least one aggravating circumstance, namely, that the victim was a police officer killed in the performance of his duty, which the jury determined outweighed the two mitigating circumstances that Appellant had lived as a well-adjusted inmate in prison, and that he had changed his life and adopted a Christian lifestyle. Accordingly, we affirm the verdict and the judgment of sentence of death imposed upon Appellant by the Court of Common Pleas of Westmoreland County.
Former Justice GREENSPAN did not participate in the decision of this case.
Chief Justice CASTILLE and Justices EAKIN, BAER and McCAFFERY join the opinion.
Justice SAYLOR files a concurring opinion.
[OPINION BY Justice SAYLOR, type=concurrence]
Justice SAYLOR,
concurring.
I join Parts A-2, A-5 (subject to my comments on Part A-4), A-6, A-9, A-10, B, C, D, and E of the majority opinion, concur in the result relative to the balance, and offer the following comments organized according to the subject headings of the majority opinion.
A. Challenges to Evidentiary Rulings
1. Trial Court’s Exclusion of Kenneth Miller’s Testimony
I respectfully disagree with the majority’s conclusion that the trial court appropriately excluded a portion of prison supervisor Kenneth Miller’s testimony. See Majority Opinion, at 490-94, 28 A.3d at 873-75. Initially, the trial court sustained an objection to Mr. Miller’s testimony concerning Appellant’s ability to function in the general population as speculative. See N.T., at 779. Trial counsel responded by attempting to lay a further foundation. See id. The Commonwealth objected again on grounds of relevance, and the trial court explained:
Here’s the reason I’m sustaining [the objection]: The jury has to decide, they have to weigh aggravating and mitigating circumstances and they make their sentencing choice. Whatever the sentencing choice is, the Department of Corrections has to live with. So the adjustment of other inmates or what he thinks the adjustment might be I don’t think is relevant. And that’s the reason I’m sustaining the objection.
Id. at 780 (emphasis added).
As Appellant explains, the court was wrong in its relevance assessment. See Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986) (“[Evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.”). Moreover, in ruling the opinion was irrelevant, the court foreclosed trial counsel’s efforts to establish a further foundation for admissibility. Thus, while the majority’s finding that Mr. Miller testified as a fact witness and not an expert may be correct, see Majority Opinion, at 493-94, 28 A.3d at 875, it is questionable whether the responsibility for this should fall to Appellant, where his counsel was not permitted to establish a foundation for the opinion. Moreover, the majority does not discuss the role of lay opinions. See Pa.R.E. 701.
In my view, the trial courts should extend a degree of latitude to capital defendants in presenting this type of testimony. Accord Valle v. State, 502 So.2d 1225, 1226 (Fla.1987) (awarding a new sentencing hearing on the basis that a trial court had improperly excluded testimony of a clinical psychologist and two corrections consultants proffered in support of the defendant’s claim that, if given a life sentence, he would be a model prisoner); People v. Lucero, 44 Cal.3d 1006, 245 Cal.Rptr. 185, 750 P.2d 1342, 1355 (1988) (following Valle). I find the Valle court’s approach to be a rational extension of the principle, from Skipper, that “a defendant must be allowed to present all relevant mitigating evidence to the jury in his efforts to secure [a life sentence].” Valle, 502 So.2d at 1226. Of course, the Commonwealth should also be free to present contrary evidence which is fairly responsive. See Commonwealth v. Hughes, 581 Pa. 274, 332-34 & n. 40, 865 A.2d 761, 796-97 & n. 40 (2004).
While I therefore differ with the majority’s holding, I regard the trial court’s error as harmless, as the purport of Mr. Miller’s testimony (that he had known Appellant for ten years; Appellant had no misconducts; he was mature, polite and did his job well; he maintained the highest level of trust; and he got along well with other inmates, see N.T., at 767-769), suggested the opinion Appellant wished to adduce in any event. Moreover, Appellant was permitted to introduce a forensic psychiatrist’s opinion that he manifested a low potential for future aggression. See N.T., at 875. Notably, based on Appellant’s extensive mitigation case (including testimony from Appellant’s wife, his mother, school officials and teachers, numerous friends, neighbors, several clergypersons, a former attorney for Appellant, prison supervisors and guards, a corrections counselors, and a forensic psychiatrist), one or more jurors found that he had lived as a well-adjusted inmate since 1982, and that he had changed his life and adopted a Christian lifestyle. See N.T., at 1184-85. In the circumstances, and particularly given the strength of the Commonwealth’s case of aggravation, there does not seem to me to be a substantial likelihood of a different outcome had Mr. Miller been permitted — as I believe he should have — to offer an additional opinion concerning Appellant’s amenability to being introduced into the general inmate population.
