[J-65-2020][M.O. – Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 786 CAP
:
Appellee : Appeal from the order dated 8/26/19,
: entered on 8/27/19, in the Court of
: Common Pleas, Allegheny County,
v. : Criminal Division at No. CP-02-CR-
: 0009056-2001
:
:
KENNETH HAIRSTON, :
:
Appellant : SUBMITTED: July 28, 2020
CONCURRING OPINION
JUSTICE SAYLOR DECIDED: April 29, 2021
I join Parts I and II(A) and (B) of the majority opinion, concur in the result relative
to the balance of the opinion, and write to the following points.
In Part II(C), the majority addresses Appellant’s arguments pertaining to alleged
assertions by the prosecutor that the sexual abuse that Appellant inflicted upon Chetia
Hurtt was itself an aggravating factor. The majority’s main response is that, “[i]n
repeatedly arguing about the significance of the abuse, the prosecutor was properly
arguing for the jury to find that Hairston had a significant history of violent felony
convictions and to give that factor weight when considering it alongside the mitigating
circumstances found.” Majority Opinion, slip op. at 30 (emphasis omitted).
While the majority’s assessment of the prosecutor’s intentions may be correct, I
find that he variously used loose and objectionable language in pursuing his objective.
As Appellant relates, the prosecutor specifically depicted “what that girl went through”
as being an aggravating circumstance in and of itself, rather than focusing on the
relevant convictions. Brief for Appellant at 56 (citing N.T., Apr. 18, 2002, at 197-198).
Along these lines, the prosecutor also stated, “[a]nd the third aggravating factor is
essentially the life of Chetia Hurtt[.]” N.T., Apr. 18, 2002, at 205. In my view, such
characterizations, on the prosecutor’s part, were misleading.
Significantly, at the point in his remarks where the prosecutor alluded to Ms.
Hurtt’s life, he was addressing the jurors’ selection decision (i.e., the balancing of
aggravating and mitigating circumstances), as opposed to their judgment about
Appellant’s eligibility to receive a death sentence (or their finding of specific aggravating
factors). See N.T., Apr. 18, 2002, at 205 (reflecting the prosecutor’s explanations,
leading up to his assertion that Ms. Hurtt’s life was an “aggravating factor,” and that “it is
a balancing factor,” . . . “[b]ecause even if you found five mitigating circumstances . . .
and only two aggravating ones . . ., it’s not a simple mathematical balancing test, the
five don’t always outweigh the two”). See generally Commonwealth v. Knight, 638 Pa.
407, 426-27, 156 A.3d 239, 250-51 (2016) (explaining the eligibility versus selection
aspects of a capital sentencing jury’s determinations).1 Thus, the prosecutor seemed to
1 It is important to bear in mind that Appellant’s arguments touch on -- and at times
conflate -- arguments made by the prosecutor relative to both the finding of the
aggravating circumstance involving significant history of violent felony convictions, see
42 Pa.C.S. §9711(d)(9), and the assessment of the impact of the killings on the murder
victims’ family, see id. §9711(c)(2). Notably, the prosecutor initially bifurcated his direct
examination of Ms. Hurtt at the penalty phase into two segments, corresponding to
these two distinct matters. First, he orchestrated the testimony to extensively address
the sexual assaults upon her in furtherance of the (d)(9) aggravator. See N.T., April 18,
2002, at 30-46. Then, overtly “changing gears,” the prosecutor addressed the impact of
the victims’ deaths upon Ms. Hurtt. Id. at 47-51. As detailed below, in some relevant
respects, but not others, the prosecutor’s arguments to the jury were similarly
bifurcated.
[J-65-2020][M.O. – Donohue, J.] - 2
regard Ms. Hurtt’s entire experience with Appellant’s abusive course of conduct --
regardless of whether or not that experience was reflected in the convictions offered for
the purpose of satisfying the (d)(9) aggravator -- as being relevant to the jurors selection
determination. Accord N.T., Apr. 18, 2002, at 205 (characterizing Ms. Hurtt as “the only
victim at the early stage of that significant history” of violent felony convictions).
