[J-58A-C-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 756 CAP
:
Appellee : Appeal from the Judgment of
: Sentence entered on December 9,
: 2016, in the Court of Common Pleas,
v. : Philadelphia County, Criminal Division
: at No. CP-51-CR-0002231-2015.
:
TAM M. LE, :
: ARGUED: September 25, 2018
Appellant :
COMMONWEALTH OF PENNSYLVANIA, : No. 757 CAP
:
Appellee : Appeal from the Judgment of
: Sentence entered on December 9,
: 2016, in the Court of Common Pleas,
v. : Philadelphia County, Criminal Division
: at No. CP-51-CR-0002232-2015.
:
TAM M. LE, :
: ARGUED: September 25, 2018
Appellant :
COMMONWEALTH OF PENNSYLVANIA, : No. 758 CAP
:
Appellee : Appeal from the Judgment of
: Sentence entered on December 9,
: 2016, in the Court of Common Pleas,
v. : Philadelphia County, Criminal
: Division, at No. CP-51-CR-0002233-
: 2015.
TAM M. LE, :
:
Appellant : ARGUED: September 25, 2018
:
OPINION
JUSTICE TODD DECIDED: MAY 31, 2019
In this direct capital appeal,1 Appellant Tam M. Le challenges the sentence of
death imposed by the Philadelphia County Court of Common Pleas following his
conviction by a jury of two counts of first-degree murder,2 one count of attempted murder,3
three counts of kidnapping,4 three counts of robbery,5 and one count of conspiracy.6 For
the reasons that follow, we affirm Appellant’s judgment of sentence.7
1 See 42 Pa.C.S. § 9546(d) (a final court order in a case in which the death penalty has
been imposed shall be directly appealable to the Supreme Court); id. § 9711(h)(1)
(sentence of death shall be subject to automatic review by Supreme Court).
2 18 Pa.C.S. § 2502(a).
3 Id. § 901.
4 Id. § 2901.
5 Id. § 3701.
6 Id. § 903.
7 Also pending before this Court is the Commonwealth’s “Application to File Post-
Submission Communication Clarifying Position” (“Application”). By way of background,
prior to oral argument of this case, the Commonwealth, on August 7, 2018, filed a motion
to hold this case in abeyance pending this Court’s disposition of Commonwealth v. Lavar
Brown, No. 728 CAP, wherein the appellant raised issues regarding the administration of
capital punishment in Pennsylvania. While the Commonwealth’s motion was still pending,
the Commonwealth filed its brief in this matter, arguing that Appellant’s capital sentence
should be affirmed. On August 24, 2018, another capital defendant, Jerome Cox, filed
with our Court a “Petition for Extraordinary Relief Under King’s Bench Jurisdiction” (“Cox
Petition”), challenging the administration of capital punishment in Pennsylvania following
the 2018 release of a report by the Joint State Government Commission (“Report”). See
Cox v. Commonwealth, 102 EM 2018; see also Marinelli v. Commonwealth, 104 EM 2018
(seeking similar relief). Ultimately, on August 27, 2018, this Court denied the
Commonwealth’s motion to hold the instant case in abeyance.
On September 17, 2018, the Commonwealth again requested this Court hold the
instant matter in abeyance, and further sought to postpone oral argument. See
Commonwealth’s Application to Hold Appellant’s Cases in Abeyance in View of the
Recently Filed Application for Extraordinary Relief under King’s Bench Jurisdiction. The
Commonwealth expressed concern that, were it to argue for affirmance of Appellant’s
sentence, that position might be “inconsistent with the position it ultimately adopts should
this Court exercise jurisdiction over Cox’s Petition.” Application at 3. This Court denied
the Commonwealth’s request on September 21, 2018. At oral argument, the
Commonwealth stated that, in light of the pending Cox Petition, it was not prepared to
[J-58A-C-2018] - 2
I. Factual and Procedural History
On August 26, 2014, Tan Voong, a/k/a Sonny Voong, received multiple telephone
calls from a friend, Vu Huynh, a/k/a Kevin Huynh (hereinafter “Kevin”), asking to borrow
$100,000. Kevin and his younger brother, Viet Huynh (hereinafter “Viet”), allegedly owed
the money to Appellant and several of Appellant’s friends from New York. Over the next
four to five hours, Voong was able to gather approximately $40,000, and was instructed
by Kevin to bring the money to Appellant’s house on South 72nd Street in Philadelphia.
Voong had met Appellant previously, and had been to his house on one prior occasion.
When Voong arrived at the residence, Appellant met him outside. Voong asked where
Kevin was, and Appellant led him to the garage. When Voong entered the garage, he
observed Kevin and Viet seated in chairs, bound, blindfolded, bleeding, and wearing only
their boxer shorts and T-shirts. He also saw four individuals with masks on their faces.
Voong attempted to run, but was hit in the face with a gun. He then was stripped to his
underwear and T-shirt; his hands were zip-tied behind his back; his mouth, eyes, and legs
were duct-taped; and he was placed in a chair. Someone asked Voong where the money
was, and Voong responded that it was in his car. Several of the masked individuals began
to beat Voong, who asked for time to collect the rest of the money. Appellant responded,
“It’s too late,” N.T. Trial, 11/14/16, at 96, and Voong, Kevin, and Viet were placed in a van
and driven to a location along the Schuylkill River.
As Voong was removed from the van, he felt sand under his feet. He knelt down
and felt himself being stabbed in the back, chest, and neck. Chains were strapped
argue for the affirmance of Appellant’s death sentence. The following day, the
Commonwealth filed the instant Application, in which the Commonwealth contends,
contrary to its brief, that it does not now seek any specific relief, but simply states that its
purpose is “to clarify that it does not argue for affirmance of the capital sentence in this
case, at this time, and to explain the basis for that position.” Application at 4. The
Commonwealth’s Application is granted, and its explanation is noted.
[J-58A-C-2018] - 3
around his legs, and he was kicked into the water. Fortunately, the water was shallow
and Voong was able to breathe. He played dead, during which time he heard Kevin and
Viet scream. He then heard something heavy enter the water, after which he heard
Appellant state, “It’s done.” Id. at 109. Upon hearing the van drive away, Voong rubbed
his face against a wall in order to remove the duct tape that was on his eyes. He
eventually dragged himself out of the water, which he was able to do because the chain
had come free from his legs. At approximately 4:00 a.m. on August 27th, two police
officers discovered Voong, wearing only boxer shorts and a bloody T-shirt, sitting on the
side of the highway. He was wet, shivering, and bleeding from multiple stab wounds. His
hands were zip-tied behind his back, and he had duct tape around his ankles and hanging
from his neck. Initially, Voong told police that his name was Fathanh Voong, which, in
fact, was the name of his brother, and he stated that he had been standing on a street
corner when a van pulled up and he was pulled inside. He reported that his abductors
stripped him, tied him up, and robbed him, and then drove him to the river, stabbed him
multiple times, and threw him in the river. He also told police that two other individuals
had also been thrown into the river, but he did not know them. He directed the police to
the location where he believed the other individuals to be. Voong was then taken to the
hospital, where it was discovered that he had eight stab wounds, two of which were life
threatening.
In the area of the river that Voong identified, police found the bodies of Kevin and
Viet, clothed only in boxer shorts and T-shirts. Kevin’s body was found submerged under
five feet of water. He had duct tape on his head, face, neck, mouth, and legs. Under the
duct tape on his eyes was fiberglass mesh construction tape. He had construction zip-
ties on his wrists, and nearby was a nearly-full bucket of roof cement with a chain
attached. Kevin had been stabbed 24 times in the torso, legs, and head. He also had
[J-58A-C-2018] - 4
nine cuts to his body, including four precise incisions to his face. The medical examiner
was unable to determine whether Kevin died prior to being thrown in the water, or after.
