Com. v. Baptiste, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEKOTA JEROME BAPTISTE :
:
Appellant : No. 3304 EDA 2019
Appeal from the Judgment of Sentence Entered May 17, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001184-2017
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 9, 2021
Appellant Dekota Jerome Baptiste appeals from the judgment of
sentence imposed after a jury found him guilty of first-degree murder1 and
related offenses. On appeal, Appellant raises fourteen issues. We affirm.
The facts and procedures leading to this appeal are well known to the
parties. Briefly, the Commonwealth charged Appellant for the February 23,
2017 shooting that resulted in the death of Terrence Ferguson (decedent). At
the time of the shooting, Thressa Duarte (Duarte) and at least one other
person was a passenger in the decedent’s vehicle. Appellant was twenty-four
years old at the time of the shooting.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(a).
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The criminal complaint was filed on February 24, 2017, and the
Commonwealth filed a criminal information and an amended information on
June 15, 2017, and June 20, 2017, respectively. On June 22, 2017, the
Commonwealth filed a notice of its intent to seek the death penalty.
On July 28, 2017, Appellant filed an omnibus pretrial motion. On April
27, 2018, the trial court, in relevant part, denied Appellant’s motions to
suppress Appellant’s statements during a police interrogation and evidence
obtained from a search of his person. Further, the trial court denied
Appellant’s motion to preclude the death penalty and to strike the
Commonwealth’s notice of aggravating circumstances.
Appellant proceeded to a jury trial, during which he testified in support
of his self-defense claim. On May 10, 2019, the jury found Appellant guilty of
first-degree murder, attempted murder, aggravated assault, recklessly
endangering another person, receiving stolen property, possessing an
instrument of crime, firearms not to be carried without a license, and fleeing
or attempting to elude a police officer.2 On May 14, 2019, the jury deadlocked
on the imposition of the death penalty. On May 17, 2019, the trial court
imposed a sentence of life imprisonment for first-degree murder, and an
aggregate consecutive term of 233 to 612 months’ imprisonment for the
remaining offenses.
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2 18 Pa.C.S. §§ 901(a), 2702(a)(1), (4), 2705, 3925(a), 907, 6106(a)(1), and
3733(a), respectively.
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Appellant timely filed post-sentence motions and briefs in support. On
July 24, 2019, the trial court granted Appellant’s motion for a thirty-day
extension to decide the post-sentence motions. On October 14, 2019, the
trial court entered an order with a statement of reasons for denying
Appellant’s post-sentence motions.
Appellant timely appealed and complied with the trial court’s order for a
Pa.R.A.P. 1925(b) statement. The trial court filed an opinion relying on its
order denying Appellant’s post-sentence motions but addressing four issues
that it previously determined were withdrawn or waived.
Appellant raises the following issues, which we have reordered for
review:
A. Whether the trial court erred in allowing [the C]ommonwealth
cross-examination of [Appellant,] which presented false
evidence to the jury related to the number of gunshot wounds
of the [decedent] where the [decedent] was only shot once in
the right shoulder?
B. Whether the trial court erred in allowing the rebuttal testimony
of Ronald Johnson which testimony was improper due to unfair
surprise with no proper notice to the defense?
C. Whether during jury selection, the jury clerk had available to
all potential jurors in the jury lounge the television broadcast
of news on channel 69 WFMZ of . . . Appellant’s alleged
criminal activity and involvement in homicide which improperly
poisoned the jury panel?
D. Whether the trial court erred in failing to grant Appellant’s
motion for change of venue/venire where the pretrial publicity
was sustained, pervasive, inflammatory, inculpatory, and there
was a presumption of prejudice in selecting a fair and impartial
jury from Northampton County?
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E. Whether the trial court erred in failing to permit direct
examination of Appellant pertaining to the subject matter of
the [decedent]’s character as a known major drug dealer and
said “occupation” known to the Palmer Police Department. This
testimony would provide reason and motive for the
[decedent]’s attempt to run over Appell[]ant with his car?
F. Whether the trial court improperly permitted evidence of . . .
Appellant’s prior criminal record history in the nature of
juvenile delinquency for conspiracy to commit robbery during
the trial?
G. Whether the evidence was insufficient as a matter of law with
respect to criminal homicide where the Commonwealth’s
evidence did not establish that . . . Appellant did not act in
self-defense in the death of [the decedent]?
H. Whether the trial court erred when it denied . . . Appellant[]’s
motion to suppress statements made by Appellant and
Appellant[]’s consent to a personal search by the Palmer
Township Police Department as contained in Appellant’s
omnibus pretrial motion?
I. Whether the trial court erred when it denied [Appellant]’s
motion to preclude the death penalty and strike notice of
aggravating circumstances?
J. Whether the prosecution failed to preserve physical evidence
in the nature of Appellant’s car, a 2016 Nissan Versa,
preventing the analysis of the event data recorder . . . which
may have produced exculpatory evidence of vehicle movement
in support of . . . Appellant's claim of self- defense?
K. Whether the Commonwealth exercised preemptory challenges
during the jury selection process that violated [Appellant]’s
right to an impartial jury free from racial/ethnic or gender
discrimination pursuant to Batson v. Kentucky[3] in violation
of the Equal Protection Clause and Fourteenth Amendment of
the United States constitution?
L. Whether the sentence of the court to a mandatory life sentence
without the possibility of parole for first degree murder is
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3 Batson v. Kentucky, 479 U.S. 79 (1986).
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unlawful where the underlying statute is unconstitutional and
the sentencing issue was not submitted to the jury pursuant to
Alleyne v. United States[4]?
M. Whether the mandatory sentence of Appellant to life
imprisonment without the possibility of parole for murder of the
first degree violates the Eight Amendment prohibition on cruel
and unusual punishment?
N. Whether the court erred in denying Appellant[’s] request to
instruct the jury that in Pennsylvania the mandatory sentence
for first degree murder is life imprisonment without the
possibility of parole?
Appellant’s Brief at 5-7 (some formatting altered).
