Lewis M. Jordan, a/k/a John Lewis ("Appellant"), pled guilty to murder generally in the shooting death of Philadelphia Police Officer Charles Cassidy. Following a trial by jury to determine degree of guilt, Appellant was convicted of first-degree murder and sentenced to death. In this direct appeal, Appellant raises four issues. Concluding that Appellant is entitled to no relief on any of these issues and that the evidence was sufficient to sustain Appellant's conviction, we affirm the judgment of sentence.
The relevant facts of this case are as follows. During a period of approximately six weeks in the fall of 2007, Appellant committed six armed robberies of retail food shops in North Philadelphia. Specifically, on September 18, 2007; September 21, 2007; and October 13, 2007, respectively, Appellant robbed three different Dunkin' Donuts shops at gunpoint. On October 20, 2007, and October 25, 2007, respectively, he robbed two pizza shops at gunpoint. Finally, at approximately 10:30 a.m. on October 31, 2007, Appellant returned to the Dunkin' Donuts shop that was the site of his first robbery, and again demanded money from the employees at gunpoint. While this final robbery was in progress, Officer Charles Cassidy, who was dressed in his police uniform, parked his car in front of the shop and opened its front door. As the officer was about to enter the shop, Appellant turned toward the officer, took two steps in his direction, pointed a gun at him, and shot him in the forehead at close range. Appellant immediately fled from the scene, stopping to bend over to take the fallen officer's service revolver. On November 3, 2007, Appellant traveled by bus to Miami, where he was arrested a few days later and then brought back to Philadelphia.
A two-day penalty phase hearing began on November 20, 2009. Officer Cassidy's adult children and his widow expressed, via letters written to the court, the effects of Officer Cassidy's death on the family. Appellant presented the testimony of his mother, grandmother, and sister. The jury found three aggravating circumstances, to wit, killing of a peace officer in the performance of his duties, 42 Pa.C.S. § 9711(d)(1); killing committed during the perpetration of a felony, § 9711(d)(6); and significant history of violent felony convictions, § 9711(d)(9), and one mitigating circumstance, to wit, any other evidence of mitigation, the "catch-all" mitigator, § 9711(e)(8). The jury also found that the aggravating circumstances outweighed the mitigating circumstances, and accordingly determined that Appellant should be sentenced to death.
On direct appeal before this Court, Appellant raises four issues, three alleging trial court error and one alleging prosecutorial misconduct.
Sufficiency of the Evidence
Before addressing the four issues raised by Appellant, we must review the legal sufficiency of the evidence to support his first-degree murder conviction, as we do in all cases in which a sentence of death has been imposed. See, e.g., Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 306 (2011). In this sufficiency review, we determine whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of first-degree murder beyond a reasonable doubt. Id.
There are three elements of first-degree murder: (i) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S. § 2502(a); Commonwealth v. Houser, 610 Pa. 264, 18 A.3d 1128, 1133 (2011). As set forth in the third element, first-degree murder is an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a) and (d). "Premeditation and deliberation exist whenever the assailant possesses the conscious purpose to bring about death." Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 910 (2002). The law does not require a lengthy period of premeditation; indeed, the design to kill can be formulated in a fraction of a second. Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1220 (2009); Drumheller, supra; Commonwealth v. Earnest, 342 Pa. 544, 21 A.2d 38, 40 (1941) ("Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate and premeditated."). Specific intent to kill as well as malice can be inferred from the use of a deadly weapon upon a vital part of the victim's body. Houser, supra at 1133-34; Briggs, supra at 306-07; Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 130-31 (2008). Whether the accused had formed the specific intent to kill is a question of fact to be determined by the jury. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911, 916 (1963).
Based on our review of the certified record in the case before us, we conclude that the evidence was sufficient to support Appellant's first-degree murder conviction. One of the medical examiners who participated in the autopsy of Officer Cassidy's body testified that the officer had sustained a single gunshot wound to the head, with the bullet entering above his right eyebrow and lodging in the back of his brain. N.T. Trial, 11/18/09, at 130-31. The medical examiner concluded that a deadly weapon had been used on a vital part of Officer Cassidy's body, resulting in his death. Id. at 134-35.
