Commonwealth v. Jasper , 558 Pa. 281 ( 1999 )

OPINION OF THE COURT

FLAHERTY, Chief Justice.

In 1986 appellant was convicted of first degree murder in the shooting death of one John Wilson. On direct appeal, this court affirmed the conviction, but vacated the death sentence and remanded the case for a new penalty hearing. Following a second penalty hearing, appellant was again sentenced to death. This appeal, which raises six claims of error, is from the second penalty proceeding. We vacate the death sentence and remand for a new penalty hearing.

Because of our disposition of this case, we address only one issue raised by appellant, that the trial court erred in instructing the jury that it was not the final arbiter of the sentence. The court stated:

Now, with regard to death penalty, you know what that implies. Somewhere down the line, if you do impose the death penalty, the case will be reviewed thoroughly. And after thorough review the death penalty may be carried out. I won’t go into all the various reviews that we have. That shouldn’t concern you at this point.

N.T. December 9, p. 120.

This court, citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), has held that prosecutorial remarks that minimize the jury’s sense of responsibility for a verdict of death constitute reversible error. Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777, 787 (1986).¹ The sole issue in this case is whether the comments set out above minimized the jury’s sense of responsibility in violation of Caldwell and Baker.

The Commonwealth argues that the court’s comments did not minimize the jury’s sense of responsibility. First, it points out that in Caldwell the jury was led to believe that the responsibility for the death penalty was with the appellate courts rather than with the jury itself, and in this case, the trial court instructed the jury three times that its determination was not merely a recommendation, but that it was actually deciding the sentence.

We disagree that these instructions cured the remark set out above, for the plain import of the court’s remarks is that although the jury may impose the death penalty, it may not be carried out, thus removing from the jury the responsibility for imposing the death penalty.

Next, the Commonwealth argues that because this court affirmed death sentences in Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989) and Commonwealth v. Beasley, 524 Pa. 34, 568 A.2d 1235 (1990), the death penalty in this case must be affirmed. Both of these cases also involved challenges to the propriety of remarks concerning the appellate process. In Abu-Jamal, this court affirmed the sentence of death where we determined that the prosecutor’s remarks in context created no risk that the jury would abdicate its responsibility and where the prosecutor responded to a defense argument that appellant might be executed without adequate review by stating that there would be “appeal after appeal after appeal.” That case has no relevance to this case, where the statement at issue was not in response to an argument raised by the defense.

In Beasley, we affirmed the sentence of death where the prosecutor argued that the defendant would pursue endless appeals to all levels in the court system and stated, “when can you remember was the last person who was executed in Pennsylvania?” Beasley, 568 A.2d at 1236. In explaining this decision, we noted that the prosecutor did not suggest that this court would make the final decision regarding sentencing, but referred to the appeal process in general; that that trial court indicated to the jury that it was not merely recommending a sentence, but was “fixing the punishment at death or life imprisonment”; and that the prosecutor’s comments could not have affected the jury because the jury had found no mitigating circumstances an two aggravating circumstances. 568 A.2d at 1237. In this case, the jury found one mitigating circumstance and two aggravating circumstances.² The claim that the affirmance of the death sentence in Beasley requires a similar affirmance here is, therefore, without merit.

As we stated in Abu-Jamal, remarks concerning the appellate process must be evaluated by the circumstances of each case. The central idea is that when remarks about the appellate process minimize the jury’s sense of responsibility for the verdict of death, the sentence of death must be reversed. Here, by stating that any death sentence would be “reviewed thoroughly” and “may be carried out,” the court unduly and unnecessarily emphasized the role of appellate courts and gave the impression that any mistake which the jury may make in imposing the death penalty would be corrected by appellate review. Since the jury found one mitigating circumstance, they were not required to impose the death penalty,³ and in the absence of an instruction firmly fixing in the minds of the jury that they and they alone are responsible for the sentence, they may have erroneously believed that they could safely resolve doubts about the weight of mitigating circumstances against appellant, for any error would be corrected by others. This minimization of the jury’s sense of responsibility for its verdict constitutes a violation of the Eighth Amendment of the United States Constitution as well as Article I, § 13 of the Constitution of Pennsylvania.⁴

We are unwilling to prescribe a per se rule forbidding mention of the appellate process in death penalty cases, since there may be extraordinary circumstances, such as response to a defense argument, that necessarily entail mention of the appellate process. In general, however, we see little benefit in reference to appellate review, for whenever a jury is told that another body will review the jury’s decision, there is the possibility that these remarks will be construed to shift responsibility for imposition of the death penalty away from the jury and onto the appellate body.

The judgment of sentence of death is vacated and the case is remanded for a new penalty hearing.

Justice ZAPPALA files a concurring opinion. Justice CASTILLE files a dissenting opinion in which Justice NEWMAN joins.

1 . The United States Supreme Court in Caldwell held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472 U.S. at 328-29, 105 S.Ct. 2633.

In Baker the prosecutor argued to the jury that the ultimate responsibility for imposing the death penalty was with the appellate courts.

2 . The mitigating circumstance was that appellant aided a guard, his fellow prisoners, and helped his family. The two aggravating circumstances were that in killing the victim, he created a risk of death to another and that he had a significant history of felony convictions involving the threat or use of violence.

3 . The Sentencing Code states:

The verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance 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. § 9711(c)(iv).

4 . The Eighth Amendment of the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article I, § 13 of the Constitution of Pennsylvania provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.