Commonwealth v. Fisher

Justice SAYLOR,

concurring.

Although I concur in the result, I believe that certain of Appellant’s claims warrant additional elaboration.

In this regard, Appellant challenges the propriety of the trial court’s use of an example to illustrate reasonable doubt, specifically, a husband and wife arguing over the advantages and disadvantages of enrolling their child in a private school. The analogy concludes with the trial court explaining that, if after weighing the various concerns, you decide to send the child to private school, “[i]t would be at that point, after you had come to that firm conclusion, you had done something about it, that you would have gone beyond reasonable doubt.” I recognize that the trial court has broad discretion in phrasing its instructions, provided that, upon review of the charge *127as a whole, it clearly, adequately and accurately informs the jury on the law. See Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990). Here, however, the illustration attempted to draw a parallel between making a future personal decision and deciding whether facts offered by the Commonwealth surrounding a past incident were sufficiently proven beyond a reasonable doubt. Apart from the fact that such analogy was inapt, it suggested a preponderance of the evidence weighing process, obfuscating the applicable burden of proof. While the Court has not prescribed a particular charge on reasonable doubt, see Commonwealth v. Williams, 432 Pa. 557, 561, 248 A.2d 301, 303 (1968) (plurality opinion), the subcommittee note following the suggested instruction indicates that it is “intentionally brief,” as a more elaborate definition may confuse a jury. See Pa. SSJI (Crim) 7.01 subcomm. note (citing Commonwealth v. Del Giorno, 303 Pa. 509, 154 A. 786 (1931)).

Significantly, other jurisdictions have cautioned against the use of analogies or illustrations to explain reasonable doubt, reasoning that such examples tend to mislead the jury, trivialize its responsibility, and understate the burden of proof. See generally United States v. Pinkney, 551 F.2d 1241, 1244 & n. 9 (D.C.Cir.1976) (collecting cases). Moreover, most people do not make private decisions based upon a reasonable doubt standard, see generally Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977), as “[djeciding the wisdom of future action involves a different type of judgment than that used in deciding whether something did or did not happen.” Bumpus v. Gunter, 452 F.Supp. 1060, 1062 (D.Mass.1978).1 Indeed, individuals often have minimal information upon which to base important future decisions, and nevertheless act despite reasonable doubts. See generally Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instruc*128tions, 67 Tenn. L.Rev. 45, 80 (1999). A jury may also be inclined to accord undue weight to an example, finding it easier to understand, and, during deliberations, may simply compare a defendant’s conduct with the example. See generally State v. Cruz, 33 Conn.App. 849, 639 A.2d 534, 538 (1994) (citing People v. Shepherd, 63 Mich.App. 316, 234 N.W.2d 502 (1975)). In light of such authority, therefore, I would conclude that Appellant’s claim is of arguable merit.

With respect to prejudice, Appellant argues that errors involving the reasonable doubt standard can never be harmless. See Commonwealth v. Bishop, 472 Pa. 485, 491, 372 A.2d 794, 797 (1977); Commonwealth v. Salameh, 421 Pa.Super. 320, 326, 617 A.2d 1314, 1317 (1992). While such assertion may be accurate as a matter of direct review, in this case, the claim is presented in the form of a collateral attack and governed by an ineffectiveness standard. Appellant must therefore demonstrate that counsel’s omission, namely, his failure to object, had an actual adverse effect on the outcome of the proceedings, that is, that there is a reasonable probability the verdict would have been different absent counsel’s alleged ineffectiveness. See Commonwealth v. Howard 538 Pa. 86, 99-100, 645 A.2d 1300, 1307-08 (1994) (differentiating the harmless error standard on direct appeal from prejudice in collateral review and explaining that “it is not axiomatic that what can never be harmless error by the trial court equates to ineffective assistance of counsel”). Here, although the use of an illustration, in my view, constituted error, the court provided correct definitions of reasonable doubt both prior to and following the example, and the evidence of Appellant’s guilt was compelling. Thus, I would conclude that Appellant has failed to demonstrate prejudice sufficient to entitle him to relief.

My remaining concern is with respect to Appellant’s claim that appellate counsel rendered ineffective assistance in failing to raise as an issue the trial court’s ruling precluding evidence of residual doubt during the re-sentencing proceeding. Appellant argues that such ruling violated his constitutional right to testify and to present evidence in mitigation. The majority *129resolves this issue by noting that a capital defendant does not have a constitutional right to testify to his innocence in the penalty phase of a trial, see Commonwealth v. Stokes, 532 Pa. 242, 263, 615 A.2d 704, 715 (1992) (plurality opinion), and that Appellant is not entitled to relief merely because counsel’s strategy at the sentencing proceeding was unsuccessful.