1. Preliminary Matters
Dismissal Pursuant to Pa.R.A.P. 2101
Initially, we consider the Commonwealth’s request that this Court
dismiss or quash Appellant’s appeal for violations of the Rules of Appellate
Procedure and this Court’s case law. Commonwealth’s Brief at 11-18. The
Commonwealth notes, for example, that Appellant has failed to attach his Rule
1925(b) statement to his brief or include a statement of the scope and
standard of review. Id. at 12-13. The Commonwealth continues that
Appellant’s summary of argument section fails to discuss the majority of his
claims. Id. at 13-14. According to the Commonwealth:
Most significantly, the [a]rgument section of his brief contains
virtually no citations to the record or relevant case law aside from
boilerplate law. He has failed to identify where (or even if) he
preserved his issues below and his substantive arguments are so
short they fail in any meaningful way to identify or develop the
specific issues he is attempting to raise on appeal.
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4 Alleyne v. United States, 570 U.S. 99 (2013).
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Id. at 17.
Pennsylvania Rule of Appellate Procedure 2101 states:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.
Pa.R.A.P. 2101. Chapter 21 of the Rules further outline the requirements for
the form and content of an appellant’s briefs. See e.g. Pa.R.A.P. 2111, 2114-
2119. Violations of Chapter 21 are substantial when they impede meaningful
review. Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010).
However, even if a brief fails to comply with several Chapter 21 rules, this
Court may address claims that are sufficiently developed to permit meaningful
review. See Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super.
2005) (declining to dismiss or quash an appeal despite “numerous defects in
[the a]ppellant’s brief” and proceeding to address the issue that the appellant
adequately developed for appellate review).
Following our review, we agree with the Commonwealth that Appellant’s
brief fails to “conform in all material respects with the requirements of [the
Rules of Appellate Procedure].” See Pa.R.A.P. 2101. However, having
reviewed Appellant’s brief as a whole, we conclude that the defects are not so
substantial that they would preclude us from reviewing any of the issues
Appellant raises on appeal. Accordingly, we do not dismiss the appeal, and
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will instead consider the Commonwealth’s arguments concerning Appellant’s
defective brief on an issue-by-issue basis. See Adams, 882 A.2d at 498.
Issue Preservation
Next, we consider the trial court’s and the Commonwealth’s assertions
that Appellant waived his first six issues by failing to preserve them in the trial
court and by abandoning them in the briefs he filed in support of his post-
sentence motion. Specifically, both the trial court and the Commonwealth
contend the Appellant waived his claims concerning (1) a change of venue or
venire, (2) taint in the jury pool, (3) the presentation of false evidence when
cross-examining Appellant, (4) the trial court’s permission of rebuttal
testimony from Ronald Johnson, (5) the trial court’s improper limitation on
Appellant’s testimony regarding the decedent’s character, and (6) the trial
court’s ruling to admit evidence of Appellant’s prior juvenile adjudication for
conspiracy to commit robbery. See Order, 10/14/19, at 11-12, 23-24;
Commonwealth’s Brief at 32-33, 35-36, 37-38, 42, 46-47, 55.
It is well settled that an appellant must preserve his appellate issues
before the trial court. See Pa.R.A.P. 302(a) (stating that “[i]ssues not raised
in the trial court are waived and cannot be raised for the first time on appeal”);
Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017). Further, as
this Court has stated, “one must object to errors, improprieties or irregularities
at the earliest possible stage of the criminal or civil adjudicatory process to
afford the jurist hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.”
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Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super. 2008) (citation
and quotation marks omitted). One of the purposes of the rules concerning
issue preservation is to encourage the finality of trial court holdings and
discourage counsel from seeking relief “from an adverse verdict by the
thought that an appellate court may seize upon a previously unclaimed error
and afford relief on a ground not called to the trial court’s attention.” See
Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114, 116 (Pa. 1974).
Instantly, a review of the trial court’s finding of waiver reveals the
following. Appellant did not move for a change of venue or venire in the trial
court. Although Appellant raised a claim of possible taint as to one panelist
based on a news cast that had been playing in the jury assembly area, that
individual was not seated on the jury. Further, Appellant did not assert that
this taint required a new jury pool. Therefore, we are constrained to conclude
that Appellant waived his issues concerning a change of venue or venire and
the possibility of taint. See Pa.R.A.P. 302(a); cf. Commonwealth v.
Baumhammers, 960 A.2d 59, 74 (Pa. 2008) (concluding that the appellant
waived his claim concerning a change of venue or venire because, on appeal,
he was “essentially arguing that the court erred by sustaining [his] own
objection”).
Similarly, the record confirms that Appellant did not object to either the
Commonwealth’s question during cross-examination as using false evidence,
nor did he object to the alleged lack of notice and unfair surprise surrounding
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the Commonwealth’s presentation of Johnson as a rebuttal witness.
Accordingly, those issues are also waived. See Pa.R.A.P. 302(a).
To the extent Appellant claims that the trial court erred in limiting his
testimony regarding the decedent’s character, the record reveals that the
parties addressed this issue on the record at trial. See N.T., 5/10/19, at 21-
24. However, the record reflects that the although the trial court sustained
the Commonwealth’s objection to a lack of foundation, the court did not
preclude Appellant from testifying about the decedent’s character. See id. at
24 (indicating that the trial court stated it would allow further testimony later
in the direct examination of Appellant and that trial counsel stated he would
return to that issue “at a later point”). Further, Appellant does not cite to any
portion of the record that demonstrates that he attempted to present such
evidence and that the trial court precluded his testimony.5 Under these
circumstances, we conclude that Appellant failed to preserve this issue for
appellate review. See Pa.R.A.P. 302(a).
Finally, as to Appellant’s claim that the trial court improperly permitted
the Commonwealth to introduce evidence of his juvenile adjudication,
Appellant expressly abandoned this claim in his brief in support of his post-
sentence motions. Specifically, Appellant indicated that this issue was
meritless. Because Appellant withdrew this issue from consideration when the
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5 As noted by the trial court, Appellant also expressly withdrew this claim from
the trial court’s consideration in his brief in support of his post-sentence
motions. In his post-sentence motion, Appellant asserted that the issue of his
testimony concerning the decedent’s character was waived.
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trial court had an opportunity to grant relief, he cannot revive it in this appeal.
Cf. Dilliplaine, 322 A.2d at 116. Accordingly, we conclude that this claim is
waived.
In sum, we agree with the trial court and the Commonwealth that
Appellant waived his first six issues, and we therefore decline to address them
in this appeal.
2. Sufficiency of the Evidence
Appellant claims that the evidence was insufficient to support his
conviction for first-degree murder because “he was acting in self-defense
when he fired at the decedent’s vehicle.” Appellant’s Brief at 14.
