Commonwealth v. Basemore

OPINION OF THE COURT

LARSEN, Justice.

On May 3, 1988, Appellant, William Basemore was convicted by a jury of murder of the first degree, robbery, burglary and possession of an instrument of crime. On May 4, 1988, a sentencing hearing was held pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711, and the jury unanimously sentenced Basemore to death.1 On February 15, 1989, post-trial motions were argued by counsel and denied *518by the trial judge, who formally sentenced Basemore to death.2 This direct appeal followed.

Although, Appellant does not raise the issue, pursuant to this Court’s decision in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983) we are required to review all death penalty cases for the sufficiency of the evidence to sustain a conviction for murder of the first degree.

Viewing the evidence in the light most favorable to the Commonwealth, the record reveals the following facts: Two days before Christmas, on December 23, 1986, a burglary, robbery, and murder occurred at the Riverfront Dinner Theater (the Riverfront) in Philadelphia, Pennsylvania. Appellant, who had previously been employed at the Riverfront as a pantry worker but had been fired in November of 1986, entered the restaurant by removing the slats from a window in the men’s room in the rear of the building. After entering the building, Appellant placed a chair under the window and used a homemade hook device to lift an acetylene tank, an oxygen tank, a cutting torch, martial arts weapons3 and other equipment (a wrench, safety goggles and a striker which is used for lighting torches) into the building. Appellant confronted George Weiss, an elderly security guard who was working the “graveyard shift” at the Riverfront, in the reservation office where Weiss was watching television. Appellant brutally attacked and murdered the deceased who made an *519effort to defend himself, but proved no match for Appellant and his martial arts weapons.4

Appellant then dragged the body into the sales office of the Riverfront where a safe was located. Appellant used a cutting torch, fueled by oxygen and acetylene, to burn a hole into the top of the safe. The content of the safe caught fire and was doused with water. Appellant took from the safe money and imitation gold coins inscribed with the name of the company that owned the restaurant (Tabas Enterprises) which were sold as gift certificates, and fled the premises. In fleeing, Appellant left behind the murder weapons, the acetylene and oxygen tanks and the aforementioned other equipment.

The deceased’s body was discovered in the early morning on December 24, 1986, in the sales office. The deceased was found lying on his back with his legs spread apart, a chair resting on top of him and his clothing pushed up under his arms exposing his chest and stomach. A bloodstained knife was found entangled in the clothing. In the sales office the police also discovered the acetylene and oxygen tanks, the homemade ten-inch spear, made of a wooden pole with a martial arts throwing knife attached to one end with black electrical tape, and a martial arts throwing star attached to the other end with yellow synthetic *520rope. Charred currency was found near the safe along with charred boxes that had previously contained the “gold coins gift certificates”. In the reservation office the police found a wrench, safety goggles, and a striker which is used for lighting welding torches. In the men’s bathroom (the point of entry) a chair was discovered underneath the bathroom window. Under the chair was a mesh-type sling made from yellow synthetic rope held together with black electrical tape. In the hallway at the north end of the building the police discovered a curtain rod with a hook device taped to one end with silver duct tape.

The police initiated their investigation by tracing the serial numbers from the fuel tanks to the Woodland Oxygen Company, a retail store which sells cylinders, gasses, welding supplies and equipment. The business records and receipts at the Woodland Oxygen Company showed that Appellant purchased acetylene bottles on November 24, 1986, and an oxygen tank on December 10, 1986, which he brought back to the store on December 11, 1986, for repair. The police also traced the martial arts weapons found at the Riverfront to the Asian Martial Arts World store. Employees from both the Woodland Oxygen Company and Asian Martial Arts World stores picked Appellant out of a photo array and later identified him at trial as a customer.

