[J-69-2015] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 702 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on August 31, 2014 in the Court
: of Common Pleas, Westmoreland
v. : County, Criminal Division at No. CP-65-
: CR-0000851-2010. Post Sentence
: Motions Denied July 16, 2014.
MELVIN KNIGHT, :
: SUBMITTED: October 7, 2015
Appellant :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: November 22, 2016
I respectfully dissent from the majority’s holding vacating Appellant’s judgment of
sentence and awarding a new penalty hearing. I disagree that Commonwealth v.
Rizzuto, 777 A.2d 1069 (Pa. 2001) applies under the circumstances of this case.
Rizzuto held “where a mitigating circumstance is presented to the jury by stipulation, the
jury is required by law to find that mitigating factor.” Id. at 1089. I agree that if the
parties stipulate to a mitigating factor the jury must find that factor as a matter of law.
However, I cannot agree that a jury is required to find a factor which has been
presented for the jury’s determination absent a stipulation.
I agree with Justice Baer’s statement in his concurring opinion that, based on
Detective Vernail’s testimony alone, he is “unconvinced that the jury was required as a
matter of law to find the Section 9711(e)(1) mitigating circumstance because the jury
was free to disbelieve the testimony presented, as a fact-finder has exclusive authority
to make credibility determinations.” Concurring Op. at 2, citing Commonwealth v.
Diamond, 83 A.3d 119, 134 (Pa. 2013), cert. denied, Diamond v. Pennsylvania, 135 S.
Ct. 145 (2014).
However, I write separately to distance myself from his conclusion the jury was
required to find the Section 9711(e)(1) mitigating circumstance based on “the
prosecutor’s explicit concession that Detective Vernail’s review of Appellant’s criminal
history was correct[.]” Id. A prosecutor’s closing statement is pure argument, not
evidence. See Commonwealth v. Johnson, 668 A.2d 97, 107 (Pa. 1995), cert. denied,
Johnson v. Pennsylvania, 519 U.S. 827 (1996). Thus, any perceived “concession”
contained in a closing argument is not evidence the jury is bound to consider.
Appellant claims that the jury’s failure to find the Section 9711(e)(1) mitigator was
“arbitrary and capricious.” Appellant’s Brief at 37-39. I agree with the trial court and the
Commonwealth that the jury was solely responsible for determining if a mitigating factor
existed. At sentencing, the Commonwealth explicitly refused to stipulate to the
existence of the mitigator at issue. Therefore, it was incumbent upon Appellant to prove
the mitigator by a preponderance of the evidence. See 42 Pa.C.S. § 9711(c)(1)(iii). It
was then the exclusive role of the jury to determine whether the mitigator existed and, if
so, whether it outweighed any proven aggravating circumstances.
As this Court stated in Commonwealth v. Reyes, 963 A.2d 436 (Pa. 2009), cert.
denied, Reyes v. Pennsylvania, 558 U.S. 850 (2009), our authority to vacate a death
sentence is governed by statute.
There is no legal mechanism by which a sentence of death
may be overturned by this Court on the basis of an improper
weighing of aggravating circumstances and mitigating
circumstances because our authority to vacate a death
sentence is circumscribed by the death penalty statute,
specifically 42 Pa.C.S. [§] 9711(h)(3), which provides:
(h) REVIEW OF DEATH SENTENCE.—
…
[J-69-2015] [MO: Dougherty, J.] - 2
(3) 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;
or
(ii) the evidence fails to support the finding of at
least one aggravating circumstance specified
in subsection (d).
This restriction on our authority has caused this Court to
reiterate many times that it is exclusively the function of the
jury in the first instance to decide whether aggravating and
mitigating circumstances exist and then whether the
aggravating circumstances outweigh any mitigating
circumstances.
Id. at 441.
Moreover, in Commonwealth v. Walter, 966 A.2d 560 (Pa. 2009), cert. denied,
Walter v. Pennsylvania, 558 U.S. 1052 (2009) this Court held:
[t]he law is clear that the task of determining the existence of
mitigating factors is for the jury alone. A capital jury is not
required to find a mitigating factor presented by a defendant,
even if the Commonwealth fails to present evidence
rebutting the existence of that factor. As in [Commonwealth
v.] Treiber, [874 A.2d 26 (Pa. 2005), cert. denied, 547 U.S.