By way of background, the trial court summarized the trial evidence as
follows:
[Appellant] stated at the time of trial that he had known Duarte
for about ten years, and they met in high school. [Appellant]
testified that he has visited the Duarte home, located on Ferry
Street in Easton, Pennsylvania, “a couple times.” While at
Duarte’s house on Wednesday, February 22, 2019, [Appellant]
testified that [the decedent] arrived and pounded on the door in
an “angrily and aggressive manner.”
This is the first encounter between [Appellant] and [the
decedent]. [Appellant] recalled that Duarte opened the door, and
[Appellant] observed [the decedent] wearing a hoodie jacket with
the hood up, and [the decedent]’s right arm was in the jacket
pocket, which [Appellant] claimed made him feel “threatened and
scared for [his] life.” According to Appellant, the bulge in [the
decedent]’s pocket signified that [the decedent] was carrying a
weapon. [Appellant] stated [the decedent] then “stormed out the
door.” This is the “situation” referred to by [Appellant] infra.
[Appellant] testified that the following day, February 23, 2017, he
arrived at Duarte’s house at approximately 6:00 p.m. and he
remained there for couple minutes.” Next, Duarte’s mother drove
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[Appellant] and Duarte from the Duarte household in Easton,
Pennsylvania, to Duarte’s grandmother's senior citizen home, only
a few blocks away. [Appellant] stated that they were at Duarte’s
grandmother’s home for a short period of time. [Appellant]
recalled that he remained inside of the car, and Duarte and her
mother exited the vehicle and entered the building. It was here
that [Appellant] and [the decedent] had their second encounter.
While in the car, [Appellant] observed [the decedent’s] vehicle
drive up and park next to where [Appellant] was located. When
Duarte exited her grandmother’s house, Duarte entered the
[decedent’s] vehicle. [Appellant] stated that Duarte’s mother
dropped him off at his vehicle, then he visited a friend, and then
drove through Easton.
[Appellant] stated that as he was driving, he identified the car in
front of him as the [decedent’s] vehicle, and [Appellant] followed
that vehicle down an alleyway and then parked beside it. This is
the third encounter between [Appellant] and [the decedent].
[Appellant] asked [the decedent] if they could talk about the
situation that took place on the day prior, Wednesday, February
22, 2017.
[Appellant] then followed [the decedent]’s vehicle to AutoZone,
located at 2503 Nazareth Road [in] Easton . . . . This was the
fourth and final encounter between [Appellant] and [the
decedent].
April Drake (Drake), an employee working at the McDonald’s
across from the AutoZone, testified that she observed the incident
while working at the drive thru window. Drake’s testimony
revealed that as the two cars entered the AutoZone, the car
identified as [Appellant] drove over a median. [Appellant] recalled
exiting his vehicle, walking over to the [decedent’s] vehicle, and
telling [the decedent] that he did not want problems between the
two of them. [Appellant] testified that he believed the issues
between him and [the decedent] were resolved. [Appellant]
stated that as he was walking back to his car, he heard tires
screeching and saw [the decedent] moving his car towards [him].
[Appellant] testified that [the decedent] used his car to hit [him],
more specifically [Appellant] claimed:
Once the first hit landed, it took my knees out. I went to
the ground. Now, at that point, because of the impact to
the car hitting my car, now the backside of my bumper ---
my car do a 180-degree spin, turn, so at that point, the back
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bumper is coming full speed at me nearly almost taking my
whole upper body out, so I had to roll out of the way. At
that point, now, the cars are pitched together. All I think at
this point is survival, at this point, and defending myself.
[Appellant] further claimed that [the decedent] used his car to hit
him four more times. After claiming to be knocked down to the
ground again, [Appellant] stated he “reached for my firearm with
my left hand and started shooting.” After the shooting,
[Appellant] left the AutoZone because he claimed he was
panicked, scared and nervous.
Ronald Johnson . . . , who was a passenger in the back seat of
[the decedent’s] car, presented facts contrary to [Appellant’s]
recital. Johnson stated that he is a mechanic, and [the decedent]
was driving to the AutoZone to get car parts, and then Johnson
was going to work on Ferguson’s car. Johnson testified that, on
the day in question, he and a woman named Michelle were picked
up by “Lex,” which is a nickname for [the decedent], on Walnut
Street at approximately 5:00 p.m. or 6:00 p.m., and “Tess” was
also in the car. The name “Tess” was a reference to Duarte.
Johnson sat on the passenger’s rear side and Michelle sat on the
driver’s rear side. Johnson testified that [the decedent] pulled the
car over on Union Street, and [Appellant] pulled up next to [the
decedent]. Johnson stated that he heard [Appellant] say to [the
decedent], “you disrespected me with my girlfriend.” Johnson
said that [the decedent] drove away, and [Appellant] was driving
erratically and chasing them.
Johnson’s testimony reiterated Drake’s testimony, stating that he
observed [Appellant] driving across the median. Johnson stated
that he suggested to [the decedent], “don't stop, just pull back
out again and see if he would stop doing what he’s doing.”
Johnson testified that [the decedent] circled around and parked in
the AutoZone parking lot.
Johnson stated he got out of the vehicle and observed [Appellant]
exit his car and shout at [the decedent]. Johnson testified that he
went into the AutoZone, but was unable to make a purchase
“because of what was going on outside.” Although not in
chronological order, Johnson continued to testify about the
incident. Johnson testified that he “was outside the [AutoZone]
door when the shots were going off.” Johnson stated that he
observed "cars bumping into each other" with drivers in both
vehicles, and one car blocking the other’s exit. Johnson stated
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the [decedent’s] vehicle attempted to exit, but [Appellant] was
blocking the path, and [the decedent] hit [Appellant] while
[Appellant] was inside of his car. Johnson recalled [Appellant]
exited his vehicle, and [the decedent] did not attempt use his
vehicle to hit [Appellant]’s body.
Order, 10/14/19, at 2-6 (record citations omitted).
The trial court also noted that the trial evidence indicated that Appellant
fired through the front passenger side of the decedent’s vehicle. Id. at 30.
Further, the trial court summarized evidence indicating that a police officer
had attempted to stop Appellant’s vehicle shortly after the shooting and that,
although the officer’s lights and sirens were activated during the pursuit,
Appellant did not stop his vehicle for two to five minutes. Id. at 7. The trial
court also noted that Appellant testified that he disposed of his gun while he
was driving, but that officers later recovered the firearm. Id.