Viet’s body was found submerged under ten feet of water. He had duct tape over his
head, face, and arms. His legs were attached to a bucket of roof cement by a chain, wire
ties, and duct tape. He had been stabbed in the chest, back, face, and arms. As with
Kevin, the medical examiner was unable to determine whether Viet died before being put
into the water.
The police conducted a videotaped interview of Voong in his hospital room at
approximately 10:45 a.m. on August 27, 2014. Voong acknowledged that he previously
gave the police the name of his younger brother, and described the events that occurred
when he went to Appellant’s house the prior evening. At trial, Voong stated that he gave
the police his brother’s name and date of birth when he was first found because he did
not feel like he could trust anyone. Id. at 51. During the interview, Voong identified
Appellant, whom he referred to as “Lam,” from a photograph array by circling Appellant’s
picture.
On the morning of the following day, August 28, 2014, police officers searched
Appellant’s home and property, which he shared with his girlfriend, Bich Vo, their three
children, and Vo’s other two children. Amid a large amount of construction materials in
the detached garage, police discovered buckets of roof cement attached to chains and a
Walmart bag containing several pieces of rolled-up silver duct tape. The duct tape had
both blood and hair on it, and subsequent testing revealed that the blood and hair
contained both Kevin’s and Viet’s DNA.
On September 20, 2014, the police issued an arrest warrant for Appellant. By this
time, however, Appellant had fled with his girlfriend and children to Delaware. According
to the trial testimony of Vo, as she was leaving her house on August 26, 2014 to visit a
[J-58A-C-2018] - 5
friend in Baltimore, she saw Appellant, Viet, and a neighbor at her house. When she
returned home that evening, Appellant was not there and his green van was not in the
backyard; suspecting he was with another woman, she began to call his cell phone “[a]
lot.” N.T. Trial, 11/16/16, at 50. Appellant never answered the calls, and Vo began
sending him text messages, to which he did not reply. Vo testified that Appellant arrived
home sometime during the night with a friend named “Hai.” Vo testified that Appellant
and Hai left for work the next day, and that, later that afternoon, she received a phone
call from Hai instructing her to drive with her children to Hai’s mom’s house in Delaware.
When Vo and the children arrived at the house, Appellant and Hai were already there,
and, that same evening, Appellant, Hai, Vo, and the children all traveled to Rochester,
New York. At some point, Appellant parted ways with his family; however, Vo indicated
that she knew of Appellant’s whereabouts, and, indeed, she and her children were with
him when he ultimately was apprehended on January 13, 2015 in a hotel room in Ashland,
Virginia.
Prior to jury selection, Appellant’s counsel requested permission to question
potential jurors regarding Appellant’s prior conviction in New York for voluntary
manslaughter, the equivalent to third-degree murder in Pennsylvania. The trial court
denied the request.
At trial, in addition to the testimony of Voong and Vo,8 the Commonwealth
introduced the cell phone records of Appellant, Vo, Kevin, Viet, and Voong. In order to
8 At trial, Vo recanted many of the statements she gave during her interview with police
on December 19, 2014, including her statements that: when she arrived at Hai’s mom’s
house in Delaware, Appellant instructed her to turn off her cell phone so that the police
could not track it through GPS, N.T. Trial, 11/16/16, at 91-92; Appellant told her Kevin
and Viet were killed because they owed him money, id. at 92; Appellant described to her
how he and his accomplices stabbed Voong, Kevin, and Viet and threw them into the
river, id. at 94; and Appellant, upon learning that one of the victims survived the stabbing,
became pale and nervous and decided to leave Rochester, id. at 95.
[J-58A-C-2018] - 6
authenticate the records, the Commonwealth presented the testimony of Anthony Caine,
a retail sales manager for AT&T, and Dominick Kaserkie, a manager in the legal
compliance department at T-Mobile, both of whom testified that the cell phone records
were kept in the ordinary course of business. Agent William Shute, an expert in
historical cell site analysis, testified that the call detail records established, inter alia, that,
on August 26, 2014, Viet and Appellant exchanged numerous calls during the afternoon,
and placed Viet’s phone in the area of Appellant’s house that evening. The records further
revealed that Kevin and Viet exchanged a series of calls after 6:32 p.m. on August 26,
2014, and, between the early evening and midnight of that same day, Kevin and Voong
exchanged 35 calls. The records placed Kevin’s phone in the area of Appellant’s house
from 7:30 p.m. until at least 11:54 p.m. on August 26, 2014, and placed Voong’s phone
in the area of Appellant’s house from 11:15 p.m. on August 26, 2014, until at least 12:20
a.m. on August 27, 2014. The records further placed Appellant’s cell phone in the area
of his home from approximately 7:20 a.m. until at least 5:42 p.m. on August 26, 2014; in
the area of Chinatown around 7:20 p.m. on August 26, 2014; back at home until 12:27
a.m. on the morning of August 27, 2014; and then in the area of the crime scene from
between 1:45 a.m. to 1:59 a.m. that same morning. The records also showed that, during
this time, Vo called or texted Appellant ten times from her cell phone while she was at the
residence she shared with Appellant, and that, on the following day, she traveled from
Philadelphia to Delaware between the hours of 6:30 p.m. and 7:30 p.m.
Appellant testified in his own defense, claiming that Kevin and Viet had asked to
borrow money from him in order to repay a debt they owed to individuals from New York.
He testified that a number of people, including Viet, Kevin, and Voong came to his garage
on the evening of August 26, 2014 to discuss the repayment, and that several individuals
from New York tied up the brothers and Voong, but not him, and then put all four of them
[J-58A-C-2018] - 7
in a van and drove to the river. According to Appellant, after he begged for his life, his
abductors transferred him to another vehicle, took him somewhere and told him to count
to 1000, and, when he was finished, he realized he was back in his garage. Appellant
testified that he initially went to Delaware and New York because he was afraid for himself
and his family, and was afraid he would be arrested and accused of murder.
On December 1, 2016, a jury convicted Appellant of two counts of first-degree
murder; three counts of kidnapping; three counts of robbery; one count of attempted
murder; and one count of conspiracy.9 At the penalty phase of Appellant’s trial, the
Commonwealth introduced, inter alia, evidence of Appellant’s prior conviction for
manslaughter in New York. The jury found five aggravating circumstances with respect
to both first-degree murders: (1) the victim was being held for ransom or reward, 42
Pa.C.S. § 9711(d)(3); (2) the offense was committed during the perpetration of a felony,
id. § 9711(d)(6); (3) the offense was committed by means of torture, id. § 9711(d)(8); (4)
Appellant had “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,” id. § 9711(d)(10); and (5) Appellant had been convicted of
voluntary manslaughter, as defined in 18 Pa.C.S. § 2503, committed in another
jurisdiction either before or at the time of the offense at issue. 42 Pa.C.S. § 9711(d)(12).10
With respect to both murders, the jury found a single mitigating circumstance, the “catch-
all mitigator.” Id. § 9711(e)(8). Finding the aggravating circumstances outweighed the
mitigating circumstance, the jury returned sentences of death for the murders of Kevin
and Viet. Thereafter, the trial court imposed two death sentences, and a consecutive
sentence of 10 to 20 years imprisonment for Appellant’s conspiracy conviction relating to
9 Appellant was charged with conspiracy only in connection with the first-degree murder
of Kevin.