Unfortunately, the trial court exacerbated this misperception by instructing the
jury as follows:
Chetia Hurtt, the victim of [the] crimes [underlying the
relevant felony convictions], has testified to other allegations,
to other offenses allegedly committed by the defendant that
have not resulted in separate felony convictions.
I have permitted this testimony for one reason and one
reason alone. If you should find beyond a reasonable doubt
that the four felonies that I have just listed establish [the
(d)(9)] aggravating circumstance, you may then consider Ms.
Hurtt’s testimony for the sole purpose of deciding how much
weight you give to this particular aggravating circumstance.
N.T., Apr. 18, 2002, at 229-230.
It appears that the prosecutor and the trial court may have been relying on the
provision of the capital sentencing statute authorizing jurors to consider victim-impact
evidence in the selection decision. As the majority explains, that provision directs:
The court shall instruct the jury that if it finds at least one
aggravating circumstance and at least one mitigating
circumstance, it shall consider, in weighing the aggravating
and mitigating circumstances, any evidence presented about
the victim and about the impact of the murder on the victim’s
family. The court shall also instruct the jury on any other
matter that may be just and proper under the circumstances.
[J-65-2020][M.O. – Donohue, J.] - 3
See 42 Pa.C.S. §9711(c)(2). The difficulty here is that the “victim” referred to in this
statutory provision is plainly the murder victim and not victims, such as Ms. Hurtt, of
felonies predicate to a Section 9711(d)(9) aggravation determination.2
Parenthetically, I have previously expressed a concern about the potential
prejudice involved in permitting the Commonwealth to present testimony from victims of
felonies predicate to the (d)(9) aggravator at the penalty phase of capital cases. I
reiterate those concerns here, as follows:
Injection of eyewitness testimony relative to an aggravator
merely centered on the fact of a conviction also fosters the
potential for mini-trials concerning collateral facts. While,
again, I recognize that the Commonwealth is to be afforded
some latitude to present factual circumstances underlying
previous convictions serving as aggravating circumstances, I
believe that the development should be subject to judicious
control by the trial courts and that the prosecution should be
required to employ a less problematic methodology (such as
introduction of the guilty plea colloquy).
Commonwealth v. Smith, 635 Pa. 38, 57, 131 A.3d 467, 478 (2015) (Saylor, J.,
dissenting).
Notably, in earlier death-penalty cases, the Court used to stress the non-
inflammatory means by which the Commonwealth adduced evidence of the underlying
circumstances. See, e.g., Commonwealth. v. Reid, 627 Pa. 151, 226, 99 A.3d 470,
2 Perhaps the prosecutor and the trial court were relying on the “just and proper”
catchall set forth in Section 9711(c)(2). But, in my judgment, the instruction that a jury
may consider non-statutory aggravating factors in its weighing determination relative to
a specific aggravating circumstance is materially indistinguishable from denominating
the non-statutory factors as a component of the aggravating circumstance in the first
instance. And I find it to be impermissible to expand on the prescribed aggravating
circumstances in such a fashion, in light of the Court’s constitutional obligation to
construe the capital sentencing statute narrowly. See Commonwealth v. Chapman, 635
Pa. 273, 286, 136 A.3d 126, 133 (2016) (citing Zant v. Stephens, 462 U.S. 862, 877,
103 S. Ct. 2733, 2742 (1983)).
[J-65-2020][M.O. – Donohue, J.] - 4
515–16 (2014) (“The detectives' testimony in the instant case was brief and
straightforward, and simply informed the jury of the events which led to the crimes of
which Appellant was convicted.”). From my own point of view (albeit recognizing that
more recent majority decisions have militated in a different direction), I find the
presentation of Ms. Hurtt’s extensive testimony about Appellant’s perpetration of
pervasive sexual crimes against her over an eight-year period to be substantially
problematic.