The evidence that Appellant was responsible for the killing was overwhelming. Three eyewitnesses (two employees and one customer) identified Appellant as the assailant. Id., 11/16/09, at 66-67, 76-79, 121-23; Id., 11/17/09, at 4-5. The two employees recognized Appellant when he entered the Dunkin' Donuts on October 31, 2007, as the man who had robbed them approximately six weeks before. Id., 11/16/09, at 77-78, 123-24, 129-30. One of Appellant's cousins and a family friend each testified that Appellant had admitted to them that he had killed the officer. Id., 11/17/09, at 32, 68-69. The murder weapon and Officer Cassidy's service revolver were found in a trash bag in the drop ceiling of the home of one of Appellant's relatives, and Appellant's DNA was detected on both firearms. Id., 11/17/09, at 131-35, 143; Id., 11/18/09, at 102-04, 118-19.
The above-summarized evidence is sufficient to establish all three elements of first-degree murder, i.e., that Appellant had formulated the specific intent to kill Officer Cassidy and had fatally acted on that intent. We turn now to the issues raised by Appellant.
Evidence of prior robberies
In his first issue, Appellant asserts that the trial court erred by admitting evidence of the five previous robberies to which Appellant had pled guilty in front of the jury at the beginning of his trial. Appellant argues that the evidence was not merely irrelevant, but also "inflammatory and otherwise unduly prejudicial." Appellant's Brief at 13. In response, the Commonwealth argues that evidence of Appellant's prior robberies was relevant to show Appellant's intent, to disprove mistake or accident, to demonstrate common scheme, plan or design, and to show the history and factual development of the case. Commonwealth's Brief at 14-15 (citing Pa. R.E. 404(b)(2)). The Commonwealth emphasizes that the evidence concerning Appellant's prior robberies established that, over the course of Appellant's crime spree, he became increasingly angry, more threatening, more violent, and more inclined to use force. Id. at 14-15.
The trial court held that the evidence of Appellant's prior robberies was properly admitted to prove Appellant's intent and absence of mistake or accident. Trial Court Opinion, dated 4/28/10, at 5-7 (citing Pa.R.E. 404(b)). In agreement with the Commonwealth, the trial court found that the evidence of Appellant's five prior robberies established his increasingly violent and aggressive conduct. Id. at 7. The trial court also found that the probative value of the evidence outweighed its potential for prejudice, particularly since the evidence "was not sensational or inflammatory and was introduced without theatrics." Id. at 8. Finally, the trial court determined that, even if it had been error to admit evidence of the prior robberies, the error was harmless because the Commonwealth's other evidence overwhelmingly supported Appellant's conviction of first-degree murder. Id.
In general, relevant evidence, i.e., evidence that "logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable[,] or supports a reasonable inference or presumption regarding a material fact," is admissible. Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (2006). However, relevant evidence may be excluded
Under our rules of evidence, evidence of an accused's other crimes is not admissible to show an accused's bad character or criminal propensity, but it may be admissible for some other legitimate purpose, as set forth in Pennsylvania Rule of Evidence 404(b).
Pa.R.E. 404(b); see also Flor, supra; Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550 (2002).
In Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1069-70 (1995), a capital murder case, we upheld the trial court's admission into evidence of the appellant's statement that, prior to shooting and killing a police officer, he had armed himself in order to rob drug dealers. The appellant had confessed to killing the officer, and thus the only issue at trial was degree of guilt. Id. at 1070. In arguing against a first-degree murder verdict, defense counsel asserted that the appellant had not had the requisite specific intent to kill the officer, but rather had acted out of fear after the officer had chased the appellant and had drawn his firearm. Id. at 1066, 1070. This Court held that the trial court did not abuse its discretion in admitting the appellant's statement about arming himself, reasoning as follows: "where [the appellant] aggressively advanced a claim of reduced intent, evidence that he armed himself in order to rob drug dealers was sufficiently intertwined with the contention of fear underlying the claim of reduced intent so as to render it relevant to the ultimate question before the jury" — to wit, whether the appellant intended to kill the officer and thus was guilty of first-degree murder. Id. at 1070.