A search warrant and an arrest warrant were authorized and executed at Appellant’s residence. Appellant was present in the residence when the police arrived but diverted their attention by stating that he was the boyfriend of Appellant’s sister and that the last time he saw Basemore (Appellant), Basemore was sleeping on the living room couch at 3:00 a.m. TT., April 27, 1988, p. 290-291. The police ascertained Appellant’s identity after noticing a distinguishing scar on his left forearm and placed him under arrest. Appellant then blurted out that “he worked at the Riverfront and there’s lot of shit going down there and he wanted to tell [the police] about it”. TT., April 27, 1988, p. 294.

*521While executing the search warrant, the police found two shoe boxes hidden in Appellant’s bedroom under a bureau, containing all but four of the “gold coin gift certificates” missing from the Riverfront. (The gift certificates were identified by serial number.) Located in a bureau drawer was a receipt dated December 10, 1986, from the Woodland Oxygen Company listing Appellant’s name and indicating the purchase of a “set for oxygen service” and an adapter. A wallet hidden under a bed contained a twenty-five dollar ($25.00) “gold coin gift certificate” and identification cards belonging to Appellant. A footlocker in the bedroom contained ninety dollars ($90.00) in charred United States currency. In Appellant’s mother’s bedroom under a mattress the police found several knives wrapped in newspaper. Attached to one of the knives was yellow cord similar to the cord used on the sling device and spear found at the Riverfront. Some of the knives were wrapped with black electrical tape in a manner similar to the weapons found at the Riverfront. In the basement at Appellant’s residence the police discovered numerous martial arts weapons including a homemade spear made of a wooden pole with a martial arts throwing knife attached to one end with black electrical tape, and a martial arts throwing star attached to the other end with yellow synthetic rope — a replica of the spear found at the Riverfront. The police also found blood stained overalls which were later tested and showed the presence of blood consistent with the blood type of the victim, George Weiss. (Weiss’ clothing was also tested and showed the presence of blood consistent with the blood type of Appellant.)

Based upon the foregoing evidence, we find that the evidence was sufficient to support the jury’s verdict of first degree murder beyond a reasonable doubt.

In this appeal Appellant raises six issues for our review. Appellant initially argues that he was denied a fair trial because the trial court refused to grant his request for a continuance to obtain new court-appointed counsel.

*522The decision of whether to grant a request for a change of counsel is a matter vested to the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975), Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987). Our rules of criminal procedure provide that “[a] motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for- substantial reasons”. Pa.R.Crim.Pro. 316(c). See also, Williams, supra.

In Commonwealth v. Szuchon, 506 Pa. 228, 248, 484 A.2d 1365, 1376 (1984), quoting, Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), this Court determined that while a criminal defendant has a constitutionally guaranteed right to be represented by counsel of his own choosing that right is not “absolute”. We stated that the defendant’s right to choose his own counsel “must be weighed against and may be reasonably restricted by the State’s interest in the swift and efficient administration of criminal justice”. Commonwealth v. Szuchon, 506 Pa. at 249, 484 A.2d at 1377, quoting Moore v. Jamieson, 451 Pa. 299, 308, 306 A.2d 283, 288 (1973).

In Szuchon, a capital case, the defendant refuséd court appointed counsel until one week before trial. He then refused to co-operate with court appointed counsel until several days before trial and refused to waive his right to a speedy trial in order to allow counsel additional time to prepare a defense. In resolving Szuchon’s claim of ineffective assistance of counsel we stated:

Where a defendant knowingly and intelligently waives his right to counsel, or knowingly and intelligently refuses appointed counsel while insisting on privately retained counsel without taking steps to secure such private counsel, the defendant must be prepared to accept the consequences of his choice.

Id. 506 Pa. at 250, 484 A.2d at 1377. We held that under these circumstances the trial court is “justified in refusing to grant a continuance in order to allow the defendant *523additional time within which to obtain new counsel of his choice and the defendant may be deemed to have waived his right to counsel of his choice". Id. (emphasis added).

In this case, Appellant personally addressed the court on two separate occasions and requested a continuance stating that the defense investigation was not complete. At the same time defense counsel related that he was prepared to go to trial. The trial court denied Appellant’s requests for continuance.

