dissenting.
I respectfully dissent, as I believe that the trial court erred in excluding all of the Smith daughters’ testimony regarding their in-prison meeting with Appellant and would therefore give him a new penalty phase hearing.
In addressing Appellant’s claim, the majority limits its analysis to the statement of apology that Appellant made to the daughters during their visit. While I agree with the majority that Appellant’s actual out-of-court apology to the Smith daughters constituted hearsay and was therefore not admissible, I nevertheless believe that the daughters should have been allowed to testify in general terms about their visit *670with Appellant and that he appeared remorseful during that visit. Clearly, such testimony relating to the fact that the Smith daughters met with Appellant and what they observed first-hand during that meeting should not have been precluded on the basis that it was inadmissible hearsay. Rather, such direct observations were plainly relevant and therefore, as Appellant asserts, should have been admitted to support his contention that the catch-all mitigating circumstance applied to his case. See Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 918 (2004) (“The demeanor of a defendant, including his apparent remorse, is a proper factor to be considered by a jury in the sentencing phase of a capital case.”).
This conclusion is actually supported by Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), the case cited to by the majority in support of its conclusion that the daughters’ proposed testimony was inadmissible hearsay. In Young, this Court held that the appellant’s written letters to a nun to whom the appellant had expressed remorse were inadmissible hearsay given that the Commonwealth would not be able to cross-examine the appellant on their content. However, in Young, the nun, unlike the daughters here, was allowed to testify on behalf of the appellant and the Court specifically stated that the nun’s testimony was “in no way restricted, placed evidence of appellant’s character before the jury, and is not now in contention.” Id. at 1322. In fact, the Court made clear that the only issue before it was whether Appellant’s letters to the nun in which he expressed his remorse for the killings should have been admitted into evidence. Thus, while Young does indeed support the trial court’s ruling that Appellant’s out-of-court apology, like the letters in Young, was inadmissible on the basis that it was hearsay, it also supports the conclusion that the daughters here should have been allowed to testify about the fact that they met with Appellant as well as their personal impressions of Appellant’s character and remorsefulness from their meeting with him. As I believe Appellant is entitled to a penalty phase hearing in which the daughters can offer such testimony, I must dissent from the majority’s opinion effectively holding otherwise.