Appellant challenged the sufficiency of the evidence in his post-sentence
motion, and the trial court rejected the claim, explaining that the
Commonwealth’s evidence established that Appellant did not act in self-
defense. Id. at 30. Specifically, the trial court concluded that the
Commonwealth established that Appellant (1) was not free from fault in
provoking the encounter, (2) did not reasonably believe he was in imminent
danger, and (3) violated a duty to retreat. Id. at 30-32.
On appeal, Appellant contends that “the decedent was the aggressor in
this matter.” Appellant’s Brief at 15. Appellant emphasizes that the decedent
appeared to threaten him when they first met at Duarte’s home, that their
subsequent encounters involved “a series of events that escalated in
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aggression[,]” and that the decedent attempted to run Appellant over, until
“Appellant believed that he had no choice but to fire at the vehicle.” Id. at
15-16. Appellant concludes that, “[b]ased on the evidence, the jury should
have acquitted . . . [him] of the most serious charges.”6 Id. at 16.
The Commonwealth responds that it presented ample evidence that
Appellant provoked the incident leading to the shooting and that he failed to
retreat. Commonwealth’s Brief at 22-23. The Commonwealth adds that “the
jury was free to infer Appellant’s guilt and disbelieve his self-defense claim
based on his inconsistent and contradictory statements to police.” Id. at 23
n.15.
In reviewing a sufficiency claim, our standard of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard or review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
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6 In footnote 1 of his brief, Appellant adds that he “also challenges the
convictions of attempted murder, recklessly endangering another person, and
possessing instruments of a crime on the grounds that he was acting in self-
defense when he fired the gun.” Appellant’s Brief at 14 n.1. The
Commonwealth asserts that Appellant’s failure to develop any arguments
based on the elements of those offenses. While we agree with the
Commonwealth’s assertion of waiver, any derivative claim concerning these
other charges fails based on our conclusion that Appellant’s principal assertion
is meritless.
We also note that Appellant briefly refers to challenging the weight of the
evidence. However, Appellant waived this claim because he failed to raise it
in his post-sentence motions. See Commonwealth v. Sherwood, 982 A.2d
483, 494 (Pa. 2009).
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to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa. Super. 2017)
(citations omitted and some formatting altered).
Under the Crimes Code, self-defense is a defense of justification, which
is a complete defense to criminal liability. See 18 Pa.C.S. § 502. We have
explained that
[t]he use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the other
person. See 18 Pa.C.S. § 505(a). When a defendant raises the
issue of self-defense, the Commonwealth bears the burden to
disprove such a defense beyond a reasonable doubt.
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008) (citation
omitted).
To disprove a defendant’s claim of self-defense, the Commonwealth
must establish at least one of the following:
1) the accused did not reasonably believe that he was in danger
of death or serious bodily injury; or 2) the accused provoked or
continued the use of force; or 3) the accused had a duty to retreat
and the retreat was possible with complete safety. It remains the
province of the jury to determine whether the accused’s belief was
reasonable, whether he was free of provocation, and whether he
had no duty to retreat.
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Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005)
(citations and quotation marks omitted).
“When the defendant’s own testimony is the only evidence of self-
defense, the Commonwealth must still disprove the asserted justification and
cannot simply rely on the [fact-finder’s] disbelief of the defendant’s
testimony[.]” Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super.
2014). “If there are other witnesses, however, who provide accounts of the
material facts, it is up to the fact finder to ‘reject or accept all, part or none of
the testimony of any witness.’” Id. (citation omitted).
Upon our review, we agree with the trial court that that the
Commonwealth presented sufficient evidence to disprove Appellant’s self-
defense claim by demonstrating that Appellant provoked or escalated the
encounter that led to the shooting. Specifically, the Commonwealth presented
testimony from Johnson, who stated that Appellant followed the decedent’s
vehicle, confronted the decedent about disrespecting Appellant and his
girlfriend, and then continued to follow the decedent’s car to the AutoZone
parking lot in an erratic manner shortly before the shooting. See N.T.,
5/10/19, at 170-71. Johnson specifically testified that the decedent did not
try to run over Appellant with his vehicle. See id. at 179. On this record,
we conclude that the jury was entitled to accept Johnson’s testimony, find
Appellant at fault for provoking the incident, and reject Appellant’s claim of
self-defense. See Smith, 97 A.3d at 788. Accordingly, Appellant’s challenge
to the sufficiency of the evidence fails.
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3. Suppression
Appellant next claims that the trial court erred in denying his motion to
suppress his statements and the physical evidence seized by the police.
Appellant’s Brief at 17. Appellant contends that his waiver of his Miranda
rights was the product of coercion, because he was “held late at night and
subjected to physical discomfort and badgering by police officers for two
hours.” Id. at 19. Appellant further asserts that “any physical evidence that
was seized as a result of his unlawful interrogation should have also been
suppressed.” Id.
When reviewing a suppression ruling, our standard of review is as
follows:
[W]e determine whether the court's factual findings are supported
by the record and whether the legal conclusions drawn from them
are correct. Where, as here, it is the defendant who is appealing
the ruling of the suppression court, we consider only the evidence
of the prosecution and so much of the evidence for the defense
which remains uncontradicted when fairly read in the context of
the whole record. If, upon our review, we conclude that the record
supports the factual findings of the suppression court, we are
bound by those facts, and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Mitchell, 902 A.2d 430, 450-51 (Pa. 2006) (citations
omitted). “It is within the suppression court’s sole province as fact[-]finder
to pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super.
2013) (citation omitted).
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Initially, we note that Appellant’s brief is undeveloped on this issue.
Appellant fails to cite the suppression record, and he instead relies on general
references to his argument that officers “badgered him” and subjected him to
physical discomfort for two hours.7 See Appellant’s Brief at 10, 19. The
absence of a developed argument violates Pa.R.A.P. 2119 and substantially
impairs this Court’s ability to review Appellant’s instant claim. Therefore, we
conclude that Appellant has waived this issue on appeal. See Adams, 882
A.2d at 498.
