Commonwealth v. Jordan

*337 CONCURRING OPINION

Chief Justice CASTILLE.

I join the Court’s mandate of affirmance, and I join the Majority Opinion itself, subject to the following two qualifications.

First, with regard to this Court’s self-imposed duty in capital direct appeals to independently review the sufficiency of the evidence for first-degree murder, the Majority confines its review to the evidence introduced at trial, without considering appellant’s plea of guilty to murder generally. This Court conducts sua sponte sufficiency review even in capital cases where a guilty plea encompasses the lead charge of first-degree murder. See Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 615 (2010); Commonwealth v. Singley, 582 Pa. 5, 868 A.2d 403, 408 (2005); Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 62 (2003) (“Safeguards exist to protect against an arbitrary imposition of the death sentence.... These protections act to prevent the imposition of a death sentence based solely upon a defendant’s proclamation of guilt.”). I recognize that, on occasion, the Court has assessed sufficiency without looking to the significance of the plea or the proffer supporting it, including in Flor, a decision I joined. Notably, however, both Fears and Singley looked also to the factual basis for the plea in assessing sufficiency, and this is obviously the better practice. Moreover, cases like this one have convinced me of the wisdom of the position of Mr. Justice Say-lor, as outlined in his concurrence in Commonwealth v. Frey, 588 Pa. 326, 904 A.2d 866 (2006):

I believe that a logical corollary of the Court’s decision to approve the acceptance of pleas of guilt to first-degree murder is the understanding that it simply may not always be possible to conduct traditional sufficiency review relative to the underlying conviction in pleas cases. Accordingly, in such cases it should be appropriate to center the obligatory review on the factual basis for the plea as developed during the course of the plea colloquy, in line with the general approach for reviewing pleas to other offenses, see generally Commonwealth v. Hines, 496 Pa. 555, 437 A.2d 1180 (1981).

Id. at 875 (Saylor, J., concurring).

Here, appellant entered a plea of guilty to murder generally, and the Commonwealth forwarded a supporting proffer. The proffer and plea alone — whose validity appellant does not challenge — establish all elements of first-degree murder but specific intent: appellant unlawfully killed Officer Cassidy and acted with malice in doing so. In my respectful view, our evaluation of sufficiency must encompass the plea.

Second, I have a number of concerns respecting appellant’s claim that the trial court erred in admitting victim impact testimony at the guilt phase, specifically the testimony of Judy Cassidy, the widow of Charles Cassidy, the Philadelphia Police Officer whom appellant murdered. At the outset of its analysis, the Majority poses the question as if the claim is that the entirety of Mrs. Cassidy’s testimony was objectionable as victim impact evidence. Majority Op. at 331. But, that is not the claim. The Commonwealth did not proffer (or defend) Mrs. Cassidy’s testimony as victim impact evidence, and the court below did not admit it as such. As the Majority later recognizes, Mrs. Cassidy’s testimony was admitted as life-in-being evidence and appellant never disputed, either below or here, that life-in-being testimony is admissible in a murder prosecution; instead, appellant’s claim is that the testimony went beyond life-in-being and encompassed victim impact. Appellant’s Brief at 24.1

*338In resolving the claim, however, the Majority again resorts to a less precise and moi’e absolute approach, apparently concluding that the trial court erred in admitting the entirety of Mrs. Cassidy’s testimony. This is obviously incorrect; those aspects of Mrs. Cassidy’s testimony encompassing life-in-being were properly admitted, and any error arises only from those aspects implicating victim impact. The job of policing the line between evidence of life-in-being and victim impact testimony obviously falls within the discretion of the trial court. The Majority’s inaccurate reframing of the issue necessarily recasts its review of the exercise of the trial court’s discretion. Mrs. Cassidy’s testimony in fact was admitted by the court as life-in-being evidence. Appellant’s preserved claim that the evidence digressed from life-in-being into victim impact does not alter the purpose for which the evidence was presented and admitted; it is, rather, an objection premised upon speculation at what the jui’y might do with evidence that was offered for life-in-being purposes but strayed beyond that purpose.2 This is a much narrower point. If the entirety of Mrs. Cassidy’s evidence was both irrelevant and harmless, as the Majority says, then the mere victim impact aspects of the testimony obviously were not prejudicial.