10 Appellant incorrectly states in his brief that the jury found four aggravating
circumstances. See Appellant’s Brief at 13.
[J-58A-C-2018] - 8
Kevin. Appellant also was sentenced to a consecutive term of 20 to 40 years
imprisonment for the attempted murder of Voong. No additional sentences were imposed
on Appellant’s three kidnapping and robbery convictions. Appellant filed a notice of
appeal, and the matter is now before this Court.
II. Analysis
A. Sufficiency of the Evidence
Although Appellant has not raised a claim regarding the sufficiency of the
evidence, in all direct capital appeals, this Court nevertheless reviews the evidence to
ensure that it is sufficient to support a first-degree murder conviction. Commonwealth v.
Poplawski, 130 A.3d 697, 709 (Pa. 2015). In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial, and all the reasonable
inferences derived therefrom, viewed in favor of the Commonwealth as verdict winner,
supports the jury’s finding of all of the elements of the offense beyond a reasonable doubt.
Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009).
First-degree murder is an intentional killing, i.e., a “willful, deliberate and
premeditated killing.” 18 Pa.C.S. § 2502(a), (d). In order to prove first-degree murder, the
Commonwealth must establish that: (1) a human being was killed; (2) the accused
caused the death; and (3) the accused acted with malice and the specific intent to kill.
Smith, 985 A.2d at 895. The jury may infer the specific intent to kill based upon the
defendant's use of a deadly weapon on a vital part of the victim's body. Id.
In addition, as it is relevant to our review of the first-degree murder convictions, in
order to convict a defendant of conspiracy, the Commonwealth must prove: (1) the
defendant intended to commit or aid in the commission of the criminal act; (2) that the
defendant entered into an agreement with another to engage in the crime; and (3) the
defendant or one or more of the other co-conspirators committed an overt act in
[J-58A-C-2018] - 9
furtherance of the agreed upon crime. Id. As it is often difficult to prove an explicit or
formal agreement, the agreement generally is established via circumstantial evidence,
such as by the relations, conduct, or circumstances of the parties, or the overt acts on the
part of co-conspirators. Commonwealth v. Johnson, 985 A.3d 915, 920. (Pa. 2009). In
the case of a conspiracy to commit homicide, each member of the conspiracy may be
convicted of first-degree murder, regardless of who inflicted the fatal wound. Id.
Finally, an individual may be held criminally liable for the acts of another, including
first-degree murder, as an accomplice. In order to sustain a conviction based on
accomplice liability, the Commonwealth must demonstrate that an individual acted with
the intent of promoting or facilitating the commission of an offense and agrees, aids, or
attempts to aid such other person in either planning or committing that offense.
Commonwealth v. Spotz, 716 A.2d 580, 585–86 (Pa. 1998). As with conspiracy, a shared
criminal intent between the principal and his accomplice may be inferred from a
defendant's words or conduct or from the attendant circumstances. Id.
Based upon our thorough review of the record, and even though it is unclear
whether Appellant or one of his co-conspirators and/or accomplices inflicted the fatal
wounds, we conclude that the evidence, viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to support Appellant’s convictions for
first-degree murder as a conspirator and/or accomplice in the deaths of Kevin and Viet.
As detailed above, Voong testified that, on August 26, 2014, he received numerous
telephone calls from Kevin, asking to borrow money. Kevin instructed Voong to bring the
money to Appellant’s house. Voong testified that, when he arrived at Appellant’s house,
Appellant escorted him to the garage, where he observed Kevin and Viet stripped to their
underwear, bleeding, and tied up in chairs. At this point, Voong was beaten by several
masked individuals. Voong testified that he asked for additional time to collect the
[J-58A-C-2018] - 10
remainder of the money, but Appellant responded that it was too late. Voong testified
that he, along with Kevin and Viet, were placed in a van and driven to a location along
the river. After he was removed from the van, Voong felt himself being stabbed in the
back, chest, and neck, after which chains were strapped around his legs and he was
kicked into the water. Thereafter, Voong heard Kevin and Viet scream, and then heard
them being thrown into the water. Finally, Voong testified that he heard Appellant state,
“It’s done.”
The cell phone records introduced at trial confirm the exchange of numerous
phone calls between Viet and Appellant, Kevin and Viet, and Kevin and Voong on the
afternoon and evening of August 26, 2014. The cell phone records further placed Kevin,
Voong, and Appellant in the area of Appellant’s house into the early morning of August
27, 2014, and placed Appellant’s phone in the area of the crime scene that same morning.
Following Voong’s identification of Appellant from a photo array, police discovered at
Appellant’s residence roofing cement buckets with chains wrapped around them; notably,
the bodies of both Kevin and Viet had roofing cement buckets chained to their legs, or
floating nearby. Police also recovered from Appellant’s garage duct tape that contained
Kevin and Viet’s hair and blood.
The above evidence presented by the Commonwealth, and the reasonable
inferences deduced therefrom, was sufficient to establish that Appellant, angry when
Kevin was unable to obtain the money he owed to Appellant, acted in concert with other
unidentified individuals to kidnap Kevin, Viet, and Voong; bind, gag, and transport them
to the river; weigh them down; stab them repeatedly; and throw them in the river, resulting
in the deaths of Kevin and Viet.
B. Admission of Cell Phone Records
[J-58A-C-2018] - 11
In his first briefed issue, Appellant argues that the trial court erred in admitting at
trial the cell phone records of Appellant, the victims, and Appellant’s alleged co-
conspirators, contending they were inadmissible hearsay. The admission 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 an abuse of that discretion. Commonwealth v. Reid, 99
A.3d 470, 493 (Pa. 2014).
Hearsay, defined as an out-of-court statement offered to prove the truth of the
matter asserted therein, generally is inadmissible at trial, unless it falls within an exception
to the hearsay prohibition. Herein, the trial court permitted the introduction of the cell
phone records, admittedly hearsay, pursuant to the “business records” exception in Rule
803(6) of the Pennsylvania Rules of Evidence, which provides that a record of an act,
event, or condition may be admitted under the following circumstances:
(A) the record was made at or near the time by−or from
information transmitted by−someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a “business”, which term includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) with a statute
permitting certification; and
(E) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
According to Appellant, the trial court erred in admitting the cell phone records
because the Commonwealth failed to establish a sufficient foundation for their admission
[J-58A-C-2018] - 12
under this exception. Appellant acknowledges that the Commonwealth established that
the cell phone records “were made in the ordinary course of business,” but he contends
that the Commonwealth “failed to introduce testimony as to who prepared the records
and whether the records were generated at or near the time the information in question
was transmitted.” Appellant’s Brief at 17. Appellant contends that the trial court’s
admission of the records “ignores” this Court’s holding in Commonwealth v. Carson, 913
A.2d 220, 264 (Pa. 2006), wherein we determined, in the context of an ineffectiveness
claim, that the defendant was not entitled to relief based on the trial court’s exclusion of
the defendant's records from a school for delinquent youth, which the defendant sought
to introduce as mitigation evidence, because, inter alia, the defendant never challenged
the trial court’s ruling that the school records were inadmissible because they had not
been authenticated.
