[J-26-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, No. 682 CAP
Appellee Appeal from the Judgment of Sentence
entered on December 12, 2012 in the
Court of Common Pleas, Chester County,
v. Criminal Division at Nos. CP-15-CR-
0002897-2009 and CP-15-CR-0004895-
2008. Post Sentence Motions denied by
LAQUANTA CHAPMAN, operation of law on 05/30/2013 (see order
entered on 06/18/2013 in CCP)
Appellant
ARGUED: September 10, 2015
RESUBMITTED: January 20, 2016
OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: March 29, 2016
This is a capital direct appeal.
On October 30, 2008, Appellant shot and killed his sixteen-year-old neighbor,
Aaron Turner, in the basement of Appellant’s residence. Subsequently, with the
assistance of his younger cousin, Bryan Bird, Appellant dismembered the victim’s body
and disposed of the remains in the trash.
Weeks later, law enforcement officers investigating the sale of illicit drugs from
Appellant’s premises obtained a warrant to search them for evidence of drug activity. In
the course of the ensuing search, police discovered an abundance of residual, physical
evidence from the killing and dismemberment. Appellant was arrested and charged
with murder and other crimes, and the Commonwealth tendered notice of an intention to
pursue the death penalty.
At Appellant’s trial before a jury, the defense admitted that Appellant had
perpetrated most of the crimes with which he was charged (other than murder). See,
e.g., N.T., Nov. 1, 2012, at 52-53; N.T., Nov. 8, 2012, at 98. In line with these
concessions, the defense acknowledged that the victim had been killed in the basement
of Appellant’s residence, see, e.g., N.T., Nov. 1, 2012, at 149, and that Appellant “was
involved in cleaning up the crime scene.” N.T., Nov. 8, 2012, at 98. The defense
contended, however, that there was reasonable doubt concerning the identity of the
shooter and attempted to shift the blame to Bryan Bird.
The jury nonetheless convicted Appellant of first-degree murder and other
offenses and returned a death verdict in a separate penalty proceeding. Post-sentence
motions were filed and denied, and this direct appeal followed.
Guilt Phase
Although Appellant does not challenge the sufficiency of the evidence supporting
his first-degree murder conviction, this Court automatically undertakes such review in
capital direct appeals.
In the present case, the only element of first-degree murder ever in question
pertained to identity, since the deliberate, malicious killing and subsequent
dismemberment of Aaron Turner were amply established by physical evidence.1 The
1 See, e.g., N.T., Nov. 2, 2012, at 11-29 (reflecting the testimony of a crime scene
investigator that various blood-stained items of Appellant’s clothing were found in a
garbage bag in Appellant’s residence, together with a .25 caliber shell casing); N.T.,
Nov. 7, 2012, at 192-200 (reflecting the attestation of a DNA expert to a very high
probability that human tissue and blood found in the basement of Appellant’s residence
and on clothing in garbage bags on the first floor were the victim’s).
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Commonwealth presented testimony from Bryan Bird that he was an eyewitness to
Appellant’s perpetration of the killing, see, e.g., N.T., Nov. 5, 2012, at 36, and an inmate
testified that, while in jail awaiting trial, Appellant confessed to having killed the victim.
See N.T., Nov. 7, 2012, at 100-107. Such evidence, in and of itself, was plainly
sufficient to support the jury’s determination. Moreover, the Commonwealth presented
a wealth of corroborating circumstantial evidence, including Appellant’s attempts to
destroy evidence and lies to police during their investigation,2 evidencing his
consciousness of his guilt.
In his first guilt-phase claim for relief, Appellant asserts that the common pleas
court erred when it denied a pretrial motion seeking to suppress evidence taken from
his residence. Appellant styles this claim as follows: “Search of House Impermissible
as Beyond the Breadth of a Search Warrant Describing Criminal Conduct in a Detached
Garage.” Brief for Appellant at 18 (emphasis adjusted). Consistent with this framing,
Appellant’s argument assumes that the affidavit of probable cause supporting the initial
warrant described criminal conduct only in the garage. See, e.g., id. (depicting the
underlying circumstances as involving “[a] search warrant issued 10/22/2008, describing
criminal conduct (drug sales) from a garage building detached from a home”); id. at 19
(suggesting that “the search warrant affidavit (controlled drug buys from garage) did not
describe conduct in the house”). While indicating that it is permissible to extend an
authorized search of a residence to the curtilage, Appellant contends that such an
approach should not operate in the reverse, particularly given the decisions of this Court
2 Again, the evidence presented by the prosecution on both points was so strong that
the defense conceded them. See, e.g., N.T., Nov. 8, 2012, at 98 (reflecting defense
counsel’s concession, in his closing remarks to the jurors, that Appellant was “involved
in cleaning up the crime scene”); id. at 104 (reflecting defense counsel’s assertion
before the jury that Appellant “is one of the worst liars I’ve ever seen in my life”).