Likewise, in the case before us, where Appellant admitted the murder and his defense was lack of specific intent to kill, the evidence regarding the five prior robberies was sufficiently intertwined with Appellant's claim that he had experienced a "panicky reaction" so as to render it relevant to the ultimate question of whether Appellant had possessed the specific intent to kill when he shot Officer Cassidy. The evidence established that Appellant had committed all of his robberies over a relatively short time period, approximately six weeks, within a fairly small area of Philadelphia. N.T. Trial, 11/12/07, at 69-71; Id., 11/13/07, at 3-6. In addition, the evidence established that, as Appellant's robbery spree progressed, his demeanor became increasingly belligerent and aggressive and he employed greater violence.
Testimony of eyewitnesses to the four middle robberies also referenced Appellant's increasingly violent conduct. An employee eyewitness to the second robbery testified that, after Appellant had entered the Dunkin' Donuts shop, he had waved his gun, jumped over the counter, demanded money, took the money, put it in his pockets, and walked away. Id., 11/12/ 07, at 90-94. This eyewitness also testified that Appellant had pointed the gun at him but had not verbally threatened him. Id. at 97. Two employee eyewitnesses to the third robbery, of yet another Dunkin' Donuts shop, on October 13, 2007, testified that Appellant had walked to the cash register, pulled out and started waving a gun, and repeated "give me the fuckin' money" in a loud and aggressive voice and with an angry manner. Id. at 119-20, 140-42. When the shop supervisor had run toward the bathroom, Appellant had run after her and pushed her toward another employee. Id. at 121, 133-34, 143. Appellant had pointed his gun at the employees, although he had not threatened to shoot them. Id. at 137-38.
Two eyewitnesses, an employee and a regular customer, testified with regard to the fourth robbery, this time of a pizza shop, on October 20, 2007. Both eyewitnesses testified that Appellant had walked to the counter of the pizza shop and told the employees to "give me the fuckin' money." N.T. Trial, 11/13/07, at 11, 29. The employee testified that when Appellant had first asked for the money, she thought he was joking because she recognized him as a regular customer, in fact, one to whom she had previously spoken regarding his new tattoo. Id. at 25-27, 29. The customer testified that Appellant had pointed the gun at him twice and told him to hang up his cell phone, and also that he saw Appellant put his gun in the cook's face. Id. at 11-13. The customer also testified that he was fearful, especially for the safety of his nine-year-old son who was with him. Id. at 12-13. The customer described Appellant's demeanor as "calm" at first, but then "irritated" when he thought the employee was taking too long to get the money. Id. at 15. The employee testified that Appellant had appeared "angry, maybe frustrated." Id. at 30.
Several employees testified with regard to the penultimate robbery on October 25, 2007, six days before the murder of Officer Cassidy. The pizza shop cashier testified that Appellant purchased some small items, then took his gun out and, while moving it and pointing it at her, said "forget this shit, give me all the money you have." Id. at 41-43. As related by the cashier, Appellant "was angry. You could tell by his face, he was angry." Id. at 46. While the cashier was giving him the money from the cash register and her pocket,
The cashier's teenage son, whom Appellant had forced from the pizza shop's office at gunpoint, was also a witness. He testified that Appellant pulled his mother by the hair into the office and then back out of the office, causing her to be "crying and scared." Id. at 53. He further testified that, during the encounter, Appellant was "mad" and acted as follows: "[Appellant] said you better give me something or something is going to go on and that is when he looked at the door in the front and he just said ["]don't anybody try to do nothing or I will kill you["] and he shot [a bullet] to the ground toward like the bathroom area. It bounced off the ground toward the wall and he walked out, that's it." Id. at 64; see id. at 59.
The third witness to this robbery, a cook employed by the shop, testified that Appellant grabbed him by his back, held a gun against the center of his forehead, and told him not to look at Appellant's face. Id. at 75-77. This witness further testified that Appellant's tone of voice was "aggressive" and that he and Appellant were two feet apart when Appellant fired a bullet into the floor. Id. at 80-81.