In any event, we consider that the trial court addressed this issue in its
order denying Appellant’s post-sentence motion, and the record reveals ample
support for the trial court’s findings of fact and conclusions of law when
denying Appellant’s suppression motion. Specifically, the trial court rejected
Appellant’s claims that officers unlawfully obtained his Miranda waiver, his
statements, or a DNA buccal swab, the last of which was obtained pursuant
to a warrant. See Order 4/17/18, at 12-16; see also N.T., 1/26/18, at 13-
18 (indicating that following his arrest, Appellant was taken to the police
station and placed in his holding cell at 8:35 p.m., at which time police took
his shoes, belt, or other clothing that he could use to harm himself, and that
Appellant waived his Miranda rights at the beginning of the interrogation in
an interview room that lasted from 10:00 p.m. to 11:58 p.m.). Accordingly,
____________________________________________
7 Appellant did not testify at the suppression hearing.
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Appellant’s arguments establish no basis to disturb the trial court’s ruling.
See Mitchell, 902 A.2d at 450-51. Therefore, no relief is due.
4. Death Penalty and Notice of Aggravating Circumstances
In his next issue, Appellant asserts the trial court erred in denying his
motion to preclude the Commonwealth from proceeding with a death penalty
trial. Appellant’s Brief at 20. By way of background to this claim, on June 22,
2017, the Commonwealth filed notice of intent to seek the death penalty based
on two aggravated circumstances: (1) that the killing was committed while in
perpetration of felony offenses and (2) Appellant created a grave risk to
others. Appellant filed a motion to preclude the death penalty and strike the
Commonwealth’s notice of aggravating circumstances as part of his omnibus
pre-trial motion. According to Appellant, the Commonwealth’s evidence was
insufficient to establish the circumstances cited by the Commonwealth, and
he requested a hearing pursuant to Commonwealth v. Buck, 709 A.2d 892(Pa. 1998).
Following a hearing, the trial court denied Appellant’s motion and
concluded that Appellant’s argument was “inconsistent with Pennsylvania
law.” Order, 4/17/18, at 17. The trial court explained:
The Commonwealth bears no “pre-trial burden of proving an
aggravating factor.” [Buck, 709 A.2d at 896]. It is for the jury,
not this [c]ourt, to determine whether the death penalty is
appropriate. If the Commonwealth “files a notice of aggravating
circumstances which includes at least one aggravating factor that
is supported by any evidence, the case is properly framed as a
capital case.” . . .
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Here, the Commonwealth used its initial discretion to categorize
this matter as a capital case. The Commonwealth charge[d]
[Appellant] with other felonies stemming from the same incident,
namely attempted homicide, aggravated assault and receiving
stolen property. Further, testimony revealed evidence that
[Appellant] knowingly created a grave risk of death to Thressa
Duarte. This case [was] appropriately designated as a capital
murder case . . . .
Id. at 17-18.
In his post-sentence motion, Appellant renewed his claim that the
evidence did not support the Commonwealth’s notice of aggravating
circumstances. The trial court denied Appellant’s post-sentence motion,
expanded upon its earlier discussion of Buck, and further concluded that
Appellant failed to establish purposeful abuse in the Commonwealth’s decision
to proceed under the death penalty. Order, 10/14/19, at 21-22.
In his brief in this Court, Appellant asserts:
In the instant matter, the [trial] court upheld the Commonwealth’s
aggrav[a]ted circumstance and denied the motion to preclude the
death penalty despite lacking the sufficient evidence to proceed
with it in the sentencing phase. As a result, the Commonwealth
was able to strike jurors who would have been more receptive to
the Appellant’s self-defense argument. As a result, the verdict
should be overturned and . . . Appellant should be granted a new
trial.
Appellant’s Brief at 21. Appellant acknowledges that he was sentenced to life
in prison, but he asserts that “the empanel[]ed jury had a significant impact
on his case” because a capital jury is less likely to acquit a defendant. Id.
Appellant also references case law, including Buck, establishing that it is
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inappropriate for a trial court to issue a pretrial ruling on whether testimony
regarding aggravating circumstances will be sufficient. Id. at 20.
The Commonwealth responds that the basis of Appellant’s claim is
“unclear” because Appellant’s arguments shift from suggesting that the trial
court erred in ruling on his claim before trial to challenging the adequacy of
the evidence supporting the aggravating circumstances. Commonwealth’s
Brief at 28. Nonetheless, the Commonwealth argues that the trial court
properly denied Appellant’s pre-trial motion to preclude the death penalty and
strike the notice of aggravating circumstances. Id.
In Buck, our Supreme Court stated:
We recognize that the prosecutor possesses the initial discretion
regarding whether to seek the death penalty in a murder
prosecution. That discretion, however, is not unfettered.
In Commonwealth v. Buonopane, [599 A.2d 681 (Pa. Super.
1991)], the Superior Court held that the trial court had no
authority to examine the methods employed by the prosecutor in
making the determination of whether to proceed with a murder
prosecution as a capital case. The court further held that absent
a threshold showing of a valid claim of purposeful abuse, a trial
court’s pre-trial determination regarding proposed aggravating
factors violated the constitutional principle of separation of
powers. Thus, the court implicitly recognized that in limited
circumstances the prosecutor’s designation of a case as capital
could be challenged.
We find that a valid claim for purposeful abuse exists when the
Commonwealth files an unwarranted notice of aggravating
circumstances. Implicit in the notice requirement is the
presumption that the allegations contained therein are based upon
verifiable facts. It is well-established that the Commonwealth has
no pre-trial burden of proving an aggravating factor. However,
the trial court must be able to ensure that the Commonwealth is
not seeking the death penalty for an improper reason. The nature
of the court’s inquiry is focused solely upon whether the case is
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properly designated as capital, not whether each aggravating
factor alleged is supported by evidence. We note that, pursuant
to 42 Pa.C.S. § 9711(c)(1)(i), the trial court is required to instruct
the jury to consider only aggravating circumstances for which
there is some evidence. Thus, if the Commonwealth files a notice
of aggravating circumstances which includes at least one
aggravating factor that is supported by any evidence, the case is
properly framed as a capital case. Whether any particular
aggravating circumstances should be submitted for the jury’s
consideration can be determined by the court before the jury
retires to consider a verdict.