3. Superior Court’s Ruling that Evidence of Positive Prison Adjustment is Rebuttable
The majority holds that the Commonwealth may present evidence of a defendant’s prior bad acts to rebut claims of rehabilitation, reform, and an associated lack of future dangerousness. See Majority Opinion, at 498-99, 28 A.3d at 878-79. One substantial obstacle to a reasoned application of such holding is that it is in conceptual tension with this Court’s position, for many years, that evidence of prior bad acts is not indicative of future dangerousness. See Commonwealth v. Chmiel, 585 Pa. 547, 611, 889 A.2d 501, 539 (2005) (“This Court has recognized consistently that evidence regarding a defendant’s past violent convictions or conduct does not implicate the issue of his or her future dangerousness.”). This analysis was developed in the context of the requirement for a life-means-life instruction under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), and there is some uncertainty in its application to matters tried after the United States Supreme Court’s decision in Kelly v. South Carolina, 534 U.S. 246, 253, 122 S.Ct. 726, 731, 151 L.Ed.2d 670 (2002) (explaining, in the context of Simmons, that “[a] jury hearing evidence of defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior[.]”). See, e.g., Commonwealth v. Spotz, 610 Pa. 17, 42-43, 18 A.3d 244, 302-03 (2011) (taking a narrow approach to Kelly’s application).
However Kelly is to be interpreted going forward, the underlying difficulty remains that the Court must enforce a narrowing approach to the death penalty statute to conform with the federal constitutional mandates of reasonable justification for the imposition of a more severe sentence on the defendant as compared to others convicted of murder, see Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983), and the opportunity for the capital defendant to adduce all relevant mitigating evidence, see Skipper, 476 U.S. at 4, 106 S.Ct. at 1671. In a number of respects, however, including the above, the appearance is that this Court is not enforcing such a narrowing construction. Cf. Commonwealth v. Houser, 610 Pa. 264, 279-82, 18 A.3d 1128, 1138-39 (2011) (Saylor, J., concurring and dissenting) (commenting on a judicial narrowing of a statutory mitigating circumstance in tension with the express statutory prescription).
I would permit a defendant to offer mitigation evidence of rehabilitation, reform, and prospects for a non-violent future as a prisoner without pain of lifting the general bar against such pre-incarceration other-bad-acts evidence as would be otherwise inadmissible. I offer my reasoning in this regard, also, as my response to Part A-7 of the Majority Opinion.
4. Evidence of Appellant’s Guilty Plea to the Nichols Homicide
As the majority indicates, the federal district court directed that Appellant be discharged from custody, unless the common pleas court held a resentencing hearing “at which evidence of his Indiana County guilty plea [in the matter of the killing of William Nichols] is excluded.” Majority Opinion, at 499-500, 28 A.3d at 879 (citation omitted). As the majority further explains, “the federal court order does not, on its face, link the preclusion of evidence of Appellant’s guilty plea to the Nichols homicide to an attempt by the Commonwealth to establish aggravating factors[.]” Majority Opinion, at 501-02, 28 A.3d at 880.
Thus, it is very troublesome to me that, in a 30-year-old capital litigation on resentencing per a federal court order, the Commonwealth would attempt (successfully) to do what the federal order said it could not, thus placing any ensuing death verdict at substantial risk on further federal review. The Commonwealth’s case for death encompassed compelling aggravation without the need to bring the compliance with the federal mandate into question.
The Commonwealth’s desire to impose capital punishment on Appellant for the heinous killing spree in which he participated (and, indeed, appears from the record to have led) is quite understandable. It also must be appreciated, however, that there are substantial downsides to a no-stones-unturned approach to death-penalty prosecution, for example, in terms of risk, delay, and uncertainty. It is my considered perspective that the Commonwealth should take a more conservative approach in these cases to minimize such factors in the multiple layers of close scrutiny ensuing upon issuance of a death verdict. With respect to the present case, I reiterate that a very strong case for death was put forth without recourse to the guilty plea and/or conviction pertaining to the killing of Mr. Nichols.