1076 (2006)] the jury here was presented with evidence and
chose, in its discretion, to reject it. Appellant points to no
error that occurred at the penalty hearing.
Id. at 568 (quotation marks and some citations omitted). In Walter, this Court concluded
that the appellant pointed to no error at the penalty hearing, but rather asked us “to
substitute our own judgment for that of the jury, a charge we are without authority to
undertake.” Id.
In Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013), cert. denied, Ballard v.
Pennsylvania, 134 S. Ct. 2842 (2014), the appellant asked this Court to review the
jury’s failure to find the catchall mitigator despite presenting what he deemed to be
“unrebutted” evidence of 15 reasons why it should be found. Noting that the catchall
mitigator is subjective, this Court found that the appellant failed to set forth a legal
[J-69-2015] [MO: Dougherty, J.] - 3
argument, noting that “[i]rrespective of why the jury determined not to find this particular
mitigating circumstance, the point remains that the determination was reposed with the
fact finder. See Reyes. We cannot set it aside, based upon speculation that the jury
did not do its duty.” Id. at 411.
Instantly, the jury was charged with the specific task of determining whether or
not Appellant had a “significant history of prior criminal convictions.” Id. § 9711(e)(1).
The only evidence adduced was the testimony of one witness, which the jury was free
to consider and reject. See Walter, 966 A.2d at 568. However, under the majority’s
view, the Commonwealth’s closing argument regarding the weight the jury should give
to Appellant’s prior criminal history provides the linchpin to require the jury to find that
mitigator, as a matter of law, in favor of Appellant.
The following is an excerpt of the specific argument made by the Commonwealth
to the jury in its closing.
Lastly, I expect the defendant will argue, rightfully so, that he
has no significant history of criminal convictions. And that is
true. You remember that he asked - - the defendant’s lawyer
asked Detective Vernail yesterday whether he had obtained
a criminal history of the defendant and Detective Vernail did
and it did not show any convictions. So, certainly this is a
mitigating circumstance that is permitted to be offered in a
death penalty trial. And, again, you must consider that. But
I ask you to balance that against the horrific events of this
particular crime. It wasn’t simply a killing. It was a murder
that was committed during the course of a felony, during the
course of kidnapping, aggravated assault, a rape. And it
was worsened by the fact that it wasn’t done by the
defendant himself, that he joined with other people to keep
her, Jennifer away from her family, from anybody who would
help her, to kidnap her in effect. He had no prior convictions,
but in this particular case he pled guilty to first degree,
second degree, two conspiracy charges and kidnapping.
Five separate felonies.
N.T., 8/30/12, at 1768-1769.
The defense then argued that Appellant’s prior criminal history should mitigate
his sentence.
[J-69-2015] [MO: Dougherty, J.] - 4
Now, we know that he spent time in jail. You’ve heard about
that. These are for traffic - - not traffic citations, but a citation
more or less equivalent to a traffic offense or thereabouts.
Why is he in jail? He’s in jail because he doesn’t get the
citation, he doesn’t show up for court. It’s not because
someone threw him in jail for being guilty. He doesn’t show
up for the hearing. That’s why he got put in jail and that’s
how he came to be acquainted with Ricky Smyrnes. These
citations, disorderly conduct or harassment, certainly you
wouldn’t want your kids involved in it, you wouldn’t want your
kids to bring home a citation, but you know these are the
sorts of things that happen. The point is, he didn’t have a
significant prior history. No history of misdemeanors or
felonies at the time of this offense despite all that you’ve
heard.
Id. at 1776-77.
In line with our previous cases, the trial court instructed the jury, that if any
member of the jury finds that the defense proved a mitigating factor they are to consider
it and list it on the verdict sheet. In explaining the jury’s role in determining mitigating
factors the trial court instructed as follows.
The following mitigating circumstances are submitted to the
jury and must be proved by the defendant by a
preponderance of the evidence. And, again, preponderance
is not the same as beyond a reasonable doubt. It makes it
more likely than not. Think of a scale, and if it tips a little bit
more one way, that’s the preponderance of the evidence.