Thus, the Commonwealth presented evidence, as summarized above, of Appellant's actions, his statements, and his demeanor during the commission of each of the six robberies. It is inarguable that evidence of Appellant's actions, statements, and demeanor during the last robbery was relevant to his state of mind when he shot Officer Cassidy, only seconds after the officer interrupted that robbery in progress. Likewise, evidence of Appellant's actions, statements, and demeanor during the five similar robberies that preceded the robbery/murder was relevant to show the increasing extent to which Appellant intentionally employed violence against those individuals who happened to stand between him and his felonious ends. The evidence was not proffered to show Appellant's bad character or criminal propensity. It was proffered to show that Appellant had threatened, verbally and with a firearm, the employees of the shops that he had targeted during his crime spree, expressly threatening to kill them if they did not follow his instructions. It was proffered to show that Appellant had deliberately discharged his firearm within a few feet of the frightened employees during
In Appellant's second issue, he claims that the trial court should not have permitted the Commonwealth to show the Dunkin' Donuts surveillance videotape, which captured the robbery and murder, in slow motion because it created a false impression of how much time elapsed between Officer Cassidy's appearance at the door and his murder. In Appellant's view, the slow-motion videotape made the relevant time period appear longer than it actually was, and thereby "create[d] a false impression of premeditation," improperly enhancing the likelihood that the jury would conclude that Appellant had acted with deliberation, premeditation, and specific intent. Appellant's Brief at 22. In response, the Commonwealth maintains that it showed the videotape in slow motion so that the jury could observe Appellant's precise actions just prior to and after the murder, particularly because Appellant disputes the Commonwealth's interpretation of those actions. Commonwealth's Brief at 21. More specifically, in the Commonwealth's view, the slow-motion videotape refuted defense counsel's argument that Appellant killed Officer Cassidy in a spontaneous, essentially reflexive "panicky reaction." Id. at 22. The Commonwealth also notes that the jury viewed the videotape both in real time and in slow motion, and asserts that the jury was well aware that the murder took place within approximately two seconds after Appellant saw Officer Cassidy at the door of the Dunkin' Donuts shop. Id. at 22-23, 26.
The trial court explained its decision to allow the jury to view the slowed-down videotape as follows.
Trial Court Opinion at 13.
We adopt the following standard set forth by the Superior Court.
Commonwealth v. Hindi, 429 Pa.Super. 169, 631 A.2d 1341, 1345 (1993).
Like other evidentiary rulings, the admissibility of a slow-motion videotape rests within the sound discretion of the trial court, and we will not reverse absent an abuse of discretion. Id. at 1344. In Hindi, supra, the Superior Court upheld the trial court's denial of the defendant/appellant's motion to show a slow-motion videotape of the confrontation that had led to his arrest. The defendant/appellant sought to prove, inter alia, that he had been hit by a car involved in the confrontation, a contention that the driver of the car disputed at trial. Id. at 1343-45. Although the trial court had not allowed the jury to view a slow-motion version of the videotape, the court had admitted the videotape in real time, as well as enlarged still photographs of the moment when the car contacted the defendant/appellant's body. Id. at 1343, 1346. The Superior Court held that the trial court had not abused its discretion with these rulings; however, the Superior Court was careful to note that the still photographs were taken from the same videotape frames as the defendant/appellant sought to show in slow motion. Id. at 1346. Had the trial court not allowed any evidence that the car had actually struck the defendant/appellant — no slow-motion videotape, no freeze-frame videotape, no still photographs taken from the videotape — then the Superior Court would have held that the trial court abused its discretion, resulting in reversible error. Id. at 1345-46. Finally, the Superior Court set forth several strategies to alleviate any concern as to confusion or prejudice of the jury by the admission of a slow-motion videotape, including giving a cautionary instruction to explain the purpose(s) of the slow-motion videotape, showing the videotape at regular speed as well as in slow motion, and allowing the opposing party to comment freely on any possible distortion related to the slow-motion view. Id. at 1345.
