concurring and dissenting.
This author is perplexed by the Opinion Announcing the Judgment of the Court’s ability to recognize that the jury instruction regarding victim impact evidence is erroneous, yet find such error to be harmless in the context of a capital sentencing hearing where the sentence of death is imposed. Such a holding results in one down, and how many more defendants to go until the Court solidifies a procedure for the presentation of victim impact evidence that satisfies due process? I fear that day will never come. Accordingly, I dissent from that portion of the Opinion Announcing the Judgment of the Court that affirms Appellant’s judgment of sentence and would remand for a new sentencing hearing.1
As I warned in my dissenting opinion in Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001), the introduction of victim impact evidence unconstitutionally channels the jury’s deliberations toward examining the life of the victim, rather than the criminal act of the defendant. The circumstances of the instant case illustrate my point. Here, four witnesses were called upon to testify on behalf of the two murder victims. The victim impact witnesses testified as to the personal pain they had endured as a result of the murders. They explained in great detail how their daily lives had changed, describing sleepless nights, grim holidays and concerns for some of the children left fatherless by the killings. The Court has great concern for the tragic consequences arising from the commission of a criminal homicide and we are *216sympathetic to the sheer torment suffered by the families of the victims in this case and in many others. We have an obligation, however, to follow the law and adhere to the narrowly crafted sentencing scheme that is essential to avoid the capricious and arbitrary imposition of the death penalty.
The capital sentencing scheme was simply not crafted as a mechanism for an outpouring of victim’s grief, no matter how redacted, rehearsed or restricted the manner of presentation may be. The very nature of victim impact evidence is extremely prejudicial and could persuade a fair-minded juror in any capital case to resolve that the perpetrator of such sorrow be sentenced to death. Would the murders at issue be any less egregious if the victims were not upstanding citizens? Should Appellant be executed on the basis that a victim of his crime had children and family members who loved him? Or in the converse, should a perpetrator of a dastardly crime escape the ultimate penalty, that being death, simply because the victim was not the benefactor of friends, family, associates or loved ones? Query, then, where is the middle ground? I would choose life until such is resolved — for the whole purpose of the sentencing scheme, as noted supra, is to avoid the capricious and arbitrary imposition of death.
It appears that even the trial judge had concerns regarding misuse of the evidence in this regard as he cautioned the jury that the victim impact testimony can not be used “as a means of weighing the worth of [the] defendant against the worth of either or both victims in this case.” N.T. 12/16/98, pp. 12-13. Troubling concerns arise when adequate safeguards are not in place to prevent the jury from disrupting the careful weighing process constitutionally required to be employed during the penalty phase of a capital trial. Here, the Opinion Announcing the Judgment of the Court concedes that the jury was not properly instructed as to how, to consider the evidence, yet concludes that Appellant was not prejudiced thereby. I do not share the belief that the jury is capable of determining how to employ such evidence when the jurists of this Court have difficulty deciphering the same. Appellant should not be sent down the path towards execution with any doubt remain*217ing as to the jury’s ability to properly evaluate and weigh the evidence in support of the death penalty.
Accordingly, I would vacate the judgment of sentence of death and remand for a new sentencing hearing.
. I agree, however, that Appellant's conviction should be affirmed.