My vote to join in the result relative to this claim derives from the fact that there is at least some degree of ambiguity as to the intent of the federal order, given the federal magistrate’s footnoted pronouncement relied upon by the majority, see Majority Opinion, at 501-02, 28 A.3d at 880, and the analysis of the federal mandate is peculiarly a federal concern, particularly since the matter previously was exhausted in the Pennsylvania state court system.
8. Failure to Exclude Evidence of the Convenience Store Robbery
Finally, I question the bright-line rule the majority derives from Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995), which appears to suggest that the Court will not consider the admissibility and/or prejudicial character of Commonwealth evidence offered in connection with an aggravating circumstance, so long as the aggravator is not found by the jury. See Majority Opinion, at 511-13, 28 A.3d at 880-81. I am unable to reconcile such a categorical approach with the federal constitutional standard for harmless error pertaining on direct review, which appears to me to be circumstance specific. See Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978). In this regard, I believe it to be the Commonwealth’s burden to establish, beyond a reasonable doubt, that the error did not contribute to the overall verdict (not just to the finding, or not, of an aggravator). See, e.g.,
Commonwealth v. Howard, 538 Pa. 86, 99-100, 645 A.2d 1300, 1307 (1994). Given the possibility that a prejudicial taint may impact sentencing proceedings more broadly than on the specific point for which the evidence is offered, a more searching review is required upon the discernment of a preserved trial-court error. I therefore join the majority on this point only upon my conclusion that the victim-impact evidence relative to the robbery was very modest in the context of the overall presentations of aggravation and mitigation, and therefore, the possibility of an effect on the outcome is insubstantial.
Appellant admitted that, in January 1980, he, Lesko, and R. kidnapped William Nichols and stole Nichols' vehicle. While in the vehicle, Nichols was beaten and shot in the arm by Appellant. When Nichols lost consciousness, he was gagged with a scarf and taken to a lake, where his hands and feet were bound. Appellant and Lesko then rolled Nichols into the water, where he died. Appellant also admitted that, in late December 1979, he and Lesko kidnapped Peter Levato and stole his vehicle. Appellant and Lesko drove Levato to a remote area, where they threw him from a bridge. When Levato did not die as a result of the fall, Appellant and Lesko searched for him and fatally shot him. Finally, Appellant admitted that, after he and Lesko were picked up by a vehicle driven by Marlene Newcomer on January 1, 1980, they used Newcomer’s vehicle to commit a robbery, and then shot Newcomer and left her body in her vehicle in a parking garage.
The PCHA was repealed in part, modified in part, and renamed the Post Conviction Relief Act ("PCRA”), effective April 13, 1988.
Pursuant to Section 9711(e)(8), mitigating circumstances shall include "[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” 42 Pa.C.S.A. § 9711(e)(8).
Appellant’s brief to this Court is actually titled “Brief in Support of Post-Trial Motions”; however, we will refer to it as "Appellant's Brief.”
Our decision in Commonwealth v. Lesko involved this Court’s review and affirmance of John Lesko's 1995 death sentence, which was imposed after Lesko’s original death sentence was vacated by the United States Court of Appeals for the Third Circuit in Lesko v. Lehman, supra.
Although Appellant concedes he raised this issue in his petition for allowance of appeal from the Superior Court’s decision, and this Court denied Appellant’s petition, see Commonwealth v. Travaglia, 572 Pa. 733, 815 A.2d 633 (2002) (table), we have explained that "a decision declining to review the decision of an intermediate appellate court cannot be equated with a decision on the merits.” Commonwealth v. Boczkowski, 577 Pa. 421, 441, n. 16, 846 A.2d 75, 86 n. 16 (2004) (rejecting contention that law of the case doctrine barred review of post-sentence claim which had been reviewed by the Superior Court on pre-trial interlocutory appeal). As this Court is obliged to consider the merits of properly preserved and presented claims in cases arising on our capital appeal docket, as opposed to those in which we have granted discretionary review, our prior denial of Appellant’s petition for allowance of appeal neither precludes, nor obviates the necessity of, this Court's present review of the merits of Appellant’s claim. See id.