The admissibility of slow-motion videotapes has also been addressed by appellate courts of other jurisdictions. For example, in State v. Brewington, 343 N.C. 448, 471 S.E.2d 398, 403 (1996), the issue was the admissibility, at the appellant's trial for robbery and first-degree murder, of a slow-motion version of a pawn shop surveillance videotape. The trial court had admitted the slow-motion videotape, determining that it was probative as to whether the appellant was guilty of premeditated murder, felony murder, or a lesser offense. The North Carolina Supreme Court upheld the trial court, concluding that the
Here, we hold that the trial court did not abuse its discretion in admitting the slow-motion version of the surveillance videotape that captured Officer Cassidy's murder. At trial, the videotape was played for the jury several times, in real time and in slow motion. The time, down to the second, at which the camera took the images, appeared as a digital display on the videotape, a fact that the Commonwealth pointed out several times to the jury. N.T. Trial, 11/16/09, at 100-03. The Commonwealth first played the videotape at regular speed, with frequent stops for an eyewitness to testify as to the images caught on the tape. Id. at 94-108. The Commonwealth's questioning of the witness in conjunction with the showing of the videotape established the following: at 10:30:29, Officer Cassidy was at the door of the shop and Appellant glanced over his shoulder in the officer's direction; at 10:30:31, Appellant pointed his gun at Officer Cassidy, after having taken a few steps in his direction; and the officer then fell to the ground. Id. at 100-01, 107. At this point in the questioning of the witness, the Commonwealth played the videotape in slow motion without interruption. Id. at 112-13. Later on the same day, the Commonwealth replayed the videotape in real time during the testimony of another eyewitness. Id. at 130-32. During closing argument, the Commonwealth again played the videotape in slow motion, but first emphasized that the crucial portion, i.e., from the time that Appellant noticed Officer Cassidy at the Dunkin' Donuts door until the officer's murder, encompassed only two seconds. Id., 11/19/09, at 88-89. The Commonwealth focused on Appellant's actions during those two seconds and then argued that his actions were incompatible with his claim of a spontaneous, reflexive "panicky reaction." Id. at 89-91. Specifically, the Commonwealth argued as follows: "As [defense counsel] said, it is two seconds but it was a sufficient time for [Appellant] to see, to react and that is not an involuntary reaction.... It is an intentional, purposeful act in his case.... It can be a fraction of a second. It was more than that in this case." Id. at 90-91. During jury deliberations, the court granted the jury's request to see the surveillance videotape again, both in real time and in slow motion. Id. at 163-67.
The trial court did not abuse its discretion when it permitted the jury to view the slow-motion version of the surveillance videotape. The jury knew that there were two versions of the videotape, one of which was in slow motion. The time that transpired was displayed on the tape and was repeatedly pointed out to the jury. Thus, the jury was well aware that Appellant shot Officer Cassidy within two seconds of
Victim Impact Testimony
In his third issue, Appellant claims that the trial court erred by admitting the testimony of Officer Cassidy's widow into evidence during the guilt phase of trial because it was inadmissible victim impact evidence.
Immediately after Mrs. Cassidy's testimony, defense counsel moved for a mistrial, arguing that her testimony "amounted to a rather detailed victim impact statement," which was irrelevant to whether Appellant had committed first-or second-degree murder, the only question before the jury. N.T. Trial, 11/18/09, at 148-49. The trial court rejected Appellant's argument, characterizing Mrs. Cassidy's testimony not as victim impact testimony, but rather as life-in-being testimony, albeit "a more extensive testimony concerning life and being." Id. at 150. Accordingly, the trial court denied Appellant's motion for a mistrial.
Prior to amendment of the Pennsylvania Sentencing Code in 1995, victim impact evidence was not admissible at any stage of a capital trial. See Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 40 n. 28 (2008). On October 11, 1995, the General Assembly amended the Sentencing Code to permit the admission of victim impact evidence during the penalty phase of a capital trial. See 42 Pa.C.S. § 9711(a)(2) ("In the sentencing hearing, evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible.");
For example, in Commonwealth v. Singley, 582 Pa. 5, 868 A.2d 403, 415 (2005), we upheld the trial court's admission, during the penalty phase, of victim impact testimony from the father and the fiancée of a murder victim. Specifically, the victim's father testified that the death of his son, who was childless, had prevented continuation of the family name. Id. at 414. The victim's fiancée testified regarding her personal involvement in an award ceremony sponsored by the victim's employer in memory of the victim, and regarding the effect of the murder on her teenage son, on her relationship with her son, and on her own anger-management issues. Id. at 415. This Court concluded that the witnesses' respective statements were "an individualized and subjective commentary on the consequences" of the murder, and thus
In contrast to victim impact testimony, life-in-being testimony is admissible during the guilt phase of a murder trial. Life-in-being testimony is proffered to show that the victim was alive at a time prior to the murder, and thus it is relevant to the first element of murder, i.e., that a human being was unlawfully killed. See, e.g., Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 237 (2006) (upholding as proper life-in-being testimony the testimony of the victim's mother that the victim was alive and well prior to the date of his murder and that she identified his dead body at the medical examiner's office); Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 (2000) (concluding that testimony as to the ages and physical characteristics of two victims, their clothing at the time of disappearance, and the last sightings of the victims "demonstrated that each victim was a life in being and was elicited for the purpose of placing the disappearances of the victims in the proper time frame and identifying them by clothing and appearance.").