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allocating to residences the strongest protection from unreasonable searches. See,
e.g., Commonwealth v. Brion, 539 Pa. 256, 257, 652 A.2d 287, 287 (1994)
(characterizing the right to privacy in one’s domain as “sacrosanct”). Appellant also
suggests that a particular description of the place to be searched, in terms of the
residence, was lacking in the relevant search warrant. See Brief for Appellant at 19.
A primary flaw in this argument is that it is materially misleading. Initially, the
search warrant under review expressly identified the premises to be searched as
follows:
35 Chester Avenue is described as a single family dwelling,
twin with white siding and yellow door/shutters.
Detached garage is located to the rear of the residence
having white shingles.
Application for Search Warrant and Authorization at 1 (emphasis added). Thus, the
residence was very plainly encompassed within the warrant.
Moreover, although Appellant is correct that the affidavit of probable cause
describes controlled drug purchases occurring in the garage, the affiants also
specifically sought permission to search the residence based, inter alia, upon
attestations that: the affiants had particularized knowledge and experience with drug
trafficking; “it is common for larger-scale narcotic traffickers to secrete contraband,
proceeds of narcotics sales, and records of drug transactions in secure locations within
their residences”; “narcotics traffickers commonly have in their possession, that is on
their person, at their residence and/or their businesses, firearms”; and “three individual
sources . . . relayed that over the past month the foot traffic and suspected drug activity
which had been taking place from the garage . . . has moved to the rear door of the
residence which is where all of the activity is now taking place.” Id. at 3, 5, 8 (affidavit of
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probable cause). Upon consideration of this and other information within the four
corners of the affidavit of probable cause, the attesting officers indicated:
[B]ased on your affiants’ experience and training, and the
facts described herein, it is you affiants’ opinion that there is
ongoing drug trafficking taking place inside the residence
listed above. Your Affiants believe that there is a fair
likelihood that [the] aforementioned residence will contain
those items listed in the section titled Items to be searched
for and seized within this document.
Id. at 8 (emphasis added).
Judicial review concerning whether a search warrant is supported by probable
cause is generally accomplished via a close review of the affidavit, see Commonwealth
v. Coleman, 574 Pa. 261, 271, 830 A.2d 554, 560 (2003), and certainly, there is a
wealth of precedent governing such review as it concerns information received from
unidentified persons and confidential informants. See, e.g., Commonwealth v. Luv, 557
Pa. 570, 576, 735 A.2d 87, 90 (1999) (“A determination of probable cause based upon
information received from a confidential informant depends upon the informant’s
reliability and basis of knowledge viewed in a common sense, non-technical manner.”).
Appellant’s presentation, however, does not implicate an examination of this line of
precedent, since he offers no argumentation assailing the quality or veracity of the
information collected by the affiants.
In summary, Appellant’s position that the search warrant was directed only to the
garage and described only criminal conduct in such location is facially meritless.
Next, Appellant complains that his constitutionally protected refusal to voluntarily
surrender a DNA sample to investigators was wrongfully used against him at trial.
By way of background, in his examination of a detective at trial, the prosecutor
elicited a statement that Bryan Bird and another suspect had voluntarily provided DNA
samples to police but that Appellant had refused to do so. See N.T., Nov. 5, 2012, at
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123. Appellant’s counsel advanced a general objection, and the trial court, acting sua
sponte, cautioned the jurors as follows:
Ladies and gentlemen, the defendant is required to provide
no evidence whatsoever in this matter. And I instructed you
earlier on the presumption of innocence. And I instructed
you about the obligation of the defense to provide no
evidence, only if it deems appropriate to do so.
And the fact that any requests were made of [Appellant] to
do anything in this matter is completely irrelevant. He is
under no obligation to provide any evidence, either during
the course of the trial or during the course of the
investigation.
Id. at 123-124.
Despite this instruction, the defense then moved for a mistrial on the basis that
the refusal was “clearly an assertion of the right to silence.” Id. at 124. The court
denied this motion but, anticipating that the prosecution intended to display to the jury a
videotape of the police interview with Appellant, directed the prosecutor to redact
references to Appellant’s refusal to furnish a DNA sample. See id. at 125. Although the
tape was redacted to remove some references to such refusal, apparently one was
missed, see id. at 135-36, which proceeded as follows:
[Detective]: And you’re telling me I should check
everybody’s DNA but I can’t even get your DNA. You
understand like how I’m supposed to check everybody’s?
