Commonwealth v. Crawley

LARSEN, Justice,

concurring.

I join in the affirmance of appellant’s convictions and his judgments of sentence of death. I write separately for two reasons.

First, I write to make explicit what the majority opinion today implicitly holds. The majority determines that the prosecutor’s improper and prejudicial closing comments, exhorting the jury to sentence appellant to death in order to send a message to the judiciary, do not necessitate the vacation of appellant’s judgments of sentence of death. This ruling implicitly recognizes that the General Assembly has expressly directed this Court to affirm a sentence of death unless we determine that such improper commentary or some “passion, prejudice or any other arbitrary factor” has produced the sentence of death. The Sentencing Code provides:

*566In addition to its authority to correct errors at trial ... the Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.

42 Pa.C.S.A. § 9711(h)(2) and (3).

Because Mr. Crawley’s sentences of death were fully supported and required by the evidence of the horrifying intentional killings, several aggravating circumstances and no mitigating circumstances, and were not produced by the prosecutor’s improper comments, this. Court is required by statute to affirm his judgments of sentence of death. See Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986) and Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984).

My second reason for writing separately is because of my disagreement with the majority’s determination regarding the aggravating circumstance of committing the killings “by means of torture.” 42 Pa.C.S.A. § 9711(d)(8). As in the case of the prosecutor’s improper closing remarks during the sentencing hearing, I do not believe that the court's error in permitting Dr. Fillinger to give his opinion that the killing of Leslie Smith was committed by torture, produced the jury’s finding that the Commonwealth had proven that aggravating circumstance; nor do I believe that the Court's failure to give a more comprehensive definition of “torture” is fatal to the jury’s finding that the killings had been committed by means of torture. As I stated recently in Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987):

*567By anybody’s definition, appellant tortured his victim, and committed the offense of murder of the first degree by means of torture.
Perhaps in the abstract, or in another case, the evidence would not support the aggravating circumstance of “torture” where the trial court gave no elaboration on the meaning of that term to the jury and the jury was permitted to find such aggravating circumstance on sparse or speculative evidence of “torture.” This is not such a case, however. It is a case where the jury could have, and did, apply its common understanding of the word “torture” to the heinous facts before it to arrive at a fully supported determination that the offense had been committed by means of torture.
As the United States Supreme Court has stated in a related context, it “is neither possible nor desirable for a person to whom the state entrusts an important judgment to decide in a vacuum, as if he had no experiences.” Barclay v. Florida, 463 U.S. 939, 950 [103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134] (1983), If a court failed to instruct a jury on the legal meaning of negligence in a civil case, and the jury found a defendant negligent who had driven his car at 100 m.p.h. through a crowded pedestrian crossing against a red light, I do not believe we would require a new trial simply because the jury instruction regarding “negligence” was at its “bare bones minimum.” We could legitimately review the record and find any inadequacy in the instruction to be harmless. So too in the instant case, where the jury correctly applied its common understanding of the word “torture” and found the existence of that aggravating circumstance (§ 9711(d)(8)), and where the record demonstrates sufficient evidence to support that aggravating circumstance____

(Larsen, J., concurring and dissenting opinion). See also Justices McDermott’s and Papadakos’ concurring and dissenting opinions in Nelson).

PAPADAKOS and McDERMOTT, JJ., join in this concurring opinion.