Returning to the claims as presented by Appellant, for the reasons previously
stated, I find that his contention that his trial counsel was ineffective for failing to object
to the prosecutor’s statements has arguable merit. Appellant, however, does not
identify what specific aspects of the extensive harm that he inflicted on Ms. Hurtt were
outside the realm of his criminal course of conduct from 1993 through 2001 that resulted
in his felony convictions for rape and involuntary deviate sexual intercourse. Moreover,
the weight of these convictions relative to a continuing course of atrociously abusive
conduct on the part of a putative caregiver committed over an eight-year period would
seem to eclipse any collateral comments Ms. Hurtt may have made during her
testimony. Thus, I conclude that Appellant has failed to demonstrate the essential
element of prejudice, which is integral to an ineffectiveness claim.
Additionally, I believe that it is important to separate the finding of a particular
aggravator -- here, a significant history of violent felony convictions under Section
9711(d)(9), as well as the weight to be attached to that specific aggravator -- from the
role of victim-impact evidence in the jury’s selection determination, which is not directly
associated with any specific aggravator. See 42 Pa.C.S. §9711(c)(2); accord supra
note 1. Because the prosecutor discussed the impact of Appellant’s sexual crimes on
Ms. Hurtt both in terms of (d)(9) aggravation (eligibility) and in terms of the weighing
[J-65-2020][M.O. – Donohue, J.] - 5
function (or selection), I find it significant to clarify that Ms. Hurtt’s “pain” to which the
prosecutor was referring in the relevant passage of his argument, was specifically
connected to the loss of her brother, whose picture (Commonwealth Exhibit 81) the
prosecutor expressly referred to in the relevant questioning. See N.T., Apr. 18, 2002, at
207; see also id. at 66-67. For this reason, I agree with the majority that these particular
comments went to the aspects of Ms. Hurtt’s testimony concerning the impact of the
death of a murder victim upon her as a family member and were thus proper under
Section 9711(c)(2). See Majority Opinion, slip op. at 32-33.
Finally, in resolving the final two issues in Parts II(D) and (E), to the extent that
the majority relies on the axiom that the facts and data underlying an expert’s opinion
need not be admitted into evidence, see Pa.R.E. 703,3 I note that there is a difference
between an expert witness’s recourse to facts and data relied on in the relevant field in
the abstract (for example, scientific studies supporting a physician’s conclusion about
general causation) and an expert’s treatment of case-specific, material factual
circumstances relevant to the particular assessment at hand. See, e.g., Harley-
Davidson Motor Co. v. Springettsbury Twp., 633 Pa. 139, 165–66, 124 A.3d 270, 286
(2015) (explaining that “[a]n expert cannot base his [or her] opinion upon facts which are
not warranted by the record” (quoting Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398,
3 The majority frames the applicable rule as prescribing that “the facts and data
underlying an expert’s opinion are admissible to explain how the expert reached his
conclusion.” Majority Opinion, slip op. at 38. The difficulty here, however, is that one of
Appellant’s complaints is that underlying “facts and data” (i.e., evidence of his juvenile
arrest) simply were not admitted into evidence. Moreover, relative to case-specific
circumstances impacting an expert’s opinion, I do not believe that courts should allow
the expert testimony to be employed as a conduit to put otherwise inadmissible
evidence before a jury. See infra. In this regard, it also does not seem to me to make a
difference to me whether the facts alluded to by the expert are gleaned from the report
of another. See Majority Opinion, slip op. at 37-38.
[J-65-2020][M.O. – Donohue, J.] - 6
404 (1968) (interlineations in original))); see also City of Phila. v. WCAB (Kriebel), 612
Pa. 6, 21, 29 A.3d 762, 771 (2011). In this respect, in many scenarios, absent salient
facts entered into the record, the expert’s opinion based on non-record facts would be
lacking in relevance.
I also have difficulty with experts specifically opining about the veracity of a
defendant’s assertions (albeit that certainly some diagnostic opinions rendered by
mental-health professionals will legitimately, implicitly touch on truthfulness). See
Majority Opinion, slip op. at 34-36.
Accordingly, I would also resolve these claims under the prejudice prong of the
ineffectiveness inquiry.
[J-65-2020][M.O. – Donohue, J.] - 7