[Appellant]: No I’m saying like.
[Detective]: You want me to eliminate you from stuff.
[Appellant]: Yeah.
[Detective]: Well.
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[Another Detective]: You want me to check DNA on other
people that stay in the house but the person that owns the
house . . ..
Id., Ex. C-37 at 153.
The defense again moved for a mistrial, see id. at 135, and the trial court denied
that motion as well, see id. at 137-38. Instead, the court offered to repeat its cautionary
instruction, which the defense refused. See id. Later, however, in its opinion under
Rule of Appellate Procedure 1925(a), the court took the position that Appellant’s
challenge was a “red herring,” since references to Appellant’s refusal were admissible
into evidence given that the statement was voluntarily made. Commonwealth v.
Chapman, Nos. 2897-2009, 4895-2008, slip op. at 3-4 (C.P. Chester Mar. 9, 2015).3
Presently, Appellant maintains that his Fifth Amendment right against self-
incrimination was violated. See, e.g, Brief for Appellant at 26 (“[A]ppellant here asserts
that spotlighting the choice not to submit DNA ought to be treated just like any
traditional self-incrimination protection.”). Appellant also offers a general allusion to due
process. See id. (“It is constitutionally impermissible to make any suggestion or ask for
any inference as the prosecutors here did, and the learned trial judge who permitted it to
ripen into a death sentence violated appellant’s rights under the 14th Amendment right
to [d]ue process in doing so.”). In response, the Commonwealth asserts, inter alia, that
Appellant’s right against self-incrimination was never in issue, since DNA evidence is
nontestimonial in nature. Cf. Schmerber v. California, 384 U.S. 757, 765, 86 S. Ct.
1826, 1832-33 (1966) (holding that evidence garnered from a blood test is not protected
3 The trial court deemed the objection to have been waived in the absence of any
reference to the playing of Appellant’s statement. We decline to enforce a blanket
waiver relative to this claim, however, where Appellant objected to references to his
refusal; the court directed that the videotape of his interview should be redacted to
exclude such references; and Appellant objected promptly to a missed reference after
the tape was played.
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by the Fifth Amendment because it is “neither [] testimony nor evidence relating to some
communicative act or writing”).
Although Appellant’s focus on the Fifth Amendment may be misplaced, we find
that the circumstances presented implicate a broader due process concern. In this
regard, the admission of evidence of a refusal to consent to a warrantless search to
demonstrate consciousness of guilt is problematic, as most jurisdictions hold (outside
the context of implied-consent scenarios) that such admission unacceptably burdens an
accused’s right to refuse consent.4
Nevertheless, we find that the reference to Appellant’s refusal was harmless as it
was not highlighted to the jury by the prosecutor; the trial court had issued an
appropriate cautionary instruction and offered to repeat it; and Appellant’s
consciousness of guilt relative to his many crimes was manifest in any event by virtue of
his admitted conduct in destroying evidence and lying pervasively to police. See, e.g.,
supra note 2. Upon our review of the record as a whole, which presents strong direct
and circumstantial evidence of Appellant’s guilt, we conclude that the reference simply
4 See, e.g., United States v. Runyan, 290 F.3d 223, 249 (5th Cir. 2002) (“[T]he circuit
courts that have directly addressed this question have unanimously held that a
defendant’s refusal to consent to a warrantless search may not be presented as
evidence of guilt.”); State v. Jones, 753 N.W.2d 677, 687 (Minn. 2008) (“It is a violation
of the defendant’s right to due process for a prosecutor to comment on a defendant’s
failure to consent to a warrantless search.”); Bargas v. State, 489 P.2d 130, 132 (Alaska
1971) (“It would make meaningless the constitutional protection against unreasonable
searches and seizures if the exercise of that right were allowed to become a badge of
guilt.”); accord Commonwealth v. Tillery, 417 Pa. Super. 26, 35, 611 A.2d 1245, 1250
(1992) (citing Commonwealth v. Welch, 401 Pa. Super. 393, 398, 585 A.2d 517, 520
(1991)).
As an aside, such treatment contrasts with the response in scenarios in which a
defendant resists providing a sample during the execution of a duly authorized search
warrant. See, e.g., United States v. Ashburn, 76 F. Supp. 3d 401, 444-46 (E.D.N.Y.
2014).
