Commonwealth v. Johnson

Justice SAYLOR,

concurring.

I concur in the result, but write separately to note my disagreement with several aspects of the majority’s analysis.

First, in Argument 15 (as renumbered by the majority), Appellant challenges the jury’s rejection of the stipulated mitigating circumstance that Appellant had no significant history of prior convictions. See 42 Pa.C.S. § 9711(e)(1). The majority rejects this claim based upon the observation that the controlling principles as stated in Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353 (1991), had not yet been modified by this Court’s subsequent decision in Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001).

Nevertheless, as an alternate basis for denying relief, the majority distinguishes Rizzuto, noting that there was only one *330murder at issue in that case, whereas the present matter involves a double homicide. This distinction is relevant, according to the majority, because the stipulation here at issue should only be viewed as pertaining to the victim that died first.1 Thus, as there was evidence that victim Gregory Banks died second, the jury acted within its discretion in rejecting the agreed-upon mitigator as to him. See Majority Opinion, at 582.

In Rizzuto, this Court held that, “where a mitigating circumstance is presented to the jury by stipulation, the jury is required by law to find that mitigating factor.” Such conclusion was based upon the observations that Pennsylvania’s capital sentencing scheme affirmatively requires a sentencing jury to find the existence of any proven mitigators, and that a stipulation acts as the legal equivalent of the requisite degree of proof. See id. at 72-74, 777 A.2d at 1088-89. Accordingly, the Court indicated that, upon stipulation, the existence of the mitigating factor becomes “ ‘law of the case,’ ” id. at 73, 777 A.2d at 1088 (quoting Parsonese v. Midland Nat’l Ins. Co., 550 Pa. 423, 426, 706 A.2d 814, 815 (1998)), and the jury lacks discretion to refuse to find it:

If we would grant the jury discretion to ignore stipulations of fact, we would be granting the right to arrive at a sentencing verdict in an arbitrary and capricious fashion. Such a conclusion would undercut the very purpose of the death penalty sentencing scheme developed by our General Assembly.

Rizzuto, 566 Pa. at 74, 777 A.2d at 1089.2

The majority now re-opens an avenue for the jury to reconsider, and reject, stipulated facts. Such position cannot, in my view, be reconciled with the strictures of Rizzuto. Accordingly, I would deny relief solely upon the basis that *331counsel was not ineffective for failure to anticipate the modification of Copenhefer.

Additionally, although the majority does not address it, there is another substantial aspect to Argument 15. In particular, Appellant avers that, even apart from any stipulation of the parties, the trial court erred by polling the jury as to why it rejected the Section 9711(e)(1) mitigator relative to Gregory, and then accepting its explanation that such rejection was due to evidence that Gregory died after victim Damon Banks. In this regard, Appellant asserts that the mitigating circumstance, by its terms, only applies to prior “convictions,” and that there is no dispute concerning the absence of such convictions regardless of which victim died first. Appellant contends that the jury “erred” by refusing to consider such mitigating evidence based upon the erroneous premise that the order of death of the two murder victims is determinative. He maintains that the trial court also erred when, after polling the jury and learning of its erroneous basis for rejecting the Section 9711(e)(1) mitigator with regard to Gregory, it failed to instruct the jury that the presence of this mitigator is independent of the order of death.

Whatever merit this underlying claim of trial error may have, it is waived and can only be presented in the context of an assertion of ineffective assistance. In his PCRA petition and in his brief to this Court, Appellant only asserts counsel’s ineffectiveness in the form of a boilerplate statement attached to the underlying claim of error, stating in a conclusory manner that all prior counsel were ineffective for failing to raise the error. As such undeveloped claims of prior counsel’s ineffectiveness are insufficient to satisfy the PCRA’s proof requirement, see Commonwealth v. Bond, 572 Pa. 588, 600, 819 A.2d 33, 39-40, 2002 WL 1958492, at *4 (Pa., Aug. 23, 2002), Appellant is not entitled to a new sentencing hearing based upon this claim.3