As trial counsel attempted to introduce evidence of residual doubt, and the claim is directed at appellate counsel’s effectiveness for failing to pursue such issue on appeal, I do not believe that the issue should be dismissed as one implicating reasonable trial strategy. I recognize, nevertheless, that the United States Supreme Court has ruled that a capital defendant does not have a constitutional right to have the jury instructed on residual doubt, see Franklin v. Lynaugh, 487 US. 164, 172-73, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155 (1988) (plurality opinion), reasoning that such doubts do not implicate a defendant’s character, record, or the circumstances of the offense, and a constitutional right to rely upon residual doubts is “arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where a death sentence—but not the underlying conviction—is struck down on appeal.” See id. at 173 & n. 6, 108 S.Ct. at 2327 & n. 6.2 The plurality in Franklin did not explain why, as a matter of Eighth Amendment jurisprudence, residual doubts do not implicate the circumstances of the offense.3 Similarly, in Stokes, a plurality of this Court, without elaboration, deemed testimony in the penalty phase regarding the defendant’s guilt irrelevant. See Stokes, 532 Pa. at 263, 615 A.2d at 715. I *130would not, however, treat such authority as foreclosing consideration of this issue on other grounds.

In this regard, the text of the catch-all mitigator provides:

(e) Mitigating circumstances.-Mitigating circumstances shall include the following:
(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.

42 Pa.C.S. § 9711(e)(8). In contrast to the statutory language introducing aggravating circumstances, which states that such circumstances “shall be limited to the following,” see 42 Pa. C.S. § 9711(d), the list of mitigating circumstances is not prefaced with similarly limiting language. Of additional significance, Section 9711(a)(2) of the Sentencing Code, 42 Pa. C.S. § 9711(a)(2), provides that “evidence may be presented as to any other matter that the court deems relevant and admissible on the question of the sentence to be imposed.” Id.; see also Commonwealth v. Means, 565 Pa. 309, 324-25, 773 A.2d 143, 152-52 (2001) (plurality opinion) (concluding that, pursuant to Section 9711(a)(2), relevant evidence is not limited to statutory aggravators and mitigators).'4 Notwithstanding the United States Supreme Court’s Eighth Amendment interpretation, as a matter of statutory interpretation, I believe that, at least in certain instances, evidence of residual doubt may be viewed as constituting a circumstance of the offense,5 and, in any event, such evidence is arguably admissible as a non-statutory mitigating circumstance. Cf. United States v. Davis, 132 F.Supp.2d 455, 464, 468 (E.D.La.2001) (permitting residual doubt evidence to be introduced at defendants’ re-sentencing *131hearing as a non-statutory mitigating circumstance under the federal death penalty statute). Moreover, a number of the statutory aggravators directly implicate a defendant’s guilt or culpability, for example, whether the killing was committed while in the perpetration of a felony. Consequently, depending upon the nature of the aggravator, a defendant’s testimony concerning his role in committing the offense could be relevant.6 In addition, residual doubt concerning a defendant’s culpability following, for instance, an unsuccessful claim of self-defense may be perceived as qualitatively different than that associated with a disbelieved alibi. Furthermore, the United States Supreme Court has recognized that residual doubt may be an effective mitigator, see Lockhart v. McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 1769, 90 L.Ed.2d 137 (1986),7 and this Court has similarly acknowledged that emphasis of residual doubt may constitute a reasonable penalty-phase strategy. See Commonwealth v. Meadows, 567 Pa. 344, 359, 787 A.2d 312, 320-21 (2001) (plurality opinion).

Other jurisdictions have been divided on the issue. Although state courts tend to deem evidence of residual doubt irrelevant,8 some courts (most notably federal courts) permit consideration,9 while others decline to instruct the jury on residual doubt, but allow arguments respecting the issue.10 In my view, Appellant’s claim implicates issues of statutory inter*132pretation, public policy, and consideration as a matter of Pennsylvania Constitutional jurisprudence, which are best addressed upon proper framing and full briefing by the parties. Other than asserting federal constitutional guarantees, however, Appellant’s argument focuses upon an alleged inconsistency between the Court’s decisions in Stokes and Meadows. Further, to the extent that reliance upon residual doubt is to be permitted in the penalty phase of a capital case, reasonable limitations are implicated, since, having established a defendant’s guilt, the Commonwealth should not be compelled to reestablish it for purposes of sentencing, particularly, where, as here, the case has been remanded for a re-sentencing hearing. See generally Buford v. State, 403 So.2d 943, 953 (Fla.1981) (stating that, “[a] convicted defendant cannot be ‘a little bit guilty[;]’ [i]t is unreasonable for a jury to say in one breath that a defendant’s guilt has been proved beyond a reasonable doubt and, in the next breath, to say someone else may have done it, so we recommend mercy”). Here, I do not view the direct testimony of Appellant to the effect that he did not commit the crime as the type of residual doubt presentation that should be permitted,11 particularly in the context of a re-sentencing, as it would have the effect of requiring a re-trial of the guilt phase.12

