Commonwealth v. Stollar

Justice SAYLOR,

concurring.

I join the majority opinion in terms of its sufficiency analysis and its determination that the ineffectiveness claims are properly deferred to collateral review pursuant to Commonwealth v. Holmes, — Pa.-, 79 A.3d 562 (2013). I also support the outcome regarding Appellant’s claims concerning his right to testify, as well as our statutory review, albeit my reasoning differs.

First, I do not read Appellant’s arguments regarding his right to testify as positing that “only a theatrical performance would have been sufficient to attain his goals[.]” Majority Opinion, at 650. Rather, his contention seems to be that the remedy imposed by the trial court would not have alleviated that tribunal’s concerns, thereby failing to comport with the United States Supreme Court’s admonition that states “must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.” Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987), quoted in Brief for Appellant at 21. Nevertheless, I agree that the trial court ultimately acted within its discretion in placing reasonable boundaries upon the form of Appellant’s testimony, as it is required to do by evidentiary rule 611(a).

As for statutory review, see generally 42 Pa.C.S. § 9711(h)(3)© (precluding affir-mance of a death sentence that is the product of, inter alia, passion or prejudice), the present penalty-phase record gives me pause. It reflects testimony by a total of eight victim-impact witnesses, at least two of whom were minors (including a ten-year-old), comprising the entire penalty-phase presentation by the Commonwealth and more than half of all the penalty-phase testimony. While such evidence is legally permissible, it is nonetheless possible for an excessive accumulation of this type of testimony to introduce undue passion into the jurors’ penalty-phase deliberations.

In this regard, it is worth noting that the New Jersey Supreme Court has established procedural safeguards to ensure that victim-impact testimony comports with due process, and these safeguards include a proviso that only a single victim-impact witness is generally sufficient to serve the purpose of such testimony, and additionally, that the testimony of minors should be avoided. See State v. Muhammad, 145 N.J. 23, 678 A.2d 164,180 (1996). This Court summarized such provisions without endorsing them, see Commonwealth v. Means, 565 Pa. 309, 329 n. 7, 773 A.2d 143, 155 n. 7 (2001), albeit it did note that many other states have adopted similar safeguards. See id. at 331, 773 A.2d at 156. Accordingly, we are dependent on the sound administration of trial court discretion in maintaining appropriate and rational limitations.

In the present case, I believe the trial court, at the very least, has tested the boundaries. The sheer number of witnesses was potentially problematic and, at a minimum, should have alerted all involved in the trial to take extra precautions to ensure that the testimony remained within acceptable bounds. That did not happen. One witness, for example, described the horrors that would have ensued if, hypothetically, his four-year-old child had been present at the victim’s residence when the incident occurred. See *656NT., Feb. 21, 2008, at 370-71.1 Another gave the jury a recitation of the crime itself. See id. at 382-83.2 Still another opined about the appropriate punishment for Appellant. See id. at 397 (“[Sjhow Mr. Stollar that [the victim] had a right to live ... let Mr. Stollar reap the punishment that fits the crime... .”)• None of these topics are appropriate to victim-impact testimony, which “is defined as ‘evidence concerning the victim and the impact that the death of the victim has had on the family of the victim.’” Commonwealth v. Rega, 593 Pa. 659, 701, 933 A.2d 997, 1022 (2007) (quoting 42 Pa.C.S. § 9711(a)(2)).

With that said, Appellant’s challenge to the victim impact testimony is subsumed within his claim of deficient stewardship on the part of his penalty counsel, and, thus, I believe the appropriate prejudice assessment, if necessary, should be made at the postconviction stage. See generally Commonwealth v. May, 612 Pa. 505, 518, 31 A.3d 668, 676 (2011) (where counsel did not interpose a contemporaneous objection, indicating that allegedly problematic aspects of the penalty phase should be deferred to collateral review and handled within the framework of ineffective-assistance-of-counsel claims). I would, however, stress to the bench and bar that close adherence to defined parameters should be carefully observed consistent with this Court’s superintendency obligations in Pennsylvania’s death penalty regime.

Finally, and as an aside, with regard to the ineffectiveness claims I appreciate that the common pleas courts have had a difficult task in the assessment of the appropriate forum in which to address claims of deficient attorney stewardship, particularly during periods when this Court’s jurisprudence has been the subject of debate and transition. Cf. Commonwealth v. McGill, 574 Pa. 574, 586, 832 A.2d 1014, 1022 (2003) (acknowledging that the manner in which PCRA petitioners must plead and prove claims of ineffective assistance “has been a source of disagreement and confusion”). With the decision in Commonwealth v. Holmes, — Pa. -, 79 A.3d 562 (2013), it is my hope that we may now emerge from one such transition period.3

. "I've sat there this whole time and been horrified by the fact that [my son] could have been there. He would have been there. What would have happened to him if he would have been present in that house? Would he have been a victim, murdered like Jean, or possibly worse than that, been left at four-and-a-half-years-old to wander around the house until somebody came to help him and rescue him to look at his grandmother. Can a child that age ever recover from something like that? I don’t know. I’m trying to figure out as a family how we recover from that.”

. "My ... grandmother ... had her face smashed in the ground, repeatedly stomped on and pour her love and generosity all over her back porch in a pool of her own blood. She was stabbed to death. She was taken advantage of to the highest extreme and pulled back into her kitchen floor in her blood. She was dragged through her own blood making it look to all as if her love and care was never of any value ...”

.Although a post-sentence hearing was held, I do not believe that permitting Appellant to raise the same ineffectiveness claims in a PCRA petition will improperly "afford [him] the right to two collateral attacks.” Holmes, -Pa. at-, 79 A.3d at 575 (quoting Commonwealth v. Wright, 599 Pa. 270, 320 n. 22, 961 A.2d 119, 148 n. 22 (2008)). The hearing produced only minimal testimony from Appellant’s penalty-phase counsel, and the common pleas court summarily dismissed the post-sentence motions and treated the ineffectiveness claims generally in a cursory manner in its *657subsequent opinion. An orderly post-conviction proceeding should produce more appropriate judicial treatment.