A defendant who claims that there is no evidence supporting the
notice of aggravating circumstances bears the burden of proving
that contention. If the defendant fails to meet this burden and
evidence exists to create a factual dispute regarding whether the
aggravating factor(s) exist, the defendant’s motion should be
summarily denied as no abuse of discretion by the prosecutor is
apparent. To the contrary, however, if the defendant makes a
showing that no evidence exists to support the aggravating
circumstance alleged, the trial court may require minimal
disclosure by the Commonwealth. If no evidence is presented in
support of any aggravating circumstance, the trial court may rule
that the case shall proceed non-capital. This ruling shall be without
prejudice to the Commonwealth to file an amended . . . notice if
it subsequently becomes aware of evidence in support of an
aggravating factor.
Buck, 709 A.2d at 896-97 (some citations and footnotes omitted); see also
Commonwealth v. Walter, 966 A.2d 560, 565 (Pa. 2009).
Instantly, we agree with the Commonwealth that Appellant’s claims
change and are difficult to follow. Nonetheless, to the extent Appellant argues
that there was insufficient evidence supporting the Commonwealth’s notice of
aggravating circumstances, Appellant cites case law that supports the trial
court’s reasons for denying Appellant’s pre-trial motion challenging the
sufficiency of the evidence. See Appellant’s Brief at 20 (citing
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Commonwealth v. Buonopane, 599 A.2d 681, 684 (Pa. Super. 1991) for
the proposition that “‘the prosecution has no inherent burden to prove pretrial
that aggravating factors exist’” and Commonwealth v. Scarfo, 611 A.2d
242, 260-61 (Pa. Super. 1992), for the proposition that “it is inappropriate to
issue a pretrial ruling on whether the testimony will be sufficient” before the
penalty hearing, and Buck, although Buonopane and Scarfo pre-dated
Buck). Moreover, although the jury deadlocked on the imposition of the death
penalty, it found Appellant guilty of several felony offenses including the
murder of the decedent and the attempted murder of Duarte, who was seated
in the front passenger seat of the decedent’s vehicle when Appellant shot past
her and struck the decedent. Cf. Walter, 966 A.2d at 565 (noting that a
subsequent finding by a jury may render moot a pre-trial challenge to
aggravating circumstances).
For these reasons, Appellant’s claim that there was no evidence
supporting the notice of aggravating circumstances lacks merit. Accordingly,
the trial court properly denied Appellant’s pre-trial motion seeking to preclude
the death penalty and strike the notice of aggravating factors.8 Therefore, no
relief is due.
5. Preservation of Evidence
____________________________________________
8 Further, because the record and law supported the trial court’s ruling denying
Appellant’s pre-trial motion to preclude the death penalty and strike the notice
of aggravating circumstances, we discern no merit to Appellant’s contention
that the Commonwealth’s decision to proceed under the death penalty
prejudiced jury selection or the outcome of trial.
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Appellant claims that the Commonwealth’s failure to preserve the event
data recorder from his own vehicle requires a new trial because the police had
custody over his car after the shooting, but favorable information was lost
after the police released it to his insurance company. Appellant’s Brief at 30.
Appellant contends that the recorder from his vehicle could contain
information corroborating his trial testimony about the incident in the
AutoZone parking lot and support his claim of self-defense. Id. at 30. For
these reasons, Appellant asserts that Commonwealth acted in bad faith. Id.
Appellant’s argument includes general principles stated in Commonwealth
v. Daidone, 684 A.2d 179 (Pa. 1996),9 and Commonwealth v. Smith, 615
A.2d 321 (Pa. 1992). Id. at 30-31.
As noted above, the Commonwealth argues that Appellant’s failure to
comply with Chapter 21 of the Rules of Appellate Procedure prevent
meaningful review. Commonwealth’s Brief at 17, 39. The Commonwealth
further asserts that Appellant waived this claim by failing to object at the
earliest opportunity and apparently raising it for the first time in his post-
sentence motion. Id. at 39. In any event, the Commonwealth argues that
Appellant failed to establish that it acted in bad faith because the police had
custody of the vehicle for one year before releasing it and Appellant did not
____________________________________________
9 Appellant cites to Daidone using the name “Martorano,” who was another
appellant in that case. See Daidone, 684 A.2d 179 (listing both Albert
Daidone and Raymond Martorano as appellants). However, because Daidone
is listed as the lead appellant, we refer to the case as “Commonwealth v.
Daidone” or “Daidone.”
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request an inspection of the vehicle until two weeks before trial. Id. at 40-
41.
The trial court did not discuss waiver, but concluded Appellant failed to
establish a claim of prosecutorial misconduct. As the trial court explained:
Bad faith is required for a due process violation where merely
potentially useful evidence is destroyed before the defense has
the opportunity to examine it. Commonwealth v. Snyder, 963
A.2d 396 (Pa. 2009).
[Appellant] argues that [his] car was released to an insurance
company prior to [his] attempt at extracting information from the
Event Data Recorder in the vehicle. The record establishes that
[his] vehicle was towed to the Palmer Police Department, and then
stored there for one year. During that time, the car was available
for inspection. Despite having more than ample time to do so,
[Appellant] did not request an inspection of the vehicle until after
its release. The record is void of any bad faith on behalf of the
Commonwealth. Therefore, the [Commonwealth] made
[Appellant]’s car, a 2016 Nissan Versa, available to the [d]efense
for a reasonable period of time.
Order, 10/14/19, at 22-23.
Following our review, we agree with the Commonwealth that Appellant’s
failure to cite in the record where he preserved this claim before the trial court
warrants a finding of waiver. See Pa.R.A.P. 302(a), 2117(c), 2119(e). We
note that Appellant’s two citations in his brief are misplaced because neither
Daidone nor Smith directly involve a claim of prosecutorial misconduct based
on the alleged loss of evidence. Rather, those cases concerned whether
double jeopardy barred retrial due to the Commonwealth’s misconduct and
not the ruling on the misconduct itself. See Daidone, 684 A.2d at 182-84;
Smith, 615 A.2d at 324. Moreover, Appellant’s bald assertion that the
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Commonwealth acted in bad faith fails to raise any meaningful challenge to
the trial court’s determinations that the recorder, or the information contained
therein, constituted potentially useful information and that Appellant failed to
establish the Commonwealth’s bad faith. Accordingly, while we find this issue
waived, Appellant’s argument merits no relief. See Pa.R.A.P. 302(a),
2119(a), (c); see also Commonwealth v. Wholaver, 177 A.3d 136, 160
(Pa. 2018).
