concurring and dissenting.
I join that portion of the Opinion Announcing the Judgment of the Court disposing of Appellant’s guilt phase claims. I respectfully dissent from the decision of the lead opinion insofar as it affirms the sentence of death. I would remand for a new penalty hearing as I find the trial court’s instructions to the jury regarding victim impact evidence erroneous.
In this case, the trial court instructed the jury that victim impact evidence was tied to its consideration of mitigating evidence presented under the mitigating circumstance generically referred to as the “catch-all factor”. The “catch-all factor” is codified at 42 Pa.C.S. § 9711(e)(8), and provides for the introduction during the penalty phase of “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” The instruction given here stated in relevant part: “you may consider any presented victim impact testimony in determining the appropriate weight to be given to the mitigating catchall factor.” The verbiage used was taken directly from the decision of the New Jersey Supreme Court in State v. Muhammad, 145 N.J. 23, 678 A.2d 164 (1996).
In Muhammad, the New Jersey Supreme Court deliberated the constitutionality of a provision in the New Jersey Death Penalty Statute permitting the introduction of victim impact testimony. The New Jersey statute specifically links victim impact testimony to testimony concerning the character of the defendant:
When a defendant at a sentencing proceeding presents evidence of the defendant’s character or record pursuant to subparagraph (h) of paragraph (5) of this subsection [ (5)(h) reads: “Any other factor which is relevant to the defendant’s character or record or to the circumstances of the *218offense.”], the State may present evidence of the murder victim’s character and background and of the impact of the murder on the victim’s survivors. If the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds the existence of a mitigating factor pursuant to subparagraph (h) of paragraph (5) of this subsection, the jury may consider the victim and survivor evidence presented by the State pursuant to this paragraph in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection. As used in this paragraph “victim and survivor evidence” may include the display of a photograph of the victim taken before the homicide.
N.J.S.A. 2C:11-3c(6). The Muhammad court upheld the constitutionality of this provision and approved the use of jury instructions that enabled consideration of victim impact testimony as linked to testimony relevant to the character of the defendant. The decision in Muhammad was tied to the nature of the statutory scheme drafted by the New Jersey Legislature.
In Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001), this court considered the constitutionality of Pennsylvania legislation at 42 Pa.C.S. § 9711(a)(2), and (c)(2), permitting victim impact testimony in capital cases. Our review focused on the details of the statutory scheme as developed by the Pennsylvania legislature.
The Pennsylvania provision provides:
In the sentencing hearing, evidence concerning the victim and the impact that the'death of the victim has had on the family or the victim is admissible. Additionally, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed. Evidence shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e), and information concerning the victim and the impact that the death of the victim has had on the family of the victim. Evidence of aggravating cir*219cumstances shall be limited to those circumstances specified in subsection (d).
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.
42 Pa.C.S. § 9711(a)(2) and (c)(2).
The Pennsylvania statute is distinct from the New Jersey statute. The Pennsylvania statute does not intend victim impact evidence to be considered by the jury as a direct link and counterweight to mitigation evidence of the character of the accused. The legislative scheme in Pennsylvania permits a jury to consider victim impact evidence as part of the general deliberative process in reaching a conclusion on the moral culpability of a particular defendant. Means, 773 A.2d at 156 and 159.
Four justices joined in the opinion finding that the Pennsylvania statutory scheme was constitutionally sound as written.1 This court crafted a proposed jury instruction directing that victim impact testimony be considered in the overall scheme of concerns properly utilized by the jury in reaching a decision as to the appropriate penalty, reflecting the unique circumstances of the particular case. That instruction is as follows:
The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not evidence of a statutory aggravating circumstance and it cannot be a *220reason by itself to impose the death penalty. The introduction of victim impact evidence does not in' any way relieve the Commonwealth of its burden to prove beyond a reasonable doubt at least one aggravating circumstance. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt independent from the victim impact evidence, and if one or more jurors has found that one or more mitigating circumstances have been established by a preponderance of the evidence. Victim impact evidence is simply another method of informing you about the nature and circumstances of the crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather, victim impact evidence shows that the victim, like the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. The sentence you impose must be in accordance with the law as I instruct you and not based on sympathy, prejudice, emotion or public opinion and not based solely on victim impact.
Means, 773 A.2d at 158-59. In the related case of Commonwealth v. Natividad, 565 Pa. 348, 773 A.2d 167 (2001), an instruction similar in scope to the language proposed in Means was approved.
The Opinion Announcing the Judgment of the Court acknowledges that the charge given in this case reflects the balancing approach of New Jersey, rather than the concerns that prompted the legislation in Pennsylvania. However, the lead opinion finds no' prejudice to the defendant as it concludes that the charge as given was “more restrictive on the consideration of victim impact evidence than Pennsylvania law permits.” (Lead slip opinion at 29). I respectfully disagree with this conclusion.
*221Unlike the lead opinion, I do not assess the Pennsylvania and New Jersey victim impact statutes to be more or less restrictive than the other. Rather, I read the two statutes as offering distinct solutions to the question of how victim impact evidence should enter the deliberative process. The statutes reflect critical differences. Under the New Jersey approach, victim impact testimony can only be introduced in a case where the defendant has chosen to present evidence of his or her own character as a factor mitigating against the imposition of death. Thus, in the New Jersey system, a defendant can preclude introduction of victim impact testimony by choosing to forgo presentation of character testimony in mitigation.
In distinct contrast, in Pennsylvania victim impact evidence is not viewed as a counterweight to evidence of the defendant’s character. Instead, victim impact evidence is introduced as part of the texture of the case: it provides the jury with an identity for the victim and helps to foster a complete understanding of the foreseeable consequences of the defendant’s actions. Thus, in Pennsylvania, a defendant need never weigh the Hobson’s choice of forgoing relevant mitigation evidence in an effort to prohibit introduction of victim impact testimony.
The two approaches reflect conscious, yet differing, choices as to how the concept of victim impact evidence should be introduced within the deliberative process. In my opinion, the Pennsylvania approach is not more restrictive than the New Jersey approach, and neither confers any special benefit on a capital defendant. Nor can I agree with the conclusion of the majority that the New Jersey approach somehow offers a greater benefit to the defendant in a capital case.
Thus, I cannot conclude that by following the New Jersey approach in this case, the trial court caused no prejudice to the defendant. I therefore disagree with the lead opinion’s conclusion that the error was harmless. The Pennsylvania legislature made a decision as to the manner in which victim impact testimony should enter into a jury’s deliberation in a capital case. This court found that chosen approach constitutionally sound in Means. As the charge given herein does not reflect the proper deliberative use of victim impact testimony *222as intended by the statutory enactment at 42 Pa.C.S. § 9711(a)(2), upholding the instruction as given would contradict with the intended scheme of victim impact testimony our legislature designed. For this reason I would remand this case for a new penalty hearing with instructions to the jury consistent with those proposed in Means and approved in Natividad.
Accordingly, as to the penalty portion of the Opinion Announcing the Judgment of the Court, I dissent.
. The Opinion Announcing the Judgment of the Court was joined by Justice Castille, and Justice Newman; Justice Saylor filed a concurring opinion, joining that portion of the Opinion Announcing the Judgment of the court that pertains to the discussion of victim impact testimony herein. One of the dissenting Justices, Justice Nigro, opined that victim impact testimony should be tied to the "catch-all factor” under the Pennsylvania approach. (Means, 773 A.2d at 161, Nigro, J., dissenting).