Finally, concerning life-in-being evidence, I write in response to the Majority’s notation in a footnote that the Court’s holding “should not be taken to imply that life-in-being testimony is never relevant to or never admissible in the degree-of-guilt phase of a murder trial,” as “[t]hat issue is not before us.” Majority Op. 333 n. 7. I could not agree more; indeed, the observation is so much the case that the Majority could ignore this non-issue entirely.

In an attempt to avoid the mischief this unnecessary footnote may invite, I write to explain why I am inclined to believe that it would be strange indeed for a murder defendant to claim — and appellant should be commended for not claiming — that a murder victim’s life-in-being can be rendered irrelevant by the defendant’s pleading strategy. When Officer Cassidy walked into a coffee shop on the morning of October 31, 2007 and unwittingly happened upon a robbery in progress, he was a person, a human being. He was neither an abstraction nor a mere prop for the *339future trial of the man who — caught on tape — ambushed and murdered him. Under settled and logical authority, evidence of his life-in-being is admissible at trial.

In this case, the Commonwealth pursued capital murder charges, and when appellant pled guilty to committing the murder “generally,” he did not acknowledge guilt of first-degree murder; his plea was strategic (and no doubt wise, given the videotape). Instead, appellant focused on defeating a verdict of first-degree murder or, failing that (as was likely, given the evidence), creating a platform for a penalty phase case in mitigation premised upon acceptance of responsibility. When the defendant insists that the Commonwealth carry its burden to establish the degree of murder to the jury, I do not believe that defense pleading strategy controls the Commonwealth’s ability to present its case in full. This case was about murder, so it necessarily encompassed the prior existence of Officer Cassidy.

When a defendant pleads guilty to murder generally, the Commonwealth does not concurrently waive its ability or duty to put on its case and prove the elements of first-degree murder beyond a reasonable doubt, a point this Court has addressed in the capital context: “[T]he Commonwealth has some flexibility in proving its case. See Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (“[A] criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.”).” Commonwealth v. Philistin, 53 A.3d 1, 14 n. 8 (Pa.2012). Similarly, we have recognized that, “a criminal defendant does not have the right to have all evidence presented against him at trial sanitized of anything that could cause jurors to sympathize with the victim or his family.” Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 807 (2007). Indeed, the fact that a person has been killed is rarely challenged in a murder prosecution. And, even aside from the partial guilty plea scenario, in cases where there is a dead body and proof of criminal agency, it costs a defendant nothing to admit or stipulate that the victim has died. I do not believe that pleas or stipulations to the fact of the victim’s death render life-in-being testimony irrelevant. Certainly, the trial court, in its discretion, can rein in and channel the Commonwealth’s proof. Nevertheless; evidence going to elements of the crime placed before the jury is not inadmissible, even if certain of the elements are strategically uncontested.

. In die notes of testimony, the references are to “life and being.” In modern usage, the common term is "life in being.” The references below, while archaic, are not necessarily incorrect:

Strange as it may seem, for anything appearing in this record, Guiseppe Visalli may still be in full life and being.... The circumstances established unmistakably a felonious killing, and from the number and character of the wounds, 16 in all, might be derived every element of murder in the first degree. Was this the body of Guiseppe Visalli? Except as it was so shown, the corpus delicti laid in the indictment was not established, and the prisoner ought not to have been convicted.

Commonwealth v. Ronello, 242 Pa. 381, 89 A. 553, 553-54 (1913) (citation omitted and emphasis added) (murder victim consistently referred to in record of trial as "Joe Wilson," but body was never positively identified as "Guiseppe Visalli,” the name that appeared on the indictment).

. In a footnote that is in some unresolved tension with its analysis in text, the Majority states that it "simply concluded] ... that Mrs. Cassidy’s emotional and heart-rending testimony was proffered primarily to engender sympathy for the fallen officer and his family.” Majority Op. n. 7. Although I agree that Mrs. Cassidy's life-in-being testimony spilled over into victim impact, rendering aspects of it objectionable, the trial court never found that such was its "primary purpose,” and I do not join in the Majority’s speculation concerning the motivation of the Commonwealth.