The Commonwealth responds that Appellant has waived this claim by failing to
raise at trial a contemporaneous objection to the custodians’ testimony. Commonwealth’s
Brief at 22 (citing Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (failure to raise a
contemporaneous objection waives claim on appeal)). It further notes that, while
Appellant later offered an objection regarding the authentication of the identification of the
individuals to whom the cell phone numbers belonged, see N.T. Trial, 11/15/16, at 69,
and a general objection that the custodians of the records had not “authenticated these
records to a point wherein this testimony would be admissible,” id. at 82, Appellant at no
time raised a claim, as he does now, regarding who prepared the records or whether they
were generated contemporaneously. Finally, the Commonwealth points out that, even if
Appellant had not waived his claim, the claim is without merit because (1) Appellant’s own
expert relied on the same cell phone records; and (2) all of the facts introduced via these
records were established by independent sources − specifically, Voong’s testimony that
[J-58A-C-2018] - 13
he heard Appellant’s voice after he and the other victims were thrown in the river, Vo’s
testimony that she called Appellant multiple times on the night of the murders, and
Voong’s testimony that he saw Kevin and Viet in Appellant’s garage in the hour prior to
the murders.
Not only does Appellant fail to offer a cogent argument as to how the trial court’s
admission of the cell phone records was contrary to our decision in Carson, we conclude
that Appellant waived his objection to the admission of the cell phone records by failing
to lodge a specific objection at trial regarding his present challenge concerning the identity
of the individuals who prepared the records, and the time they were prepared. See
Commonwealth v. Cash, 137 A.3d 1262, 1275 (Pa. 2016) (where a defendant raises an
objection before the trial court on specific grounds, only those grounds are preserved for
appeal); Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot be
raised for the first time on appeal).
C. Voir Dire
Appellant next contends that the trial court erred in prohibiting defense counsel
from informing and questioning potential jurors about Appellant’s prior conviction for
voluntary manslaughter in New York, which is equivalent to the crime of third-degree
murder in Pennsylvania, in violation of his right to due process under the Sixth and
Fourteenth Amendments to the United States Constitution,11 and Article I, Sections 6 and
9 of the Pennsylvania Constitution.12
11 The Sixth Amendment, which is applicable to the states through the Fourteenth
Amendment, provides, in relevant part:
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed.
U.S. Const. amend. VI.
12 We note that, while in the headings of his brief Appellant suggests he is raising
challenges under both the United States Constitution and the Pennsylvania Constitution,
[J-58A-C-2018] - 14
The Sixth and Fourteenth Amendments guarantee a defendant the right to, inter
alia, an impartial jury, and this right extends to both the guilt and sentencing phases of
trial. Morgan v. Illinois, 504 U.S. 719, 727-28 (1992). In a capital proceeding, “the proper
standard for determining when a prospective juror may be excluded for cause because
of his or her views on capital punishment . . . is whether the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.’” Id. at 728 (citations omitted). The high Court explained:
A juror who will automatically vote for the death penalty in
every case will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the instructions
require him to do. Indeed, because such a juror has already
formed an opinion on the merits, the presence or absence of
either aggravating or mitigating circumstances is entirely
irrelevant to such a juror. Therefore, based on the
requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment, a capital defendant
may challenge for cause any prospective juror who maintains
such views.
Id. at 729.
To enable a capital defendant to enforce his [constitutional] right to an impartial
jury, he must be afforded an adequate voir dire to identify unqualified jurors: “Voir dire
plays a critical function in assuring the criminal defendant that his right to an impartial jury
will be honored. Without an adequate voir dire, the trial judge’s responsibility to remove
prospective jurors who will not be able impartially to follow the court’s instructions and
Appellant limits his discussion primarily to federal case law, and fails to offer any specific
argument under our organic charter. Thus, we will analyze Appellant’s claims under the
federal Constitution. However, for reference purposes, Article I, Section 6 of the
Pennsylvania Constitution guarantees a defendant a trial by jury, and Article I, Section 9
of the Pennsylvania Constitution guarantees a defendant an impartial jury. Pa. Const.
Art. I, §§ 6 and 9.
[J-58A-C-2018] - 15
evaluate the evidence cannot be fulfilled.” Id. at 729-30 (internal quotation marks
omitted).
While this Court has explained that the scope of voir dire is within the sound
discretion of the trial court, see Commonwealth v. Bridges, 757 A.2d 859, 872 (Pa. 2000),
the United States Supreme Court has stated that the exercise of the trial court’s discretion,
and the restriction upon inquiries at the request of counsel, are “subject to the essential
demands of fairness.” Morgan, 504 U.S. at 730 (citation omitted). The high Court further
held that, particularly in capital cases, “certain inquires must be made to effectuate
constitutional protections,” including questions regarding racial prejudice, and questions
as to whether a juror’s views on the death penalty would disqualify him from sitting, either
because the juror’s opposition to the death penalty is so strong that it would prevent the
juror from ever imposing the same,13 or because the juror would always impose the death
penalty following a conviction. Id. at 730-33.
In denying Appellant’s request to specifically inform and question potential jurors
about his prior conviction for manslaughter in New York,14 the trial court relied on this
13 As the high Court explained in Lockhart v. McCree, 476 U.S. 162 (1986):
[T]he State may challenge for cause prospective jurors whose
opposition to the death penalty is so strong that it would
prevent them from impartially determining a capital
defendant’s guilt or innocence. Ipso facto, the State must be
given the opportunity to identify such prospective jurors by
questioning them at voir dire about their views of the death
penalty.
Id. at 170 n.7
14 Prior to voir dire, the trial court did advise the prospective jurors that the Commonwealth
intended to seek the death penalty if Appellant was convicted of first-degree murder, and
posed two questions to the prospective jurors, the first being: “Do you have any religious,
moral, ethical, personal or conscientious beliefs or scruples which would prevent you from
considering and imposing the death penalty, assuming that the death penalty is warranted
and that a proper case with the death penalty has been made out? If so, please raise
your number.” N.T. Trial, 10/31/16, at 20. Approximately 40 prospective jurors
responded. The trial court then asked the prospective jurors: “Do you have any religious,
[J-58A-C-2018] - 16
Court’s decision in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003). In Bomar, the
appellant was sentenced to death following his conviction of first-degree murder, rape,
aggravated assault, kidnapping, and abuse of a corpse. On appeal, the appellant
claimed, inter alia, that the trial court denied him the opportunity to “life qualify”15 the jury
during voir dire by restricting him from “questioning potential jurors about specific
aggravating circumstances which might cause them to impose a death sentence and
specific mitigating circumstances which might cause them to return a sentence of life
imprisonment.” Id. at 847. Observing that the appellant failed to identify any instance in
which he sought to question potential jurors regarding a specific aggravating
circumstance, this Court addressed the three occasions on which the appellant claimed
he was precluded from questioning potential jurors concerning specific potential
mitigating circumstances, including the appellant’s childhood, his character and record of
“good deeds,” and “circumstances about [the appellant].” Id. at 847-48.
In holding that the trial court did not err in prohibiting the appellant from posing
those questions to the potential jury, we explained:
The purpose of voir dire is solely to ensure the empanelling of
a competent, fair, impartial, and unprejudiced jury capable of
following the instructions of the trial court. Neither counsel for
the defendant nor the Commonwealth should be permitted to
ask direct or hypothetical questions designed to disclose what
a juror’s present impression or opinion as to what his decision
will likely be under certain facts which may be developed in
the trial of a case. “Voir dire is not to be utilized as a tool for
moral, ethical, personal or conscientious beliefs or scruples that would prevent you from
considering and imposing a sentence of life imprisonment without parole, assuming that
sentence, the sentence of life in prison without parole, is warranted and that a proper
case for that sentence has been made out? If so, please raise your number.” Id. at 20-
21. Approximately 10 jurors responded.
15 The term “life-qualify” refers to the process of identifying prospective jurors who have
a fixed opinion that a sentence of death should always be imposed for a conviction of
first-degree murder. Commonwealth v. Smith, 131 A.3d 467, 477 (Pa. 2015).