On the third day of the proceedings before voir dire resumed, defense counsel advised the court that Appellant wanted to plead guilty in return for the Commonwealth’s recommendation that he be sentenced to life imprisonment. When the Court began to colloquy Appellant as to the voluntariness of his plea, Appellant asked for permission to address the court a third time. Permission was granted and Appellant, who had no intention of pleading guilty, fired court appointed counsel, stated that he wished to proceed pro se, and declared that he “would be more than happy to go to trial with the same case only with another attorney by [his] side”. TT., April 20, 1988, p. 171-172. Appellant added that counsel was “trying to sell [him] out” in advising him to plead guilty. Id. When Appellant was asked by the court whether he wished to represent himself he replied, “I want new counsel. You know as well as I do I don’t know nothing about no law. I need someone to represent me. I don’t have any counsel.” TT., April 20, 1988, pp. 180, 181.

Following this episode a conference was conducted in chambers with both counsel present. At this time defense counsel requested that the case be continued and that another attorney be appointed to represent Appellant. Defense counsel at the court’s request delineated the steps he had taken to prepare for trial. The trial court acknowledged defense counsel as “very effective and experienced, competent diligent counsel” who was prepared to proceed to trial. TT., April 20, 1988, p. 203. The court determined that Appellant did not wish to proceed pro se, and denied *524the request for a continuance to obtain new court-appointed counsel.

Clearly, the trial court did not abuse its discretion in refusing to grant the request for a continuance to obtain new court-appointed counsel when it was obvious that the request was only a ruse, designed to delay the inevitable — a trial on the charge of murder of the first degree. Appellant, in failing to take any steps to retain a private attorney, and in belatedly requesting a continuance and the appointment of new court-appointed counsel without setting forth substantial reasons therefore, waived his right to counsel of his choice.

Appellant next argues that the trial court erred in removing him from the courtroom during jury selection and trial.

The United States Constitution5 the Pennsylvania Constitution6 and Pennsylvania Rules of Criminal Procedure 1117(a)7 guarantee the right of an accused to be present in the courtroom at every stage of a criminal trial. However, in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the United States Supreme Court determined that the right to be present in the courtroom is not absolute and explicitly held,

that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct *525himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

Id. at 343, 90 S.Ct. at 1060-1061, 25 L.Ed.2d at 359. See also, Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976).

Appellant initially made it clear that he intended to disrupt the courtroom on the second day of the proceedings during voir dire when he stated:

Bring them in, you want to, go ahead. I’ll wait for them to come through the door____ If you want to bring those people in, bring them in but I tell you, you want to have a mockery today, you have to have a game today, you want to play, bring them in, I’ll wait.

TT., April 20, 1988, p. 171. When questioned by the trial judge, Appellant was unresponsive and attacked the trial judge asking him if he was “out for blood”, and if he had “wax” in his ears. TT., April 20, 1988, p. 183-184. Appellant threatened to disrupt the proceedings a second time and was warned by the trial judge that if he did so he would be removed from the courtroom. TT., April 20,1988, p. 185.

When jury selection resumed, Appellant made a third outburst, addressing a prospective juror as follows:

I have a question. Miss, this guy is not my lawyer. I fired him for ineffective counsel. I have civil suits filed against him. I’ve had him under surveillance for three months. They will not give me another lawyer. They trying to make me take their lawyer. He’s been lying the whole entire time. He is not my counsel. He have given me no paperwork. I do not know what’s going on and he is not my lawyer. I’m asking, I’m, begging do not take part in this charade because this man is not my lawyer. He is not. I fired him. It’s on the record but they will not give me another counsel. They trying to tell me I have to take him when I don’t have to do anything. He was going to sidebar quite a few times. Wouldn’t let me know. He told me I do not have any rights. He told me *526to take a deal for life in prison for something I did not do. I’m begging you not to take part in this charade.
* * * * * *
Mr. Stein is not my lawyer. He’s not my lawyer. Miss, don’t even listen to what he’s saying. Don’t waste your time. If you take part in this charade, my blood will be on you hands. He is not my lawyer. I’ve had him defaced.