And there are four that are listed for you. And the same as
the aggravators, you might decide one of these, you might
decide all of them, you might decide none of them.
N.T., 8/30/12, at 1845 (emphasis added).
Further, the trial court correctly instructed the jury that they were the sole fact
finders in this matter. Importantly, the trial court’s charge to the jury specifically
instructed that the prosecutor’s closing statement is argument, not evidence.
Members of the jury, now that all of the evidence has been
presented and the attorneys for both sides have made their
closing arguments, it becomes my duty to instruct you in the
law which you will apply to the facts as you find them in
reaching your verdict.
…
[J-69-2015] [MO: Dougherty, J.] - 5
As I mentioned to you at the outset, it is my responsibility to
decide all questions of law, and you must accept and follow
my rulings and instructions on matters of law. I am not,
however the judge of the facts. It is not for me to decide
what facts are true facts in this matter. You, the jury are the
sole and only judge of the facts. It is your responsibility to
weigh the evidence, and based on that evidence and the
logical inferences which flow from that evidence, to find the
facts, to apply the rules of law which I give you, to the facts
as you find them, and then decide whether the defendant
should be sentenced to death or life imprisonment.
…
Ladies and gentlemen, you have now heard evidence and
arguments of counsel. Once again, I will reiterate to you that
the arguments of counsel are not evidence.
N.T., 8/30/12, at 1813-16. This statement reaffirms that counsels’ statements are not
evidence or binding, but merely persuasive argument in favor of their respective
positions. See Johnson, 668 A.2d at 107.
Because there was no stipulation regarding Appellant’s prior criminal history, the
jury was free to weigh Detective Vernail’s testimony and consider the arguments of
counsel. The Commonwealth did not argue that the jury must find Appellant had no
prior significant criminal history, only that they must consider Detective Vernail’s
testimony regarding it. Defense counsel did not argue Appellant’s prior criminal history
was uncontradicted, only that Appellant “didn’t have a significant prior criminal history.”
The defense undoubtedly makes an argument that this was met by a preponderance of
the evidence, but nevertheless, this is clearly a question for the jury, and the jury after
consideration, did not find it. Therefore, I would decline to substitute the judgment of
this Court for that of the jury. See Walter, 966 A.2d at 568. I am cognizant of the facts
of this case and that as objective reviewers it is possible to disagree with the jury’s
failure to find the mitigating factor based on the evidence presented. However, the
potential negative consequences that could arise from extending our current
jurisprudence which states a mitigating factor that is presented by stipulation must be
[J-69-2015] [MO: Dougherty, J.] - 6
found by the jury, to directing a jury to find a factor based on what we deem
uncontradicted evidence, usurps the jury’s very specific role in our bifurcated capital
case law.
A stipulation, as in Rizzuto, is a different circumstance, one the trial court in this
instance recognized, and specifically described in its instruction to the jury.
Earlier in my preliminary instructions I told you that
statements made by counsel are not evidence and are not
binding on you. There are exceptions to this. The
stipulation that was read to you earlier in the trial regarding
the toxicology report … is one of those exceptions. … 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 fact. You should regard the
stipulated or agreed fact as proven.
Id. at 1822. In the absence of a stipulation the jury cannot be faulted for failing to find a
mitigator in favor of the defendant, when it was explicitly within its discretion to reject the
evidence presented.
Of equal importance, I also write to note that the jury’s failure to find the Section
9711(e)(1) factor does not lead to an arbitrary and capricious result. The jury in this
case unanimously found two aggravating factors beyond a reasonable doubt; that the
killing was committed during the commission of a felony, and that the killing was
committed by a means of torture. The jury heard about the extensive abuse and torture
the victim incurred prior to her murder at the hands of Appellant and his co-defendant.
The jury also found the catchall mitigating factor and weighed this against the two
aggravating factors. See Reyes, 963 A.2d at 441. Ultimately, the jury concluded the
aggravating factors outweighed the mitigating factor and unanimously returned a verdict
of death. N.T., 8/30/12, at 1865.
Accordingly, I dissent from the majority’s conclusion that Appellant is entitled to a
new penalty hearing and I would affirm Appellant’s judgment of sentence.
[J-69-2015] [MO: Dougherty, J.] - 7