[J-58A-C-2018] - 17
the attorneys to ascertain the effectiveness of potential trial
strategies.”
Id. at 849 (citations omitted).
We concluded that the questions the appellant in Bomar sought to ask prospective
jurors:
were intended to elicit what the jurors’ reactions might be
when and if appellant presented certain specific types of
mitigating evidence. The questions were simply not relevant
in seeking to determine whether the jurors would be
competent, fair, impartial and unprejudiced. Rather, the
queries at issue sought to gauge the efficacy of potential
mitigation strategies. Moreover, in the face of these
inappropriate questions, the trial court asked appropriate
general questions which revealed that the jurors in question
would consider all the evidence, both aggravating and
mitigating, and follow the court’s instructions.
Id.
Initially, Appellant attempts to distinguish Bomar on the ground that the existence
of his own prior conviction for voluntary manslaughter:
was not a fact that might be developed from the penalty
phase. Rather, it was a virtual certainty since neither party
disputed its existence. Further, trial counsel’s request for
[voir] dire on this fact was not an effort to learn what the
prospective jurors’ decisions would be when confronted with
it. Rather, Appellant merely sought to identify potential jurors
who would fail to keep an open mind or consider any
additional evidence and instead automatically vote for death
upon learning of this fact.
Appellant’s Brief at 20.
Appellant fails to acknowledge, however, that, subsequent to Bomar, this Court
rejected this same argument in Commonwealth v. Smith, 131 A.3d 467 (Pa. 2015). In
Smith, the appellant claimed the trial court denied him due process and the right to a fair
and impartial jury when it prohibited him from posing the following question to the potential
jury: “You will hear that [the defendant] was convicted, by plea of guilty, to the crime of
[J-58A-C-2018] - 18
[v]oluntary manslaughter in 1980. Is there any one of you who feels that[,] because of
the defendant’s prior convictions, that you would not consider a sentence of life
imprisonment[?]” Id. at 476. On direct appeal, the appellant argued that, pursuant to
the high Court’s decision in Morgan v. Illinois, he should have been permitted to ask this
specific question in order to life qualify potential jurors. This Court held that the appellant’s
proposed question was impermissible under Bomar, as it was “a question designed to
elicit what the jurors’ reactions might be when presented with a specific aggravating
circumstance.” Smith, 131 A.3d at 477. We further noted that each prospective juror had
already been “life-qualified” on the appellant’s first-degree murder conviction. Id. at 478.
Then Justice, now Chief Justice, Saylor filed a dissenting opinion in Smith, joined
by this author, wherein he observed that the federal district court in United States v.
Johnson, 366 F. Supp.2d 822 (N.D. Iowa 2005), distinguished between “1) case-specific
voir dire questions designed to determine whether jurors harbor some bias relative to
critical facts to be demonstrated by trial evidence, and 2) interrogatories seeking to pre-
commit jurors to a particular verdict.” Smith, 131 A.3d at 479 (Saylor, J., dissenting). The
Johnson Court suggested that case-specific questions might be necessary under the
Constitution to ensure that a defendant has a fair and impartial jury. Concluding that the
Smith majority “appears to implicitly reject Johnson’s approach to case-specific
questions” based on Bomar, Chief Justice Saylor opined that Bomar’s rationale “applies
only to pre-commitment-type interrogatories . . . and not to case-specific questions
appropriately framed to inquire into juror biases relative to critical facts.” Id. He further
stated that he “would follow the lead” of the California Supreme Court in People v. Cash,
50 P.3d 332 (Cal. 2002), which held that an absolute prohibition of case-specific
questions regarding a previous homicide during life qualification “created a risk that a juror
who would automatically vote to impose the death penalty on a defendant who had
[J-58A-C-2018] - 19
previously committed murder [or manslaughter] was empaneled and acted on those
views, thereby violating defendant’s due process right to an impartial jury.” Smith, 131
A.3d at 479 (Saylor, J., dissenting) (quoting Cash, 50 P.3d at 342-43).
In his brief to this Court, Appellant does not mention, let alone discuss, the majority
opinion in Smith, nor does he suggest that Smith should be overturned. He merely
asserts that “[a] number of other jurisdictions” have recognized that the type of question
he sought to ask “is essential to satisfying Morgan’s requirement of an impartial
factfinder,” citing Johnson, Cash, and the dissent in Smith, and urges this Court to adopt
their rationale, and grant him a new penalty hearing.16 Appellant’s Brief at 20. We decline
his invitation to do so.
As discussed above, this Court in Smith held that the appellant’s proposed
question was impermissible under Bomar, as it was “a question designed to elicit what
the jurors’ reactions might be when presented with a specific aggravating circumstance.”
Smith, 131 A.3d at 477. While Appellant relies on the dissent in Smith, that position was
16 Appellant also fails to acknowledge our decision in Commonwealth v. Mattison, 82 A.3d
386 (Pa. 2013), wherein the appellant claimed that the trial court erred during voir dire by
precluding him from asking potential jurors whether they would be adversely influenced,
or would otherwise be unable to follow the trial court’s instructions, upon learning the
appellant had a prior murder conviction in another state. The Commonwealth had offered
pretrial notice that, during the penalty phase of trial, it would rely on Mattison’s prior
murder conviction as evidence of an aggravating circumstance pursuant to 42 Pa.C.S. §
9711(d)(11). Like Appellant herein, Mattison argued that, because he was denied the
opportunity to life qualify the jury, he was denied his constitutional right to an impartial
jury in violation of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 9 of the Pennsylvania Constitution.
This Court rejected Mattison’s claim, concluding that he failed to demonstrate that
the trial court abused its discretion or “unduly limited voir dire by precluding questioning
that would have disclosed his previous murder conviction prior to the jury’s determination
of his guilt.” Mattison, 82 A.3d at 397. We observed that, rather than ensuring an impartial
jury, “permitting pretrial questioning of the potential jurors regarding [Mattison’s] 1995
murder conviction could have biased the jury against him, and laid the foundation for an
arguably meritorious claim of ineffective assistance of counsel on collateral review.” Id.
[J-58A-C-2018] - 20
not adopted by a majority of this Court. Accordingly, we hold that Appellant is not entitled
to relief based on his claim that he should have been permitted to question the jury
regarding his prior conviction for manslaughter in New York. 17
17Our learned colleague would overturn this Court’s decision in Smith. Specifically, in his
concurring and dissenting opinion, Justice Wecht suggests that this Court reached its
majority holding in Smith “without analysis,” and he aligns himself with Chief Justice
Saylor’s dissent in Smith, which this author joined. Concurring and Dissenting Opinion
(Wecht, J.) at 8-9. Recognizing that Appellant fails to discuss the majority holding in
Smith, Justice Wecht nonetheless opines that our “evaluation” of Appellant’s argument is
“unduly narrow,” and submits that Appellant’s “analysis” of Smith is “implicit in his
adoption of Chief Justice Saylor’s dissent, which demonstrated that the Smith majority
was incorrect.” Id. at 9. Further, citing his own concurring opinion in Balentine v. Chester
Water Auth., 191 A.3d 799, 812 (Pa. 2018) (Wecht, J., concurring) (“[A]gainst the critical
importance of stability we must balance our duty as a court of last resort to refine or even
abandon precedent when time and experience reveal its infirmity.”), Justice Wecht
suggests that we can, and should, overturn Smith, despite the fact that Appellant does
not ask us to do so. Concurring and Dissenting Opinion (Wecht, J.) at 9 & n.5. Finally,
acknowledging this Court’s earlier decision in Mattison, in which this Court also rejected
the same claim raised by Appellant herein, Justice Wecht remarks that, in Mattison, “the
Court did not examine the extra-jurisdictional precedent upon which [Appellant] now
relies. Accordingly, this Court presently is confronted with more developed and
persuasive advocacy on this issue than was available in Mattison.” Id. at 8 n.4.