TT., April 20, 1988, p. 191-192.

After a discussion in chambers with counsel, the trial judge in open court again warned Appellant that if he disrupted the proceedings he would be removed from the courtroom. The trial judge stated:

We are going to proceed with one more juror. If you disrupt the voir dire with regard to that juror, you will be removed from this courtroom and your trial will proceed in your absence.

TT., April 20, 1988, p. 204. Another prospective juror was questioned by counsel and Appellant blurted out: “I do not have a lawyer, and this man is — they trying to get me to take that character when I do not have a lawyer and it’s good that you’re going to be dismissed. Glad to hear it and you can let him go”. TT., April 20,1988, p. 208. The juror was excused and Appellant was, pursuant to the trial judge’s earlier warning, removed from the courtroom.

After an afternoon recess the trial commenced and Appellant was brought before the court. The trial judge explained to Appellant that he could return to the courtroom at any time, provided that he agreed not to disrupt the proceedings. The trial judge at this time encouraged Appellant to participate in his trial calling to mind the seriousness of the charges. Upon Appellant’s continued refusal, the trial judge determined that the trial would continue in his absence and, in an abundance of caution, directed the sheriff’s department to bring Appellant to the courtroom each day. The trial court also ordered the sheriff’s department to have a sheriff’s deputy with Appellant at all times so Appellant could notify the court in the event that he wished *527to return to the courtroom. The trial judge also directed defense counsel to meet with Appellant each morning and each afternoon to determine whether he wished to return to the courtroom. The trial judge also made arrangements so that Appellant could view the trial court by closed circuit television. Appellant monitored the trial each day and was brought into the courtroom briefly on several occasions for identification purposes. Finally, after having been removed from the courtroom on April 20, 1988, Appellant on May 3, 1988, agreed to conduct himself properly and returned to hear closing arguments.

In this case, the trial court displayed a great deal of patience and dignity in dealing with Appellant’s histrionics. More importantly, the court followed the guidelines set forth in Allen, supra, by warning Appellant before removing him from the courtroom and by giving Appellant the opportunity to return at any time provided he agreed to conduct himself properly. Additionally, as the Commonwealth points out in its brief, Appellant was not removed in the presence of prospective jurors and none of the jurors who served on the jury witnessed Appellant’s disruptive behavior. Moreover, the court advised prospective jurors that Appellant’s absence was unrelated to his guilt and questioned each juror to ensure that Appellant’s absence from the courtroom would not impact on their ability to be fair. Accordingly, we find that the court did not abuse its discretion in removing Appellant from the courtroom and that Appellant did not suffer any prejudice during the course of his trial due to his absence.

Appellant next argues that he was denied a fair trial because the jury was death-qualified which Appellant claims produces prosecution-prone juries.

The United States Supreme Court has held that “the Constitution does not prohibit the states from ‘death qualifying’ jurors in capital cases”. Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1764, 90 L.Ed.2d 137, 147 (1986). Most recently this Court, citing Lockhart, in Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590 (1990) *528rejected a capital defendant’s claim that he was deprived of a fair trial due to death qualification of the jury. In Bryant we reaffirmed our position that death-qualification does not produce prosecution prone juries. See also, Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985), Commonwealth v. Szuchon, 506 Pa. at 257, 484 A.2d at 1381.

Appellant next argues that trial counsel was ineffective in failing to object to four prejudicial statements made by the prosecutor during closing arguments at the sentencing hearing.

In capital cases, as in all criminal cases, the standard for determining the effectiveness of trial counsel’s performance is whether the underlying claim is of arguable merit, whether counsel’s performance was reasonable, (i.e. the course chosen by counsel has some reasonable basis to effectuate his client’s interest) and whether the defendant has demonstrated prejudice. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), see also, Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989). We find that Appellant’s assertions of ineffectiveness of counsel in regard to improper prosecutorial remarks, taken individually or together, are without merit.

