Commonwealth v. Smith, W., Aplt.

[J-70-2014][M.O. – Eakin, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 681 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 3/28/13 in the Court of
v. : Common Pleas, Criminal Division of
: Delaware County at No. CP-23-
: 0004586-1994
WAYNE A. SMITH, :
:
Appellant : ARGUED: November 18, 2014
DISSENTING OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: December 21, 2015
I respectfully dissent in this case centered upon the propriety of a death-penalty
verdict. Primarily, I believe that the trial court erred in permitting the Commonwealth to
elaborate upon an aggravating circumstance via testimony from the sister of the victim
of a previous killing and in refusing to allow material and appropriate life qualification
questions during juror voir dire.
Initially, although I take no issue with the majority’s explanation that the
Commonwealth is permitted to undertake some reasonable development of the facts
underlying a conviction serving as an aggravating circumstance, I am not comfortable
with the concept of “short-chang[ing]” a jury. Majority Opinion, slip op. at 8. Evidentiary
determinations are regulated by rules and precepts designed to maintain fundamental
fairness and administered through the exercise of sound discretion by the trial courts.
In the application, there are many instances in which relevant information -- favorable to
either the Commonwealth or the defense – properly is withheld from lay jurors. As
such, and since the jurors have no personal stake in the matter, respectfully, I find the
majority’s “short-changing” concept to be unsuited to the subject area.
Moreover, while developing facts pertinent to prior convictions serving as
aggravating circumstances may be permissible in the abstract, doing so via contested
testimony of a homicide victim’s close relative is, in my view, unduly prejudicial,
particularly in a scenario in which the underlying conviction had been secured by guilty
plea. Accord Brief for Appellant at 20 (“To present evidence now that demonstrated a
brutal, unprovoked and malicious killing, a crime much worse than that agreed to by the
Commonwealth, is simply not fair.”). Injection of eyewitness testimony relative to an
aggravator merely centered on the fact of a conviction also fosters the potential for mini-
trials concerning collateral facts. While, again, I recognize that the Commonwealth is to
be afforded some latitude to present factual circumstances underlying previous
convictions serving as aggravating circumstances, I believe that the development
should be subject to judicious control by the trial courts and that the prosecution should
be required to employ a less problematic methodology (such as introduction of the guilty
plea colloquy).
Concerning the life qualification issue, I note that Appellant has presented an
extensive argument predicated upon the insightful opinion of a federal district court in
United States v. Johnson, 366 F. Supp. 2d 822 (N.D. Iowa 2005). As Appellant relates,
Johnson elaborately explains the difference between: 1) case-specific voir dire
questions designed to determine whether jurors harbor some bias relative to critical
facts to be demonstrated by trial evidence, and 2) interrogatories seeking to pre-commit
jurors to a particular verdict. See id. at 845-49. Johnson concludes, appropriately in my
view, that the former line of case-specific questions may, in fact, be constitutionally
[J-70-2014][M.O. – Eakin, J.] - 2
required to empanel a fair and impartial jury. See id. at 848 (explaining that a
prohibition on such questions “may unconstitutionally impede a party’s ‘ability to
exercise intelligently [a] challenge for cause against those biased persons on the venire
who as jurors would unwaveringly impose’ either a life or death sentence after a finding
of guilt.’” (quoting Morgan v. Illinois, 504 U.S. 719, 733, 112 S. Ct. 2222, 2232 (1992))).
The majority appears to implicitly reject Johnson’s approach to case-specific
questions based on the commonly-accepted admonition, as articulated in
Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), that “[n]either counsel for
the defendant nor the Commonwealth should be permitted to ask direct or hypothetical
questions designed to disclose what a juror’s present impression or opinion as to what
his decision will likely be under certain facts which may be developed in the trial of the
case.” Id. at 456, 826 A.2d at 849 (emphasis added); accord Ellington v. State, 735
S.E.2d 736, 754 (Ga. 2012) (“[V]oir dire is not intended to pre-try the case on
hypothesized facts and get jurors to commit to the outcome based on that speculative
proof.”). I believe, however, that this rationale applies only to pre-commitment-type
interrogatories (i.e., category “2” in the above paragraph) and not to case-specific
questions appropriately framed to inquire into juror biases relative to critical facts. See
Johnson, 366 F. Supp. 2d at 848-50; accord United States v. Fell, 372 F. Supp. 2d 766,
773 (D. Vt. 2005) (“A balance must be struck between seeking to discover biased jurors
who could not be impartial given particular facts and getting jurors to commit to support
a particular perspective on the evidence.”).
For my part, I would follow the lead of the California Supreme Court in People v.
Cash, 50 P.3d 332 (Cal. 2002), which held that, by absolutely precluding case-specific
questioning pertaining to the fact of a previous homicide during life qualification, “the
trial court created a risk that a juror who would automatically vote to impose the death
[J-70-2014][M.O. – Eakin, J.] - 3
penalty on a defendant who had previously committed murder [or manslaughter] was
empaneled and acted on those views, thereby violating defendant’s due process right to
an impartial jury.” Id. at 342-43.
I recognize that the form of case-specific questions geared to assessing juror
biases should be controlled by trial courts, and that Appellant’s specific framing was not
ideal, in that the interrogatory was not couched conditionally, in terms of what the trial
evidence might show. See Johnson, 366 F. Supp. 2d at 849 (explaining that case-
specific questions “should be prefaced by ‘if the evidence shows’ or some other
reminder that an ultimate determination must be based on the evidence at trial and the
court’s instructions.” (emphasis in original)). Nevertheless, since the Commonwealth
clearly had committed to pursuing the relevant aggravator and the Appellant’s proposed
question did not require jurors to commit to a particular result, but rather, concerned
whether they could fairly consider the evidence at large and the trial court’s instructions,
I do not find this factor to be dispositive. Indeed, only a modest adjustment to the query
was required to bring it into conformance with Johnson’s sound guidance.
A fair trial before an impartial factfinder is a fundamental component of due
process of law. See Morgan, 504 U.S. at 727, 112 S. Ct. at 2228-29. Voir dire is a
primary mechanism by which the impartiality requirement is assessed and vindicated.
See Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 1634 (1981)
(“Without an adequate voir dire the trial judge’s responsibility to remove prospective
jurors who will not be able impartially to follow the court’s instructions and evaluate the
evidence cannot be fulfilled. Similarly, lack of adequate voir dire impairs the
defendant’s right to exercise peremptory challenges where provided by statute or rule[.]”
(citation omitted)). In my view, the majority’s wholesale rejection of Appellant’s position
[J-70-2014][M.O. – Eakin, J.] - 4
that reasonable, material, properly-framed case-specific voir dire should have been
permitted squarely undercuts these core principles.
Madame Justice Todd joins this dissenting opinion.
[J-70-2014][M.O. – Eakin, J.] - 5