Although Appellant does not specifically identify this evidence of "positive prison adjustment,” we presume he is referring, at least in part, to the testimony of Kenneth Miller, discussed supra.
The appellant testified that “Kuda” was short for barracuda, and was a nickname that he had received as a teenager. The prosecutor averred the appellant had the term tattooed on his arm because a barracuda was a "predatory fish” and a "nasty evil fish.”
It appears the trial court is referring to the Report and Recommendation by Magistrate Judge Robert C. Mitchell, which was adopted by Judge Bloch as the opinion in support of his November 7, 1996 order.
Specifically, the Commonwealth cites Travaglia, 723 A.2d 190; Lesko, 719 A.2d 217; Lesko v. Lehman, supra; and Lesko v. Owens, 881 F.2d 44 (3d Cir.1989). See Commonwealth’s Brief at 47-48.
As noted above, once Appellant introduced evidence of his good character in support of mitigating circumstances, the prosecution was entitled to introduce evidence of other homicides to rebut such character evidence.
Pursuant to 42 Pa.C.S.A. § 9711(d)(9), evidence that a defendant "has a significant history of felony convictions involving the use or threat of violence to the person” may be offered as an aggravating factor during sentencing.
Section 9711 (h)(4) presently provides: If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances are supported by sufficient evidence, then it shall remand for the imposition of a life imprisonment sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing pursuant to subsections (a) through (g). 42 Pa.C.S.A. § 9711(h)(4).
Although Appellant claims in his Statement of Questions that the imposition of a new sentencing hearing violates his 5th, 8th, and 14th Amendment rights under the United States Constitution and Art. 1, § 9 of the Pennsylvania Constitution, in the argument section of his brief, he fails to cite any of the Amendments, or precisely explain how imposition of a new sentencing hearing violates the Amendments. Furthermore, he does not discuss Art. 1, § 9 of the Pennsylvania Constitution.
McPhail was decided by a six-justice court. The Opinion Announcing the Judgment of the Court was authored by then Justice Flaherty and joined by Justice Zappala. Justice Cappy authored a concurring opinion joining the opinion of Justice Flaherty. Justice Nigro concurred in the result reached by the opinion of Justice Flaherty. Justice Newman filed a dissenting opinion that was joined by Justice Castille.
In this consolidated cross-appeal, the Commonwealth challenged the PCRA court’s award of a new trial and penalty hearing; Lesko challenged portions of the PCRA court’s ruling that denied certain claims for relief. This Court reversed the PCRA court’s order granting a new trial and penalty hearing, and dismissed Lesko’s petition for relief.
The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor in accordance with 42 Pa.C.S.A. § 971 l(i).
In this regard, I would note only that the Commonwealth is restricted to the character trait placed at issue by the defense. See id.
Significantly, the Commonwealth was appropriately permitted to introduce rebuttal evidence concerning Appellant’s misconduct in prison. See, e.g., N.T., at 1027-28.
The counter-position, of course, is that the arrangement to defer sentencing encompassed a preclusion of any use of the conviction pertaining to the Nichols homicide, since, under the agreement, the Indiana County conviction simply would not come into being until after the Westmoreland County trial. There is as much (and more) language in the federal magistrate’s report and recommendation supporting such a broader perspective regarding the preclusion as there is to bolster the majority’s narrowing construction. See, e.g., Report and Recommendation, Travaglia v. Morgan, Civ. No. 90-1469, slip op. at 14 (W.D.Pa. Oct. 7, 1996) (indicating that various of Appellant's attorneys testified to their belief in "assurances ... that the plea could not be used against [Appellant] in Westmoreland County”); id. at 15 (referencing testimony to the effect that sentencing was repeatedly postponed in Indiana County at the request of the assistant district attorney "to insure that the plea could not be introduced during the Westmoreland County trial”); id. (crediting such testimony as establishing that “all the parties involved in [Appellant's] case ... believed that the plea petitioner entered in Indiana could not be used in the Westmoreland County trial”). As the majority otherwise recognizes, the actual federal order is consistent with the broader approach.