The Sentencing Code provides that after “the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death”. 42 Pa.C.S.A. § 9711(a)(3). The Commonwealth, during the sentencing phase of a capital case, must be afforded “reasonable latitude” in arguing its position to the jury, Commonwealth v. Zettlemoyer, 500 Pa. at 55, 454 A.2d at 958, and may employ “oratorical flair” in arguing in favor of the death penalty, Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983) cert. denied 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984) reh’g denied 468 U.S. 1226, 105 S.Ct. 27, 82 L.Ed.2d 920 (1984).

Appellant asserts first that counsel was ineffective in failing to object to the following prosecutorial remark:

*529I think by your verdict yesterday and the speed with which you reached it shows to you clearly that aggravating circumstance is present, that the defendant in fact did kill Mr. Weiss in the perpetration of a felony.

TT., May 4, 1988, p. 873.

We reject appellant’s argument that the prosecutor improperly stated his opinion as to Appellant’s guilt in referring to the speed of the verdict and clear evidence of aggravating circumstance. After all, the jury had already made findings of fact with regard to the aggravating circumstance that “the defendant committed the killing while in the perpetration of a felony” by convicting Appellant of murder of the first degree, robbery and burglary. In Travaglia, we stated that “[t]he prosecutor’s statement of his personal belief in the [defendant’s] guilt can in no way be prejudicial where guilt has already been established.” Id. 502 Pa. at 502, 467 A.2d at 302.

We also reject Appellant’s second assertion that counsel’s failure to object to the prosecutor’s comment on the quality of his mitigation evidence constitutes ineffectiveness:

... it will be crystal clear to you that the Commonwealth has in fact proved beyond a reasonable doubt the one aggravating circumstance and that the fact that he was twenty-four and taught guitar and dance is not even a mitigating factor at all. It should not even be checked off but if you do want to give that as some sort of mitigation, God knows, that doesn’t mitigate and outweigh the horrible, horrible crime that occurred to Mr. Weiss, ...

TT., May 4, 1988, p. 879-880.

This court has held that a prosecutor may make a legitimate, unimpassioned response to evidence presented by the defendant to prove mitigating circumstances. See, Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152, 1157 (1986) (prosecutors properly argued that the defendant’s low intelligence did not excuse his criminal conduct), Com*530monwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988); (prosecutor properly argued that the defendant’s history of childhood epilepsy did not constitute a mitigating circumstance). In this case the prosecutor’s remarks that teaching guitar and dance were not mitigating factors and that, in the alternative, these factors did not outweigh the aggravating circumstance were fair comments on the evidence presented.

Similarly, Appellant’s third assertion that counsel was ineffective in failing to object to the prosecutor’s remark that the murder «was a “well thought out, carefully planned, execution”, TT., p. 874, is meritless. This court has previously permitted a prosecutor’s reference to a capital defendant as a systematic, brutal, calculating, killer, Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989) and a “clever, calculating and cunning, executioner”, Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987). We find the prosecutor’s remark in this case perfectly innocuous.

Additionally, we find no merit to Appellant’s fourth assertion that counsel was ineffective in failing to object to the following prosecutorial comment:

Now imagine the fear and also think about Mr. Weiss attempting to ward this vicious attack off. Where is the sympathy there?

TT., May 4, 1988, p. 876. This court has held that referring to the victim, remarking on the victim’s effort to prevent his or her death, and asking the jury to show the defendant the same sympathy he exhibited toward his victim, were not outside the bounds of permissible argument. See, Commonwealth v. Travaglia, 502 Pa. at 501, 467 A.2d at 301, Commonwealth v. Duffey, 519 Pa. at 371, 548 A.2d 1189.