This Court has made clear, however, that the manner of presenting life-in-being evidence is subject to some restraints. In Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710, 716 (1994), we concluded that the admission of a photograph of the victim, taken prior to her death, as life-in-being evidence was erroneous. We reasoned that the existence of the victim as a life-in-being had already been established by the testimony of two witnesses that the victim was alive on the day before her body was discovered and by the coroner's testimony that her death resulted from beating and stab wounds. We concluded that the photograph was proffered solely to engender sympathy for the victim, and was irrelevant to the central issue at trial, i.e., the guilt or innocence of the defendant. Although we concluded that admission of the photograph was improper and irrelevant, we further held that the error was harmless given the overwhelming evidence of the defendant-appellant's guilt. Id.
Turning to the case before us, we hold that Mrs. Cassidy's testimony went beyond that which was admissible to establish life-in-being, and it assumed the character of victim impact evidence, which is inadmissible during the guilt phase of trial. Accordingly, the trial court erred by admitting the testimony during the degree-of-guilt phase of Appellant's trial.
Although we conclude that Mrs. Cassidy's testimony was inadmissible at the point in the proceedings at which it was admitted, we decline to hold that Appellant is entitled to relief because any error was harmless. "An error is harmless when the Commonwealth can establish that the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error so insignificant by comparison that the error could not have contributed to the verdict." Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1062-63 (2001). The evidence that Appellant acted with willful, deliberate, and premeditated intent and with malice to kill Officer Cassidy was overwhelming. Because the murder was caught on the surveillance videotape, the jury actually saw Appellant turn and step toward Officer Cassidy as the officer entered
Furthermore the trial court clearly instructed the jury that it must not decide the case based on sympathy for Officer Cassidy or his family. The court's instruction at the beginning of the trial, before any testimony had been presented, was as follows:
N.T. Trial, 11/12/09, at 17-18.
The trial court reiterated this instruction at the close of the testimony. Mrs. Cassidy was the final Commonwealth witness, and the defense did not present any witnesses, so the trial court delivered the following instruction the day after Mrs. Cassidy's testimony.
Id., 11/19/09, at 125-26.
We presume that the jury follows the court's instructions. Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 296 (2011); Commonwealth v. Williams, 578 Pa. 504, 854 A.2d 440, 447 (2004).
Given the overwhelming and graphic evidence of Appellant's specific intent to kill Officer Cassidy and the trial court's clear and repeated instructions to the jury to decide the case objectively based on the evidence, we conclude that the error in the admission of Mrs. Cassidy's testimony was harmless beyond a reasonable doubt. Accordingly, Appellant is entitled to no relief on his third issue.
In Appellant's fourth and final issue, he claims that the prosecutor engaged in misconduct during the penalty phase by telling the jury that Appellant had never expressed remorse, when the Commonwealth allegedly was well aware that Appellant had apologized on national television after being captured in Florida and also that he had expressed remorse in his written, signed statement of confession to police. Appellant's Brief at 27. Appellant accuses the Commonwealth of "disingenuousness," which denied him a fair trial by an impartial jury. Id. In this challenge, Appellant provides only one citation to the notes of
N.T. Penalty Phase, 11/24/09, at 32-33 (Commonwealth Closing Argument) (emphasis added to portion specifically cited by Appellant in his brief at 27) (footnote added).