6. Batson
Appellant asserts that the trial court erred in failing to sustain his
Batson challenge. Appellant’s Brief at 35. Appellant asserts that the jury
pool consisted of 136 total possible jurors but only 3 African Americans. Id.
at 36. Appellant further notes that the Commonwealth peremptorily struck
Juror 34, an African American, which did not exhaust its peremptory strikes.
Id. Appellant argues that the Commonwealth’s explanation for its strike
concerned the juror’s hesitation to general questions concerning the principles
and the conduct of trial, but that the Commonwealth accepted jurors who
expressed similar hesitations after further questioning and rehabilitation. Id.
at 37. Appellant concludes that he is entitled to a new trial because “the jury
pool was not reflective of his race or the population of the county” and the
Commonwealth failed to “provide a logical race neutral reason” for striking
Juror 34. Id. at 37.
The Commonwealth argues that the trial court properly rejected
Appellant’s Batson claim concerning Juror 34. Commonwealth’s Brief at 50.
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According to the Commonwealth it presented several race-neutral reasons for
striking Juror 34, the record supported those reasons, and the trial court
accepted those reasons as race-neutral. Id. at 52-53. The Commonwealth
adds that Appellant provides no record support that it did not strike other
jurors with similar issues. Id. at 53. The Commonwealth concludes that
Appellant failed to establish purposeful racial discrimination. Id. at 54.
A Batson claim presents mixed questions of law and fact.
Commonwealth v. Edwards, 177 A.3d 963, 971 (Pa. Super. 2018).
Therefore, our standard of review is whether the trial court’s legal conclusions
are correct and whether its factual findings are clearly erroneous. Id. This
Court has explained:
In Batson, the [Supreme Court of the United States] held that a
prosecutor’s challenge to potential jurors solely on the basis of
race violates the Equal Protection Clause of the United States
Constitution. When a defendant makes a Batson challenge
during jury selection:
First, the defendant must make a prima facie showing that
the circumstances give rise to an inference that the
prosecutor struck one or more prospective jurors on account
of race; second, if the prima facie showing is made, the
burden shifts to the prosecutor to articulate a race-neutral
explanation for striking the juror(s) at issue; and third, the
trial court must then make the ultimate determination of
whether the defense has carried its burden of proving
purposeful discrimination.
Id. (citations and quotation marks omitted). “The trial court should consider
the totality of circumstances when determining whether the prosecutor acted
with discriminatory intent or engaged in purposeful discrimination.”
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Commonwealth v. Towles, 106 A.3d 591, 602 (Pa. 2014) (citation omitted).
This Court must give great deference to the trial court’s finding about the
absence of discriminatory intent in peremptory challenges, and we will not
overturn it unless it is clearly erroneous. See id.Instantly, the trial court addressed Appellant’s claim as follows:
[Appellant] established a prima facie case because (1) [Appellant]
is an African American, (2) the Commonwealth exercised a
preemptory challenge against Juror 34, who was a member of the
[Appellant]’s race, and (3) [Appellant] made a statistical and
circumstantial argument.[10] In the last prong of the prima facie
case, [Appellant] states that out of 136 total jurors, there were
three African Americans. [Appellant] argues that the
Commonwealth only utilized seven of the available twenty
preemptory strikes, which [Appellant] suggests is evidence that
the Commonwealth calculated its use of preemptory challenges.
In addition, [Appellant] argued that the Commonwealth accepted
the rehabilitation of other jurors, who were non-African American.
After this court’s prima facie finding, the burden shifted to the
Commonwealth to articulate a race-neutral explanation for
striking Juror 34. The individual voir dire of Juror 34 raised
multiple issues for the Commonwealth. The Commonwealth
based the preemptory strike of Juror 34 on the basis that he “had
some hesitation regarding all doubt versus reasonable doubt. He
had some hesitation concerning motive. He wanted to know
motive. And . . . his comment [regarding graphic exhibits]. . . I
don’t know if I’m going to have nightmares about this.” The
Commonwealth further explained saying, “My confidence [in Juror
34] is whether he would pay attention to the exhibits based upon
his reluctance to look at stuff, even though he said he would be
____________________________________________
10 Both Appellant and the trial court referred to Appellant and the prospective
juror’s race. As this Court noted, the United States Supreme Court makes
clear that a “defendant may object to race-based exclusions of jurors through
the use of peremptory challenges regardless of whether the defendant and
the excluded jurors share the same race.” Commonwealth v. Hill, 727 A.2d
578, 584 n.7 (Pa. Super. 1999) (discussing Powers v. Ohio, 499 U.S. 400(1991)).
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impartial, it’s certainly a basis for us to have some hesitation
about this juror.”
This [c]ourt concluded that Juror 34 was inconsistent and arguably
unconvincing enough for the Commonwealth to show that a race-
neutral, rather than a discriminatory, reason was relied upon
when striking Juror 34.
Order, 10/14/19, at 27-28.
Following our review of the relevant voir dire transcript, the hearing on
Appellant’s Batson challenge, the parties’ arguments at the trial and in this
appeal, the trial court’s findings of fact, conclusions of law, and its reasoning,
we affirm. The record supports the trial court’s findings of fact and the trial
court appropriately considered whether the Commonwealth presented a race-
neutral reason for striking Juror 34. See Towles, 106 A.3d at 602; Edwards,
177 A.3d at 971. Appellant presented statistical and circumstantial evidence
to support his claim of prima facie claim of discrimination;11 however, on this
record, we agree with the trial court that Appellant has failed to establish that
the trial court erred or abused its discretion in accepting the Commonwealth’s
race-neutral explanations. While Appellant refers to the Commonwealth’s
acceptance of other similarly situated jurors, he did not present any evidence
in the record to support this contention, nor does he identify or discuss any
such evidence in his brief. Accordingly, Appellant has not demonstrated
____________________________________________
11 To the extent that Appellant suggests the composition of the jury pool itself
violated the principles of Batson, that argument would merit no relief. First,
Appellant did not preserve a challenge to the composition of the jury pool.
Second, Appellant has not produced any evidence that the procedures for
selecting the pool were discriminatory.
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purposeful discrimination in the Commonwealth’s decision to strike Juror 34
or any error in the trial court’s ruling. See Edwards, 177 A.3d at 971.
Accordingly, no relief is due.
7. Sentencing
In his remaining claims, Appellant raises two arguments that his
mandatory life sentence was unconstitutional, and he asserts that the trial
court should have informed the jury that Appellant could receive a mandatory
life sentence without parole if convicted. We address Appellant’s two
constitutional arguments together.