Moreover, I do not believe that Appellant has demonstrated prejudice as a result of the trial court’s limitation. At the PCRA hearing, trial counsel acknowledged Appellant’s desire to testify at the re-sentencing that he did not commit the crime; however, counsel also explained that he sought to, *133inter alia, challenge the aggravating circumstance by arguing that Appellant did not kill the victim because she was a Commonwealth witness, but rather, that the victim was Appellant’s girlfriend, and that the killing occurred because of a lover’s quarrel. As such argument would have been inconsistent with Appellant’s testimony that he did not commit the crime, the trial court’s ruling would appear to have enhanced the viability of the defense theory concerning this aggravator.

. Although the District Court in Bumpus determined that the use of an analogy by the state court judge in his jury instructions amounted to a constitutional error, but that the error was harmless, the Court of Appeals disagreed with this analysis, concluding that, while the illustration was flawed and while the jurors may have been confused, the error did not deprive the defendant of due process. See Bumpus v. Gunter, 635 F.2d 907, 913 (1st Cir.1980).

. 11 is also noteworthy that the plurality in Franklin observed that even if a right to present residual doubt evidence were discerned from the Eighth Amendment, no limitation had been placed upon the defendant in arguing residual doubts to the sentencing jury, and the jury was not precluded from consideration of such issue. See id. at 174, 108 S.Ct. at 2327.

. In a concurring opinion, Justice O’Connor, joined by Justice Black-mun, reasoned that such doubt is not a fact about the circumstances of the offense, but rather, “a lingering uncertainty about facts, a state of mind that, exists somewhere between 'beyond a reasonable doubt’ and 'absolute certainty,’ ” and that there is no requirement of proof of guilt to an absolute certainty for purposes oí imposing the death penalty. Id. at 188, 108 S.Ct. at 2335 (O’Connor, J., concurring).

. Although I do not subscribe to an open-ended construction of Section 9711, see id. at 326, 773 A.2d at 160 (Saylor, J., concurring), the Court’s rulings permitting the introduction of non-statutory aggravation evidence in Means and Commonwealth v. Trivigno, 561 Pa. 232, 254, 750 A.2d 243, 254 (2000) (plurality opinion), support similar allowance with respect to evidence in mitigation.

. Indeed, the catch-all mitigator was added to expand the scope of evidence that could be presented in mitigation. See Legis. J.—Senate at 722 (Jun. 26, 1978).

. Certain of the miligators also bear upon guilt or culpability related to a defendant's mental state. See, e.g., 42 Pa.C.S. § 9711(e)(2), (3).

. Such evidence has also been described as "the most powerful ‘mitigating’ fact.” Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum L.Rev 1538, 1563 (1998) (analyzing data from interviews of jurors in forty-one capital cases).

. See, e.g., Preston v. State, 607 So.2d 404, 411 (Fla.1992); State v. Josephs, 174 N.J. 44, 803 A.2d 1074, 1116-17 (2002); Evans v. State, 112 Nev. 1172, 926 P.2d 265, 284-85 (1996); State v. Fletcher, 354 N.C. 455, 555 S.E.2d 534, 544 (2001); State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1122-23 (1997).

. See, e.g., Davis, 132 F.Supp.2d at 458-62 (collecting cases); State v. Hartman, 42 S.W.3d 44, 59 (Tenn.2001).

. See, e.g., People v. Cox, 53 Cal.3d 618, 280 Cal.Rptr. 692, 809 P.2d 351, 384 (1991); cf. Shelton v. State, 744 A.2d 465, 495-96 (Del.1999) (permitting defendant to discuss or argue in allocution facts respecting guilt).

. Notably, there was no formal offer of proof as to Appellant’s testimony-

. While there may be practical reasons for differentiating re-sentencing proceedings on this basis, 1 would not necessarily craft a general rule on such grounds, since it may also be argued that a defendant should not lose the benefit of any residual doubts because, through no fault of his own, an error occurred at the initial proceeding. However, it is also significant that, although the defendant in a re-sentencing proceeding "may lose whatever advantage inheres in the 'residual doubts’ that the original jury may have had regarding [his] guilt, the [Commonwealth] may also lose whatever 'advantage' inheres in the emotional impact that often surrounds the initial guilt phase." State v. Biegenwald, 106 N.J. 13, 524 A.2d 130, 160 (1987) (citations omitted).