In response to Appellant's claim of misconduct, the Commonwealth raises three arguments. First, the Commonwealth asserts that Appellant has waived any claim of error with regard to the prosecutor's comments on remorse because he failed to make a contemporaneous objection. Commonwealth's Brief at 32-33 (citing Pa. R.A.P. 302(a), which provides that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal"). Second, the Commonwealth points out that neither the televised interview nor the statement to police, in which Appellant allegedly expressed remorse for the murder of Officer Cassidy, was admitted into evidence or is of record, and thus neither exists for purposes of appellate review.
The trial court concluded that Appellant waived this issue because he failed to provide any citation to the record to identify where the prosecutorial misconduct allegedly
From our review of the record, we conclude that Appellant did not make a contemporaneous objection to the prosecutor's penalty-phase closing argument concerning remorse. Therefore, this issue has been waived. See Pa.R.A.P. 302(a); Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1229 (2009) ("This Court has held that the lack of a contemporaneous objection constitutes a waiver of any challenge to the prosecutor's closing remarks.")
Finally, having determined that Appellant is entitled to no relief on his claims, we must, pursuant to 42 Pa.C.S. § 9711(h)(3), affirm Appellant's sentence of death unless we conclude either that it was the product of passion, prejudice, or any other arbitrary factor, or that the evidence failed to support the finding of at least one aggravating circumstance. Having carefully reviewed the record, we are persuaded that Appellant's sentence of death was not the result of passion, prejudice, or any other arbitrary factor, but rather was grounded in the Commonwealth's evidence. We also conclude that the evidence was sufficient to support each of the three aggravating factors found by the jury, to wit, the victim was a peace officer killed in the performance of his duties, the murder was committed during the perpetration of a felony, and Appellant had a significant history of violent felony convictions. 42 Pa.C.S. § 9711(d)(1), (d)(6), and (d)(9), respectively.
Accordingly, for the foregoing reasons, we affirm Appellant's sentence of death.
Justice ORIE MELVIN did not participate in the decision of this case.
Justice SAYLOR and BAER and Justice TODD join the opinion.
Chief Justice CASTILLE files a concurring opinion.
Justice EAKIN files a concurring opinion.
Chief Justice CASTILLE.
I join the Court's mandate of affirmance, and I join the Majority Opinion itself, subject to the following two qualifications.
First, with regard to this Court's self-imposed duty in capital direct appeals to independently review the sufficiency of the evidence for first-degree murder, the Majority confines its review to the evidence introduced at trial, without considering appellant's plea of guilty to murder generally. This Court conducts sua sponte sufficiency review even in capital cases where a guilty plea encompasses the lead charge of first-degree murder. See Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 615 (2010); Commonwealth v. Singley, 582 Pa. 5, 868 A.2d 403, 408 (2005); Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 62 (2003) ("Safeguards exist to protect against an arbitrary imposition of the death sentence.... These protections act to prevent the imposition of a death sentence based solely upon a defendant's proclamation of guilt."). I recognize that, on occasion, the Court has assessed sufficiency without looking to the significance of the plea or the proffer supporting it, including in Flor, a decision I joined. Notably, however, both Fears and Singley looked also to the factual basis for the plea in assessing sufficiency, and this is obviously the better practice. Moreover, cases like this one have convinced me of the wisdom of the position of Mr. Justice Saylor, as outlined in his concurrence in Commonwealth v. Frey, 588 Pa. 326, 904 A.2d 866 (2006):
Id. at 875 (Saylor, J., concurring).
Here, appellant entered a plea of guilty to murder generally, and the Commonwealth forwarded a supporting proffer. The proffer and plea alone — whose validity appellant does not challenge — establish all elements of first-degree murder but specific intent: appellant unlawfully killed Officer Cassidy and acted with malice in doing so. In my respectful view, our evaluation of sufficiency must encompass the plea.