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did not make a difference in the verdict. See generally Commonwealth v. Story, 476
Pa. 391, 409, 383 A.2d 155, 164 (1978) (setting forth the standard governing harmless-
error review).
Penalty Phase
Appellant presents several claims of trial court error at the penalty stage. Our
review, however, centers upon the one which we find to be dispositive of the outcome of
this appeal.
Appellant argues that the evidence offered by the Commonwealth in support of
the sole aggravating circumstances pursued by the prosecution and found by the jury
was insufficient.5 Appellant explains that the Commonwealth proceeded to a penalty
hearing exclusively on the basis that Appellant had “a significant history of felony
convictions involving the use or threat of violence to the person.” 42 Pa.C.S.
§9711(d)(9) (emphasis added). To support this aggravator, the prosecution adduced
evidence that Appellant was convicted, in New Jersey, of two instances of aggravated
assault as such offense is defined and administered in that state. See N.J. Stat. Ann.
§2C:12-1(b)(3), (4). Appellant observes, however, that New Jersey does not
denominate violations of its criminal statutes as “felonies,” but, rather, employs a
grading scheme ranging from “a crime of the first degree” to “a crime of the fourth
degree.” See, e.g., id. §2C:43-6. Further, Appellant highlights that his convictions
entailed the least of these denominations, fourth degree crimes, which carry a maximum
sentence of up to eighteen months. See id. §§2C:12-1(b)(4), 2C:43-6(a)(4). It is
5 This claim was preserved, even in the absence of a specific objection during the
penalty phase, upon the common pleas court’s denial of a pretrial motion to quash the
aggravator. See Pa.R.E. 103(b). In any event, the defense renewed the objection in
the sentencing proceedings. See N.T., Nov. 13, 2012, at 2.
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Appellant’s core position that the New Jersey crimes cannot be considered felonies for
purpose of the (d)(9) aggravator.
During the penalty phase, the trial court recognized that, based on the
sentencing structure, Appellant’s New Jersey crimes simply were not felonies in
Pennsylvania. See N.T., Nov. 13, 2012, at 10. Nevertheless, the court suggested that
it might proceed under an equivalency test based on conduct. According to the court:
It would be conduct, not penalty. Because otherwise, you
would allow the New Jersey legislature to regulate the
equivalent grading in Pennsylvania based upon that
legislature’s determination of what the appropriate penalty
might be instead of Pennsylvania statute, instead of the
Pennsylvania legislature.
Id. Subsequently, however, the court implemented a previous ruling that felony status,
for purposes of the relevant aggravator, should be adjudged according to whether a
crime was a common-law felony. See id. at 23-24.
In response to Appellant’s arguments, the Commonwealth relies substantially
upon a footnote in Commonwealth v. Maxwell, 534 Pa. 23, 626 A.2d 499 (1993), in
which the Court pronounced, rather cryptically, that “[a] felony is a felony no matter
where it is committed.” Id. at 27 n.4, 626 A.2d at 501 n.4. While the Commonwealth
concedes that New Jersey does not use the term “felony” in classifying crimes, it
maintains that “the crime[s] of which the defendant was convicted of in New Jersey
have been considered felonies by courts in various contexts.” Brief for Appellee at 45.
In this regard, the Commonwealth references Zaborowski v. PSP, 892 A.2d 68 (Pa.
Cmwlth. 2006), in which the Commonwealth Court found no error in the State Police’s
classification of several New Jersey crime convictions as felony convictions for
purposes of the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S. §§ 6101-6127.
Zaborowski, 892 A.2d at 72-74. Finally, the Commonwealth endorses the trial court’s
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rationale adopting a common-law litmus for felonies, for purposes of the (d)(9)
aggravator.
The issue of statutory construction before the Court presents a question of law
over which our review is plenary.