Appellant argues next that trial counsel was ineffective in failing to present, during the penalty phase of the trial, the mitigating circumstance that Appellant “did not have a significant history of prior criminal convictions”. 42 Pa.C.S.A. § 9711(e)(1). Appellant’s argument in this regard *531is erroneously premised on the fact that his single prior conviction for robbery would not have been admissible if offered by the prosecution to rebut the evidence that Appellant did not have a significant history of prior criminal convictions.

Under Pennsylvania law, a single felony conviction for a crime of violence will not suffice to establish the aggravating circumstance that “the defendant has a significant history of felony convictions involving the use or threat of violence to the person” 42 Pa.C.S.A. § 9711(d)(9). Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985). However, in Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984), this court stated that “the trial court, correctly left it to the jury to determine” whether or not the defendant’s single prior conviction for robbery rebutted evidence of the mitigating circumstance that the defendant did not have a significant history of prior criminal convictions. Id., 506 Pa. at 238 fn. 4, 484 A.2d at 1370 fn. 4. Thus, a single prior criminal conviction is admissible to rebut the mitigating circumstance that the defendant does not have a significant history of prior criminal convictions.

Accordingly, in the present case trial counsel’s tactical decision not to present evidence of the mitigating circumstance that Appellant had no significant history of prior criminal convictions, was one reasonably designed to effectuate his client’s interest. Indeed, before the penalty hearing began defense counsel sought, and after extensive argument, obtained from the court, an advance ruling prohibiting the Commonwealth from introducing the evidence of Appellant’s prior conviction for robbery. If defense counsel had introduced evidence to prove the aforementioned mitigating circumstance he would have opened the door for the introduction of Appellant’s prior conviction for a similar felony — the gunpoint robbery of a former employer in 1986. Defense counsel’s belief that the disadvantage of the jury hearing about Appellant’s prior record far outweighed any advantage gained by introducing the lack of a significant history of prior criminal convictions was *532reasonable. Cf. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986) (counsel’s failure to present evidence of good character at trial or as evidence of mitigating circumstances at sentencing did not constitute ineffectiveness where counsel’s concern, that the potential harm from cross-examination of character witnesses outweighed the doubtful value of their testimony); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986) (trial counsel’s failure to present other character witnesses to establish mitigating circumstances not per se ineffective).

Appellant’s next argument is that the death penalty statute is unconstitutionally vague because it inadequately defines the terms “felony”, “significant”, and “torture” as used in the aggravating circumstances: the defendant committed a killing while in the perpetration of a felony, 42 Pa.C.S.A. § 9711(d)(6); the defendant has a significant history of felony conviction involving the use or threat of violence to the person, 42 Pa.C.S.A. § 9711(d)(9); and the offense was committed by means of torture, 42 Pa.C.S.A. § 9711(d)(8), respectively. Appellant finally argues that the statute is vague because it does not provide a standard for weighing aggravating and mitigating circumstances.

As to the term “felony” as used in the aggravating circumstance the defendant committed a killing while in the perpetration of a felony, it is clear that it is adequately defined by reference to our Crimes Code which specifically designates those crimes which are felonies. 18 Pa.C.S.A. § 101 et seq.

As to the terms “significant” and “torture” Appellant’s arguments must be rejected. We have consistently held that “a claimant cannot challenge the constitutionality of a statute abstractly”. Commonwealth v. Maxwell, 505 Pa. 152, 169, 477 A.2d 1309, 1318 (1984). See also, Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986). The Commonwealth in this case did not proceed with the aggravating circumstances that “the defendant has a significant history of prior felony convictions involving the *533use or threat of violence to the person,” 42 Pa.C.S.A. § 9711(d)(9) and that “the offense was committed by means of torture” 42 Pa.C.S.A. § 9711(d)(8) (emphasis added).

Similarly, Appellant’s argument that the death penalty statute is impermissibly vague in that it fails to provide a standard for weighing aggravating and mitigating circumstances must be rejected. The jury in this case found one aggravating circumstance and no mitigating circumstances and thus, was required to impose the death sentence. 42 Pa.C.S.A. § 9711(c)(l)(iv). Because the jury did not engage in the process of weighing aggravating and mitigating circumstances, Appellant’s argument is again made in the abstract.