It is not this Court’s function to act as an advocate for the parties. See
Commonwealth v. Capitolo, 498 A.2d 806, 811 (Pa. 1985) (“We require strict compliance
with the procedures designed for issue preservation to save judicial manpower, and to
prevent our appellate courts from becoming advocates for parties instead of adjudicators
of the issues they present for our review.”). Moreover, even if Appellant had presented
sufficient argument on the issue, we find no basis upon which to overturn Smith. Under
the venerable doctrine of stare decisis, “for the sake of certainty, a conclusion reached in
one case should be applied to those which follow, if the facts are substantially the same,
even though the parties may be different.” Commonwealth v. Moore, 103 A.3d 1240,
1249 (Pa. 2014) (citation omitted). Stare decisis serves an important role by “promot[ing]
the evenhanded, predictable, and consistent development of legal principles, foster[ing]
reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of
the judicial process.” Id. As discussed above, the majority in Smith held that the
appellant’s proposed question was impermissible under Bomar. Smith, 131 A.3d at 477.
Although Appellant and Justice Wecht prefer the approach of the dissent in Smith, that
position was rejected by a majority of this Court. Further, while, as a general matter, we
take no issue with Justice Wecht’s statement that this Court may “abandon precedent
when time and experience reveal its infirmity,” we observe that Smith was decided less
than five years ago, and neither Appellant, nor Justice Wecht, suggests that our
experience with Smith has revealed it to be unworkable, or that the decision is otherwise
[J-58A-C-2018] - 21
D. Prosecutor’s Questions Regarding Witness’s Knowledge of Appellate Process
Appellant next argues that the trial court erred in denying his request for a mistrial
during the penalty phase of his trial after the prosecutor asked an expert defense witness
if she was aware of the length of the appellate process. In his effort to obtain a life
sentence instead of the death penalty, Appellant presented the testimony of Dr. Annie
Steinberg, an expert in child psychology and development, who testified regarding
Appellant’s relationship with his children. Specifically, Dr. Steinberg testified that
Appellant was a central part of the children’s lives, and played an active part in the family,
notwithstanding his incarceration. During cross-examination, the prosecutor asked Dr.
Steinberg if she was aware that the same visitation procedures applied to both capital
and non-capital prisoners. N.T. Trial, 12/2/16, at 50-51. The prosecutor then asked Dr.
Steinberg if she was aware that, before a death warrant gets signed by the Governor, the
appellate process generally takes approximately ten years. Id. at 52. Defense counsel
objected, and the trial court sustained the objection. Id. at 52, 55. Appellant presently
argues that the only “possible purpose [of the prosecutor’s comment on the appellate
process] was to instill a sentiment among the jurors that they were less responsible for
their sentencing decision,” in violation of case law which prohibits the same. Appellant’s
Brief at 22.
In response to Appellant’s argument, the Commonwealth asserts that Appellant
waived this claim by failing to raise it before the trial court. The Commonwealth notes
that, while Appellant requested a mistrial on December 5, 2016, the request was not
based on the prosecutor’s question regarding the length of the appellate process, but,
rather, was based on the prosecutor’s alleged misstatement of the regulations concerning
infirm. Notably, none of the decisions Justice Wecht cites in support of his position post-
date Smith. At most, Justice Wecht’s view represents a difference of opinion regarding
precedent of very recent vintage.
[J-58A-C-2018] - 22
the visitation status of prisoners on death row. Indeed, although the trial court denied
Appellant’s request for a mistrial at that time, it did instruct the jury as to the differences
between visitation afforded to capital versus non-capital defendants. N.T. Trial, 12/5/16,
at 35.
As discussed above, where an appellant raises an objection before the trial court
on specific grounds, only those grounds are preserved for appeal. As Appellant did not
request a mistrial based on the prosecutor’s commentary regarding the length of the
appeals process, this claim is waived. See Cash, 137 A.3d at 1275; Pa.R.A.P. 302(a).
E. Prosecutor’s Statements Regarding Mitigating Circumstances
Appellant next claims that he was deprived of a fair penalty phase trial, and is
entitled to a new penalty trial, because the prosecutor, on two separate occasions,
misstated the law regarding the weighing of aggravating and mitigating circumstances.
The first alleged instance occurred at the beginning of the prosecutor’s closing argument
to the jury, wherein she stated, “If you find that we’ve proven a single aggravating factor,
one single aggravating factor, your sentence must be death. Unless and until the defense
proves a mitigating factor, at which point you must weigh the two and decide which
outweighs the other one.” N.T. Trial, 12/6/16, at 139. Appellant maintains that “[t]hese
remarks mislead the jury as to their starting point in deliberations, thereby irreparably
tainting any subsequent verdict.” Appellant’s Brief at 22.
The Commonwealth concedes that the above statement was incorrect because
the prosecutor did not convey that a jury’s finding of a single aggravating circumstance
requires a sentence of death only when the jury finds no mitigating circumstances.
Commonwealth Brief at 38. However, the Commonwealth maintains that the Appellant’s
claim that he was deprived of a fair penalty trial is both waived and meritless. We agree.
[J-58A-C-2018] - 23
Immediately after the prosecutor made the above statement, defense counsel
lodged an objection, which was sustained by the trial court. The prosecutor then correctly
stated to the jury: “You must decide whether or not the aggravating factors outweigh the
mitigating circumstances. And if you do, then your sentence is death.” N.T. Trial, 12/6/16,
at 139. Defense counsel did not request a mistrial at this time. Accordingly, Appellant
cannot claim for the first time on appeal that a mistrial was required. Commonwealth v.
Jones, 460 A.2d 739, 741 (Pa. 1983) (where defense counsel immediately lodges an
objection to a statement by the prosecutor, and the objection is sustained, and defense
counsel makes no further request for a mistrial or curative instructions, the issue has been
waived).
Appellant argues that the prosecutor subsequently “compounded” her prior error
by “informing the jury that it was defendant’s burden to prove that mitigating
circumstances outweighed any aggravating circumstances.” Appellant’s Brief at 23. In
commenting on the lack of “real” mitigation evidence presented by Appellant, the
prosecutor stated, “It’s what we call the catchall. The catchall. Which has to do with the
defendant; which has to do with the circumstances of the offense, the defendant’s record,
and his character. That’s what they are proposing is enough to outweigh, to outweigh all
of the aggravators.” N.T. Trial, 12/6/16, at 147. Defense counsel again immediately
lodged an objection, which was sustained by the trial court. The trial court further
instructed the jury that “[t]he mitigators do not have to outweigh the aggravators.
Sustained.” Id.
Once again, because defense counsel lodged an immediate objection to the
prosecutor’s misstatement, which was sustained by the trial court, and defense counsel
did not request a mistrial or further curative instructions, the issue has been waived.
Jones, 460 A.2d at 741.