In Commonwealth v. Robinson, 583 Pa. 358, 877 A.2d 433 (2005), this Court
determined, for purposes of the aggravating circumstance set forth at Section
9711(d)(6) -- pertaining where a defendant has committed a killing while in perpetration
of a felony -- that the definition of “felony” should be taken from the Crimes Code. See
id. at 379-81, 877 A.2d at 445-46 (relying upon Commonwealth v. Walker, 540 Pa. 80,
102-03, 656 A.2d 90, 101 (1995)).6
As clarified in the Joint State Government Commission’s Comment, Section 106
of the Crimes Code delineates that offenses that are not specifically denominated
felonies or misdemeanors in the Crimes Code, but which carry maximum sentences of
five years or less, are classified as misdemeanors; whereas, crimes not specifically
denominated felonies or misdemeanors in the Crimes Code, but which carry maximum
sentences of more than five years, are classified as felonies. See 18 Pa.C.S. §106(b)
(4), (6), Joint St. Gov’t Comm’n Comment. Furthermore, the statute specifies that “[a]ny
offense declared by law to constitute a crime, without specification of the class thereof,
is a misdemeanor of the second degree, if the maximum sentence does not make it a
6 In responsive opinions, this author, Justice Baer, and former Justice Nigro advanced
the position that the (d)(6) aggravator should be limited to six major felonies that are
specifically enumerated in a statutory definition of “perpetration of a felony,”
which is presently reposited in the section of the Crimes Code addressing the
substantive crime of murder, 18 Pa.C.S. §2502(d). See Robinson, 583 Pa. at 392-99,
877 A.2d at 453-58 (Saylor, J., concurring and dissenting, joined in relevant part by
Nigro, J.); id. at 387, 877 A.2d at 450 (Baer, J., concurring and dissenting). That
position, however, did not command a majority.
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felony under this section.” Id. §106(d). Finally, Section 106 also provides that “[a]n
offense hereafter defined by any statute other than this title shall be classified as
provided in this section.” Id. §106(e).
Regardless of what was said in Maxwell’s cryptic footnote, the Pennsylvania
Legislature has generally established a bright-line division between felonies and
misdemeanors, in the absence of a specific designation within the Crimes Code, hinging
on the permissibility of a term of incarceration greater than five years. This Court’s
Robinson decision expressly requires application of this test in the assessment of the in-
perpetration-of-a-felony aggravator, and we can discern no reason why the concept of
“felony” should be different as applied to the (d)(9) aggravating circumstance.
Moreover, this Court is obliged to maintain a narrowing construction relative to
imposition of capital punishment. See, e.g., Zant v. Stephens, 462 U.S. 862, 877, 103
S. Ct. 2733, 2742 (1983) (holding that, to satisfy the constitutional standard derived
from Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), an aggravating
circumstance “must genuinely narrow the class of persons eligible for the death penalty
and must reasonably justify the imposition of a more severe sentence on the defendant
as compared to others found guilty of murder”). Along these lines, we simply do not
believe that the Legislature intended for the five-year litmus to apply to offenses
committed in Pennsylvania, but to disparately implement some looser, common-law
construct pertaining to crimes committed in other states. Furthermore, the conduct-
based equivalency regime alluded to by the trial court also would generate factual
issues which would need to be resolved by jurors, not judges. We find no indication, on
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the face of the statute, that the General Assembly intended such a fact-driven inquiry to
be undertaken.7
The New Jersey crimes of which Appellant was convicted -- per which the
sentencing court was authorized to impose, at most, eighteen-month maximum terms --
plainly do not qualify as felonies under Section 106 of the Pennsylvania Crimes Code.
We conclude, therefore, that they could not serve as the essential predicate for the
(d)(9) aggravator, which turns upon a finding of a significant history of violent felony
convictions. See 42 Pa.C.S. §9711(d)(9).
Given that the (d)(9) aggravator was the sole aggravating circumstance
presented to the jury, we are required to remand for imposition of a life sentence. See
42 Pa.C.S. §9711(h)(4) (“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.”).8
7 We believe that the common pleas court’s reservation about other state legislatures
determining felony status when implementing their own policy-based judgments
concerning penalties is of lesser concern than application of a disparate common-law or
equivalency construct pertaining to out-of-state offenses. Moreover, and again, at least
after rejection of the minority position in Robinson that the perpetration-of-a-felony
aggravator was subject to a discrete statutory formulation, see supra note 6, we discern
no evidence that the General Assembly intended for different conceptions of the term
“felony” to apply as between Sections 9711(d)(6) and (d)(9).
8 In some recent decisions, this Court has transferred death-penalty appeals to the
Superior Court, which administers as-of-right direct appellate review in non-capital
cases, when it has become clear in our own review that a death sentence is
unavailable. See, e.g., Commonwealth v. Gibson, 592 Pa. 411, 418, 925 A.2d 167, 171
(2007). Here, however, the guilt-phase review is not burdensome and was complete as
of the time it became clear that imposition of a life sentence was required. Therefore,
and to promote efficiency, we have completed the guilt-phase review, above.
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The judgment of sentence of death is reversed, and the case is remanded to the
common pleas court to effectuate the imposition of a life sentence. Jurisdiction is
relinquished.
Justices Baer, Todd, Donohue, Dougherty and Wecht join the opinion.
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