Having reviewed the entire transcript of the proceedings including sentencing, we conclude that the sentence of death in this case was not the product of passion, prejudice or any other arbitrary factor, 42 Pa.C.S.A. § 9711(h)(3)(i), and that the evidence plainly supports the jury’s finding of the aggravating circumstance of killing while in the perpetration of a felony, to wit, the murder of George Weiss during the robbery and burglary of the Riverfront Dinner Theater. 42 Pa.C.S.A. § 9711(h)(3)(ii). After considering the circumstances of this crime, and the character and record of the accused 42 Pa.C.S.A. § 9711 (h)(3)(iii) together with the data and information compiled by the Administrative Office of Pennsylvania Courts as to the penalty imposed in similar cases, see, Commonwealth v. Frey, and appendix attached thereto, 504 Pa. 428, 475 A.2d 700 (1984), cert. denied 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984), we conclude that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases.

The judgment of sentence is affirmed.8

*534FLAHERTY, J., joined this Majority Opinion and filed a concurring Opinion. CAPPY, J., filed a concurring Opinion. ZAPPALA, J., filed a dissenting and concurring Opinion which was joined by NIX, C.J.

. At the sentencing hearing the Commonwealth offered one aggravating circumstance in support of the death penalty, that Appellant had committed the killing while in the perpetration of a felony. 42 Pa.C.S.A. § 9711(d)(6). The defense offered mitigation evidence including: the defendant’s age at the time of the crime (twenty-four) 42 Pa.C.S.A. § 9711(e)(4); and general evidence concerning the character of the defendant (that he had been involved in the community teaching drama, dance, and playing the guitar for children at the Young Women’s Christian Association and that he participated in raising his four year old son to whom he made financial contributions) 42 Pa.C.S.A. § 9711(e)(8).

. On the remaining charges Basemore was sentenced to the following concurrent terms: ten to twenty years for robbery; ten to twenty years for burglary; and two and one-half to five years for possession of an instrument of crime.

. These weapons included a knife and a homemade spear type weapon which was approximately three feet, ten inches long and consisted of a wooden pole wrapped with black electrical tape with a scaleless throwing knife attached to one end with tape and a four point "shuvkin” or throwing star attached to the other end with yellow synthetic rope.

. A forensic pathologist testified that Weiss sustained eight stab wounds of the body including the neck, chest, shoulder, left side of the body and left arm and suffered a number of slash wounds, cuts and scratches on his face, chin, right side of the chest, left wrist and left hand. One of the stab wounds was to the middle of Weiss’ neck in the area of the "Adams apple". A second stab wound to the right side of chest, near the base of the neck, revealed that the weapon was plunged into the body to its handle as evidenced by an additional scrape wound called a hilt mark. A stab wound to the shoulder went in a depth of five inches. Two additional stab wounds of the chest were made with such force that they went directly through the bone of the third and sixth ribs bending the knife. A fourth wound to the chest cut the cartilage of the fourth rib, went into the lower lobe of the right lung and penetrated the pericardial sac which surrounds the heart. A stab wound to the left forearm originated in the back of the arm and exited in the front of the arm. A three inch stab wound to the left palm, in addition to cuts to the thumb, webbing between the fingers, and palm, were described as defensive wounds. The pathologist testified that the cause of death was stab wounds to the neck, chest and upper left extremity.

. "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him____” U.S. Const. amend. VI.

. "In all criminal prosecutions, the accused hath a right ... to meet the witnesses face to face____” Pa. Const. Art. 1 § 9.

. "The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” Pa.R.Crim.Pro. 1117(a).

. The Prothonotary of the Eastern District is directed to transmit, as soon as possible, the full and complete record of the trial, sentencing hearing, imposition of sentence and review by this Court to the Governor. 42 Pa.C.S.A. § 971 l(i).