[J-58A-C-2018] - 24
F. Exclusion of Portion of Decedent’s Family’s Victim Impact Statement
Prior to the Commonwealth’s presentation of its penalty-phase case, and while
otherwise seeking to introduce victim impact statements by members of Kevin’s and Viet’s
family, the Commonwealth moved to exclude a portion of two identical statements
wherein the family did not express a preference as to whether Appellant would receive a
life sentence or a death sentence, so long as he was never released from prison. In this
regard, each statement provided:
In the interests of justice and the safety of our community, I’m
asking that you please see it that the defendant never again
be able to take the life of any other persons; that he be given
the death penalty, or at least jailed for two life sentences, to
be served one after the other. He should never again walk
among us as an equal, free man.
N.T. Trial, 12/5/16, at 11-12. Appellant objected to the exclusion of these portions of the
statements, which, according to Appellant, “would have constituted a powerful reminder
to the jurors to keep an open mind and consider both life and death.” Appellant’s Brief at
24.
In granting the Commonwealth’s request to exclude the above-quoted portions of
the victim impact statements, the trial court determined that the proffered statements were
outside the scope of permissible victim evidence. We find no error by the trial court in
this regard. Victim impact evidence consists of “evidence concerning the victim and the
impact that the death of the victim has had on the family of the victim.” Bomar, 826 A.2d
at 850 (citations omitted). In the case sub judice, the proffered testimony did not pertain
to any characteristic of the victims, or the impact of their death on their families. Moreover,
we specifically held in Bomar that “evidence that a member of the victim’s family is
opposed to the death penalty is irrelevant under Pennsylvania’s capital sentencing
scheme,” as it is unrelated to the defendant’s “character or record or the circumstances
of the crime.” Id. at 852. Accordingly, Appellant is not entitled to relief on this claim.
[J-58A-C-2018] - 25
G. Challenges to Pennsylvania’s Death Penalty Statute
Next, Appellant raises two challenges to Pennsylvania’s capital sentencing statute,
42 Pa.C.S. § 9711. He first contends that the statute violates the Fifth18 and Sixth
Amendments to the United States Constitution, and Article I, Sections 6 and 9 of the
Pennsylvania Constitution, because it “permits a jury to make a factual finding in the
absence of proof beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating circumstances.” Appellant’s Brief at 24. The Commonwealth
asserts that Appellant’s argument is without merit,19 a position with which we agree.
In Apprendi v. New Jersey, 530 U.S. 466, 494 (2000), the United States Supreme
Court held that any fact that increases a defendant’s sentence beyond the statutory
maximum authorized for a defendant’s crime is an element that must be submitted to the
jury. This requirement extends to capital punishment. See Ring v. Arizona, 536 U.S.
584, 608 (2002) (concluding that Arizona’s capital sentencing scheme violated Apprendi
because it allowed a judge, as opposed to a jury, to find the facts necessary to sentence
a defendant to death). Subsequently, in Alleyne v. United States, 570 U.S. 99, 112
(2013), the high Court held that Apprendi “applies with equal force to facts increasing [a]
mandatory minimum.”
Section 9711(a)(1) of Pennsylvania’s capital sentencing statute requires that,
following a conviction for first-degree murder, a separate hearing be conducted “in which
the jury shall determine whether the defendant shall be sentenced to death or life
18 The Fifth Amendment provides, in relevant part, that “[n]o person shall be . . . deprived
of life, liberty, or property without due process of law.” U.S. Const. amend. V.
19 Notwithstanding its multi-page argument that Appellant’s claim is without merit, see
Commonwealth Brief at 47-51, the Commonwealth summarily suggests at the end of its
argument that it is “troubling” that a capital jury in Pennsylvania is not instructed as to the
burden of proof in determining whether an aggravator outweighs a mitigator, and it further
requests that we reconsider whether, under Alleyne, it must be proven beyond a
reasonable doubt that aggravators outweigh mitigators. Id. at 51. For the reasons we
discuss infra, we reject this invitation.
[J-58A-C-2018] - 26
imprisonment.” 42 Pa.C.S. § 9711(a)(1). Moreover, Section 9711(c)(1)(iii) provides that
aggravating circumstances must be proven by the Commonwealth beyond a reasonable
doubt, while mitigating circumstances can be proven by the defendant by a mere
preponderance of the evidence. Id. § 9711(c)(1)(iii).
Finally, Section 9711(c)(1)(iv) allows for a sentence of death only where the jury
finds at least one aggravator and no mitigators, or finds that the aggravators outweigh the
mitigators. It is this subsection on which Appellant bases his argument that the capital
sentencing scheme is unconstitutional because it does not require that “all factual
determinations implicit in capital sentencing, including those regarding the relative weight
of aggravating and mitigating circumstances,” be established beyond a reasonable doubt.
Appellant’s Brief at 28 (emphasis added). This Court, however, has repeatedly rejected
this argument.
In Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005), the appellant similarly
argued that Pennsylvania’s death penalty statute violates the Sixth and Fourteenth
Amendments because it does not require the jury to find that the aggravating
circumstances outweigh the mitigating circumstances beyond a reasonable doubt. We
denied relief, noting that “this Court has consistently rejected the argument that the
Pennsylvania death penalty statute is invalid because it imposes no standards by which
a jury can weigh aggravating and mitigating circumstances.” Id. at 361 (citing
Commonwealth v. Bronshtein, 691 A.2d 907 (Pa. 1997), and Commonwealth v.
Zettlemoyer, 454 A.2d 927 (Pa. 1982)).
Subsequently, in Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013), the
appellant raised the identical argument raised in Roney, but asked this Court to
reconsider our holding in Roney in light of the decision of the Sixth Circuit Court of
Appeals in United States v. Gabrion, 648 F.3d 307 (6th Cir. 2001), where an analogous
[J-58A-C-2018] - 27
provision of the Federal Death Penalty Act of 1994, 18 U.S.C.S. § 3591, et seq., was
initially held by a federal circuit panel to be unconstitutional under Apprendi and Ring. We
declined to reconsider our determination in Roney, however, noting that the Sixth Circuit
had granted reargument en banc, after which it concluded that the reasonable doubt
standard does not apply to the weighing of aggravating and mitigating factors because
the weighing process is not a factual determination, but, rather, a “complex moral
judgment.” Sanchez, 82 A.3d at 985 (citing United States v. Gabrion, 719 F.3d 511(6th
Cir. 2013) (en banc)). Thus, we held in Sanchez that our decision in Roney was
controlling.
Most recently, in Commonwealth v. Wholaver, 177 A.3d 136, 172 (Pa. 2018), we
rejected the appellant’s claim that a trial court is required to instruct a jury that, in order to
sentence a defendant to death, it must determine that the aggravating factors outweigh
mitigating factors beyond a reasonable doubt, citing our decisions in Roney and Sanchez.