Second, I have a number of concerns respecting appellant's claim that the trial court erred in admitting victim impact testimony at the guilt phase, specifically the testimony of Judy Cassidy, the widow of Charles Cassidy, the Philadelphia Police Officer whom appellant murdered. At the outset of its analysis, the Majority poses the question as if the claim is that the entirety of Mrs. Cassidy's testimony was objectionable as victim impact evidence. Majority Op. at 331. But, that is not the claim. The Commonwealth did not proffer (or defend) Mrs. Cassidy's testimony as victim impact evidence, and the court below did not admit it as such. As the Majority later recognizes, Mrs. Cassidy's testimony was admitted as life-in-being evidence and appellant never disputed, either below or here, that life-in-being testimony is admissible in a murder prosecution; instead, appellant's claim is that the testimony went beyond life-in-being and encompassed victim impact. Appellant's Brief at 24.
Finally, concerning life-in-being evidence, I write in response to the Majority's notation in a footnote that the Court's holding "should not be taken to imply that life-in-being testimony is never relevant to or never admissible in the degree-of-guilt phase of a murder trial," as "[t]hat issue is not before us." Majority Op. 333 n. 7. I could not agree more; indeed, the observation is so much the case that the Majority could ignore this non-issue entirely.
In an attempt to avoid the mischief this unnecessary footnote may invite, I write to explain why I am inclined to believe that it would be strange indeed for a murder defendant to claim — and appellant should be commended for not claiming — that a murder victim's life-in-being can be rendered irrelevant by the defendant's pleading strategy. When Officer Cassidy walked into a coffee shop on the morning of October 31, 2007 and unwittingly happened upon a robbery in progress, he was a person, a human being. He was neither an abstraction nor a mere prop for the
In this case, the Commonwealth pursued capital murder charges, and when appellant pled guilty to committing the murder "generally," he did not acknowledge guilt of first-degree murder; his plea was strategic (and no doubt wise, given the videotape). Instead, appellant focused on defeating a verdict of first-degree murder or, failing that (as was likely, given the evidence), creating a platform for a penalty phase case in mitigation premised upon acceptance of responsibility. When the defendant insists that the Commonwealth carry its burden to establish the degree of murder to the jury, I do not believe that defense pleading strategy controls the Commonwealth's ability to present its case in full. This case was about murder, so it necessarily encompassed the prior existence of Officer Cassidy.
When a defendant pleads guilty to murder generally, the Commonwealth does not concurrently waive its ability or duty to put on its case and prove the elements of first-degree murder beyond a reasonable doubt, a point this Court has addressed in the capital context: "[T]he Commonwealth has some flexibility in proving its case. See Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ("[A] criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.")." Commonwealth v. Philistin, 53 A.3d 1, 14 n. 8 (Pa.2012). Similarly, we have recognized that, "a criminal defendant does not have the right to have all evidence presented against him at trial sanitized of anything that could cause jurors to sympathize with the victim or his family." Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 807 (2007). Indeed, the fact that a person has been killed is rarely challenged in a murder prosecution. And, even aside from the partial guilty plea scenario, in cases where there is a dead body and proof of criminal agency, it costs a defendant nothing to admit or stipulate that the victim has died. I do not believe that pleas or stipulations to the fact of the victim's death render life-in-being testimony irrelevant. Certainly, the trial court, in its discretion, can rein in and channel the Commonwealth's proof. Nevertheless, evidence going to elements of the crime placed before the jury is not inadmissible, even if certain of the elements are strategically uncontested.
I agree with the majority's conclusion that Mrs. Cassidy's testimony was harmless victim impact evidence. As Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710, 716 (1994), predates the statutory construct regarding victim impact evidence and only deals with life-in-being testimony, I find the discussion of such testimony to be unnecessary dicta.
Appellant's Brief at 5-6.
The claim is also meritless. The decision to sever is within the discretion of the trial court, and we will reverse only if the trial court has abused that discretion. Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418 (1997). This Court has set forth a three-part test to guide the trial court in deciding a motion to sever:
Our review of the evidence relevant to Appellant's multiple robberies, see text supra, provides no support for his claim that the trial court abused its discretion in denying severance.
Commonwealth v. Ronello, 242 Pa. 381, 89 A. 553, 553-54 (1913) (citation omitted and emphasis added) (murder victim consistently referred to in record of trial as "Joe Wilson," but body was never positively identified as "Guiseppe Visalli," the name that appeared on the indictment).