First, Appellant asserts that his sentence violates Alleyne. Appellant’s
argument refers to his first-degree murder sentence and, without proper
citation to a statute, quotes a statutory provision concerning sentences for
third-degree murder convictions for an individual previously convicted of
murder or voluntary manslaughter. See Appellant’s Brief at 40-41 (quoting
42 Pa.C.S. § 9715). Appellant then suggests that that Section 9715 requires
a finding of fact concerning “element or ingredient of the charged offense” and
that “a life sentence is a fact that must be determined beyond a reasonable
doubt.” Id. at 41.
Second, Appellant contends that a sentence of life without parole
violates the federal and Pennsylvania constitutions’ prohibitions against cruel
and unusual punishment. Id. at 42. Appellant acknowledges precedent
rejecting similar arguments, but he asserts that “times have changed” and
cites two articles to claim an equivalency between a sentence of death and life
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imprisonment. Id. at 42-43 (citing an article and book to state that over
200,000 people in the United States are “serving life or virtual life sentences”).
In short, Appellant asserts that “[i]t is equally immoral as sentencing a person
to the death penalty because that person [serving life in prison] will die in
prison” and that “[d]eath by incarceration is a death sentence and should be
reversed, alongside death by execution, for the worst offenders.” Id. at 43.
To the extent Appellant challenges his sentence based on Alleyne or
the constitutional prohibition on cruel and unusual punishment, those claims
implicate the legality of his sentence. See Commonwealth v. Lawrence,
99 A.3d 116, 122, 124 (Pa. Super. 2014). Therefore, our standard of review
is de novo, and our scope of review is plenary. Id.Instantly, we conclude Appellant’s constitutional arguments are wholly
misplaced. Appellant’s Alleyne claim is premised on a sentencing statute that
does not apply to the instant case. Further, our review confirms that the
statutes concerning life without parole sentences in death penalty cases do
not involve the finding of an additional fact that increases the sentence as
Appellant contends is required pursuant to Alleyne.
Specifically, the relevant statutes12 make clear that the trial court must
impose a sentence of life imprisonment when the jury does not impose a death
____________________________________________
12 The relevant statutory provisions are as follows: (1) 18 Pa.C.S. § 1102(a)(1)
provides that “a person who has been convicted of a murder of the first degree
. . . shall be sentenced to death or to a term of life imprisonment in
accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for
(Footnote Continued Next Page)
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sentence. See 18 Pa.C.S. 1102(a)(1); 42 Pa.C.S. § 9711(a). The fact of the
conviction mandates the life sentence, and pursuant to 61 Pa.C.S. § 6137,
Appellant must serve the sentence without the possibility of parole. See 61
Pa.C.S. § 6137(a)(1); cf. Commonwealth v. Batts, 66 A.3d 286, 296 (Pa.
2013) (discussing the interaction of former Section 1102(a) and 6137).
Because these statutes authorize Appellant’s life without parole sentence
absent the need to find any facts beyond his conviction for first-degree
murder, Alleyne does not apply.
As to his cruel and unusual punishment claim, Appellant’s boilerplate
reference to evolving standards simply does not carry his burden of
demonstrating that his sentence is unconstitutional. See Commonwealth v.
Yasipour, 957 A.2d 734, 741 (Pa. Super. 2008) (noting that this Court must
presume the validity of “a punishment selected by a democratically elected
____________________________________________
murder of the first degree)[;]” (2) 42 Pa.C.S. § 9711(a)(1) provides that
“[a]fter a verdict of murder of the first degree is recorded and before the jury
is discharged, the court shall conduct a separate sentencing hearing in which
the jury shall determine whether the defendant shall be sentenced to death
or life imprisonment[;]” and (3) 61 Pa.C.S. § 6137 provides that “The board .
. . may release on parole any inmate to whom the power to parole is granted
to the board by this chapter, except an inmate condemned to death or
serving life imprisonment.” 18 Pa.C.S. § 1102(a)(1), 42 Pa.C.S. §
9711(a)(1); 61 Pa.C.S. § 6137(a)(1) (emphasis added). Our Supreme Court
has stated that “that life has intrinsic value and should not be taken by the
state without good cause, proven to our highest standard, whereas life
imprisonment remains our default punishment for capital cases.” See
Commonwealth v. Eichinger, 915 A.2d 1122, 1138 (Pa. 2007). Therefore,
it appears that Pennsylvania law recognizes that the death penalty is a more
severe sentence than the “default” sentence of life without parole. See id.- 32 -
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legislature against the constitutional measure, we presume its validity” and
that “[a] heavy burden rests on those who would attack the judgment of the
representatives of the people”). Appellant fails to cite any case law to support
his argument. Further, our review reveals no Pennsylvania case law at this
juncture indicating that a life imprisonment without parole sentence is the
equivalent of the death penalty for an adult offender based on changing
societal standards. Consistent with the United States Supreme Court, our
Supreme Court has determined that a mandatory sentence of life without
parole for a juvenile offender violates the prohibition against cruel and unusual
punishment, but that rule remains limited to juvenile offenders.
Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. Super. 2017)
(rejecting an eighteen-year-old offender’s cruel and unusual punishment claim
that relied on Miller v. Alabama, 567 U.S. 460 (2012)). For these reasons,
we conclude that Appellant’s cruel and unusual punishment claim fails.
In his final issue, Appellant contends that the trial court erred in denying
his request to instruct the guilt-phase jury “with regard to the penalty for [a]
non-capital life sentence.” Appellant’s Brief at 44. Appellant, apparently
referring to his Alleyne claim, contends that it is necessary to inform the jury
of this fact.
It is well settled that
[w]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
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its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.
Rodriguez, 174 A.3d at 1146 (citation omitted).
As discussed above, Appellant’s Alleyne claim is misplaced, and his
related argument that the guilt-phase jury required an instruction to find facts
enhancing his sentence lacks any support. We add that Appellant cites no
legal authority to support his claim that he is entitled to an instruction
regarding punishments during the guilt phase of a capital trial. To the
contrary, this Court rejected a similar claim in Rodriguez. See id. at 1146-
47 (noting that the length of punishment is not a proper inquiry before a jury
charged with determining guilt or innocence). Accordingly, the trial court
properly denied Appellant’s requested instruction, and Appellant’s claim merits
no relief. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2021
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