Appellant, however, suggests that our holding in Wholaver was incorrect because
it relied on Roney and Sanchez, both of which pre-date the United States Supreme
Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016). According to Appellant, the
high Court in Hurst “clarified for the first time that, where the weighing of facts in
aggravation and mitigation is a precursor to a death sentence, the Sixth Amendment
requires the State to prove, to a jury, beyond a reasonable doubt, that aggravating
circumstances outweigh mitigating circumstances.” Appellant’s Brief at 25 (citing Hurst,
136 S.Ct. at 621-22). Appellant misreads Hurst.
In Hurst, the appellant challenged the constitutionality of Florida’s capital
sentencing scheme, which provided for a recommendation regarding death by a penalty-
phase jury, but required a separate hearing by a judge to determine whether sufficient
aggravating circumstances existed to justify imposition of the death penalty. In holding
[J-58A-C-2018] - 28
that the sentencing scheme was unconstitutional, the high Court recounted its prior
holding in Ring, and stated:
The analysis the Ring Court applied to Arizona’s sentencing
scheme applies equally to Florida’s. Like Arizona at the time
of Ring, Florida does not require the jury to make the critical
findings necessary to impose the death penalty. Rather,
Florida requires a judge to find these facts. . . . Although
Florida incorporates an advisory jury verdict that Arizona
lacked, we have previously made clear that this distinction is
immaterial: “It is true that in Florida the jury recommends a
sentence, but it does not make specific factual findings with
regard to the existence of mitigating or aggravating
circumstances and its recommendation is not binding on the
trial judge. A Florida trial court no more has the assistance of
a jury’s findings of fact with respect to sentencing issues than
does a trial judge in Arizona.”
Hurst, 136 S.Ct. at 622 (citations omitted).
In response to an argument by the State that the mere recommendation by a jury
of a death sentence “necessarily included a finding of an aggravating circumstance,” thus
satisfying Ring, the Court stated:
The State fails to appreciate the central and singular role the
judge plays under Florida law. As described above and by the
Florida Supreme Court, the Florida sentencing statute does
not make a defendant eligible for death until “findings by the
court that such person shall be punished by death.” Fla. Stat.
§ 775.082(1) (emphasis added). The trial court alone must
find “the facts … [t]hat sufficient aggravating circumstances
exist” and “[t]hat there are insufficient mitigating
circumstances to outweigh the aggravating circumstances.” §
921.141(3). . . . The State cannot now treat the advisory
recommendation by the jury as the necessary factual finding
that Ring requires.
Hurst, 136 S.Ct. at 622 (emphasis original).
The Hurst Court determined that Florida’s capital sentencing scheme violated the
Sixth Amendment because it required a judge, as opposed to a jury, to make the critical
findings needed for the imposition of a death sentence. Hurst did not, contrary to
[J-58A-C-2018] - 29
Appellant’s argument, require that, in order to conclude that a sentence of death is
appropriate, a jury determine that the aggravating circumstances outweigh the mitigating
circumstances beyond a reasonable doubt.
In light of our rejection of Appellant’s argument that a jury is required to determine
that the aggravating circumstances outweigh the mitigating circumstances beyond a
reasonable doubt, his derivative argument that the trial court’s failure to instruct the jury
in accordance with this principle violated his rights under the federal and Pennsylvania
Constitutions also is without merit.
In his second challenge to Pennsylvania’s death penalty scheme, Appellant
contends that the death penalty is administered in an “arbitrary and capricious” manner,
in that it is “no longer reserved for the worst offenders culpable of the most serious
offenses but, rather, in large part, is imposed on defendants who refuse to offer, or accept,
a life plea.” Appellant’s Brief at 29. According to Appellant, use of the death penalty as
a “bargaining chip” to secure a defendant’s plea of guilty does not further the traditional
“retributivist view” of punishment, but instead has a “perverse impact on the criminal
justice system,” in that it increases the possibility that an innocent defendant will plead
guilty to avoid a potential capital sentence, and increases the possibility that individuals
sentenced to death are actually innocent. Id. at 35-36. Appellant also suggests that many
of the individuals who choose to go to trial instead of pleading guilty, and who may
ultimately be sentenced to death, are “too encumbered by mental illness, intellectual
limitations, or too immature to offer or accept a plea to life without parole.” Id. at 39. In
support of his arguments, Appellant relies on numerous surveys from other states, and
various newspaper, magazine, and law review articles.
The Commonwealth responds that Appellant waived his claim by failing to present
any of the authority on which his claim is based to the trial court. The Commonwealth
[J-58A-C-2018] - 30
further contends that Appellant fails to demonstrate how any of the argument or
information he offers is relevant to either his conviction or sentence. We agree with the
Commonwealth that Appellant’s claim is waived. Appellant, in his pre-penalty-phase
“Motion to Hold the Pennsylvania Death Penalty Statute Unconstitutional and Strike the
Commonwealth’s Notice of Death,” did not claim that the death penalty is administered in
an arbitrary and capricious manner.20 See Motion, 12/1/16 (R.R. at 2-19). Indeed, he
first raised this particular claim in his Concise Statement of Errors Complained of on
Appeal, after filing his notice of appeal. As noted above, issues not raised in the lower
court are waived, and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). 21
H. Statutory Review of Death Sentence
Finally, although Appellant does not raise the issue in his brief, this Court is
statutorily required to conduct an independent review to determine (1) whether the
sentence of death was the product of passion, prejudice, or any other arbitrary factor; or
(2) if the evidence fails to support the finding of at least one aggravating circumstance
listed in 42 Pa.C.S. § 9711(d). See 42 Pa.C.S. § 9711(h)(3) (requiring affirmance of the
sentence of death unless this Court concludes either of these two factors are present);
Commonwealth v. Ballard, 80 A.3d 380, 409-10 (Pa. 2013) (same).
20 Rather, as addressed above in Part II(G), Appellant argued that Pennsylvania’s death
penalty statute violates the Fifth and Sixth Amendments to the United States Constitution
because it allows a jury to make a factual finding in support of a death sentence in the
absence of proof beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating circumstances.
21 Nevertheless, we agree with the Commonwealth that Appellant does not suggest his
decision to go to trial was the result of his mental illness, intellectual limitations, or
immaturity, nor does he suggest that he was offered a plea of a life sentence that he
refused to accept. Indeed, as noted by the Commonwealth, Appellant fails to show that
the Commonwealth’s decision to seek a capital sentence “had any other basis than the
facts that gave rise to the jury’s finding of five aggravating circumstances.”
Commonwealth’s Brief at 54.
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Following a thorough review of the entire record in this case, we hold that
Appellant’s sentences of death were not the product of passion, prejudice, or any other
arbitrary factor, but, rather, were supported by the evidence that Appellant and/or his
unidentified co-conspirators/accomplices stabbed Kevin and Viet multiple times, bound
and gagged them, weighted them down, and threw them into the river with malice and the
specific intent to kill them. Moreover, the Commonwealth proved the following
aggravating factors beyond a reasonable doubt with respect to each victim: (1) the victim
was being held for ransom or reward, 42 Pa.C.S. § 9711(d)(3); (2) the offense was
committed during the perpetration of a felony, id. § 9711(d)(6); (3) the offense was
committed by means of torture, id. § 9711(d)(8); (4) Appellant had “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,” id. §
9711(d)(10); and (5) Appellant had been convicted of voluntary manslaughter, as defined
in 18 Pa.C.S. § 2503, committed in another jurisdiction either before or at the time of the
offense at issue, 42 Pa.C.S. § 9711(d)(12). The jury found a single mitigating
circumstance, the “catch-all mitigator,” id. § 9711(e)(8), and found that the aggravating
circumstances outweighed the mitigating circumstance.
As the jury found that the aggravating circumstances outweighed the mitigating
circumstance, Appellant’s sentences comply with the statutory mandate for the imposition
of a sentence of death. See id. § 9711(c)(1)(iv). Accordingly, there are no grounds upon
which to vacate Appellant’s death sentences pursuant to 42 Pa.C.S. § 9711(h)(3).
For all of the above reasons, we affirm Appellant’s convictions and sentences of
death.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Mundy join the
opinion.
[J-58A-C-2018] - 32
Justice Wecht files a concurring and dissenting opinion.
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