*332Finally, in disposing of Argument 17, the majority states that “[wjritten directions to the jury detailing the procedure for completing a verdict slip are not subject to interpretations that could potentially prejudice a defendant.” Majority Opinion, at 584. As I am unaware of any reason why it would be impossible for such jury instructions to contain harmful ambiguities, I cannot agree with the majority’s statement in this regard. Cf. Commonwealth v. DeHart, 539 Pa. 5, 25, 650 A.2d 38, 48 (1994) (vacating a death sentence where the verdict slip contained language that the jurors could have construed to require them to weigh the aggravators against each mitigator individually rather than all mitigators collectively). The challenged portion of the instruction sheet directed as follows:

IF YOU [sic] SENTENCE IS LIFE IMPRISONMENT, YOU SHOULD CHECK THE FINDING, C.l. OR C.2., WHICH EXPLAINS WHY YOUR JURY REJECTS THE DEATH PENALTY AND IMPOSES A LIFE SENTENCE. IF THE REASON FOR REJECTING THE DEATH PENALTY IS THAT ONE OR MORE JURORS FIND NO AGGRAVATING CIRCUMSTANCES, THEN CHECK C.l. IF THE REASON FOR REJECTING DEATH IS THAT, ALTHOUGH ALL JURORS AGREE ON AT LEAST ONE AGGRAVATING CIRCUMSTANCE, ONE OR MORE JURORS FIND THAT MITIGATING ARE NOT OUTWEIGHED BY AGGRAVATING CIRCUMSTANCES, THEN CHECK C.2.

See Order and Notice of Intent to Dismiss, dated February 23, 2001, at Exhibit A. Appellant claims that, by suggesting that the jury must “reject” the death penalty to sentence him to *333life, these instructions could have been understood to raise a presumption in favor of death, thereby improperly shifting the burden of persuasion to him.

According to Pennsylvania’s capital sentencing scheme, certain conditions must be met for death to be imposed, and, barring such conditions, the sentence defaults to life imprisonment.4 While this paradigm may be described in various different ways, the language employed by the challenged instruction sheet, whereby life is imposed if death is “rejected,” sufficiently comports with the statutory procedure. Notably, as well, by indicating that, where even one juror concludes that “mitigating are not outweighed by aggravating circumstances,” the instructions clarify that, where the mitigating and aggravating factors weigh equally, a sentence of life must be imposed. Accordingly, Appellant has not demonstrated that use of the instruction sheet prejudiced him.

Justice NIGRO joins this concurring opinion.

. Neither party contends that the stipulation, by its terms, contemplates any such restriction.

. Cf. Pennsylvania Suggested Standard Criminal Jury Instruction 3.17 (“When the district attorney and counsel for the defendant stipulate, that is when they agree, that a certain fact is true[,] their stipulation is evidence of that fact. You should regard the stipulated or agreed fact as proven." (emphasis added)).

. Although I concurred in the result in Bond and expressed reservations concerning the rubric employed by the majority to reject Bond’s ineffectiveness claims, I recognize that, as the lead opinion in that case garnered the votes of a majority of this Court, I am bound by principles *332of stare decisis to follow it. I read Bond as directing that claims of trial counsel ineffectiveness must be developed according to the factors identified in Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76 (1987), although, presently, pursuant to Commonwealth v. Williams, 566 Pa. 553, 567, 782 A.2d 517, 525 (2001), the Court still affords some latitude concerning claims involving ineffectiveness of direct appellate counsel. See Commonwealth v. Wharton, 571 Pa. 85, 109, 811 A.2d 978, 992 (2002) (Saylor, J., concurring) (recognizing that, "where a post-conviction petitioner obtained new counsel for purposes of direct appeal, the Court has not yet retreated from its expressed decision to afford a degree of latitude relative to layered claims of ineffectiveness”).

. The jury must sentence the defendant to death if it

unanimously finds at least one aggravating circumstance as specified in subsection (d) and no mitigating circumstances or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.

42 Pa.C.S. § 971 l(c)(l)(iv). The trial court so instructed the jury. See N.T. 11/26/97 at 1031-32.