DocketNumber: 412 CAP
Judges: Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer
Filed Date: 11/23/2005
Status: Precedential
Modified Date: 10/19/2024
OPINION
This is a direct appeal from two sentences of death imposed by the Lancaster County Court of Common Pleas. On November 27, 2002, following a capital jury trial, appellant was convicted of two counts of first degree murder,
At the penalty phase, with regard to the murder of Terry Smith, the jury found three aggravating circumstances: the killing was committed during the perpetration of a felony (burglary),
The jury determined that, for each of appellant’s murders, the aggravating circumstances outweighed the mitigating circumstances, and accordingly, it returned two sentences of death against appellant. On January 9, 2003, the trial court formally imposed the two death sentences as well as an aggregate term of 60 to 120 years of imprisonment on the related charges. No post-sentence motions were filed.
Appellant filed notice of direct appeal to this Court on January 15, 2003. Appellant filed a statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b), to which the Commonwealth responded. On July 17, 2003, pursuant to Pa.R.A.P. 1925(a), the trial court filed an opinion addressing the claims raised by appellant on appeal. For the reasons set forth below, we affirm the verdict and the sentences of death.
I. Sufficiency of the Evidence
We begin, as we do in all death penalty direct appeals, by independently reviewing the evidence to ensure that it is sufficient to support the first-degree murder convictions.
The evidence adduced at trial established the following facts. On Saturday, September 1, 2001, appellant, along with Steven Estes, Raymond Navarro Perez, and Michael Bourgeois, drove to the home of Lloyd and Beverly Good in Lititz, Lancaster County, Pennsylvania, intending to commit a burglary while the Good family was absent on vacation. In furtherance of the agreement, the perpetrators gained entrance through a side garage door and ransacked the home. They stole a 1996 green Chevrolet Suburban and a 1996 silver Saturn sedan, both of which had been parked in the garage. They also stole a number of weapons: a .22 caliber revolver, a .32-20 caliber revolver, a Marlin 12 gauge bolt action shotgun, an Ithaca 12 gauge pump shotgun, a 30-06 Remington rifle, a Browning 300 Winchester Magnum rifle, two boxes of 300 shells, three boxes of 30-06 shells, two blocks of .22 shells, assorted hunting knives, a Jennings “Buckmaster” compound bow, a Jennings “Bear” bow, two 10-pump BB guns, and one one-pump BB gun. Cash and other assorted household and personal items were also stolen, including dishes and a taxidermist mounted fox.
The burglary was discovered by the Good family upon returning on Monday, September 3, 2001, at approximately 8:00 a.m. and was reported to police. That same day, the
On September 6, 2001, at approximately 10:00 a.m., the Ephrata Borough Police Department received a telephone call from Diane Lamm, an employee of Terry Smith. Ms. Lamm advised the police that Terry Smith had not come to work during the morning hours that day, that she had not heard from him and that he usually reported to work in a reliable and consistent manner. Ms. Lamm reported that Lucy Smith was also not at work as an elementary school principal, which was unusual. Detective David Shupp and Officer Douglas Heilman responded to the Smith residence at approximately 10:30 a.m. and attempted to gain the attention of residents inside by knocking on the door and ringing the doorbell. They found the front door locked, but discovered that the rear sliding door was unlocked. Detective Shupp then checked in with his office and learned that Bourgeois was the son of Lucy Smith, that his fingerprint had been discovered at the scene of the Good burglary, and that firearms had been stolen from the house. Detective Shupp then requested additional assistance and was joined by Detective Ballinger and Sergeant Kurtz of the Ephrata Borough Police Department, and Officer Diane Houston from the Ephrata Township Police Department.
At approximately 10:55 a.m., the officers entered the residence through the unlocked sliding door and did a quick sweep
In the late morning hours of September 6, 2001, Corporal Raymond Guth of the Pennsylvania State Police and Detective Shupp went to the Rodriguez residence to interview Bourgeois regarding the Good burglary. Bourgeois admitted that he and Perez had committed the burglary. Bourgeois also stated that Perez had told him that the items taken from the Good residence were stored at Perez’s residence on Plum Street in Lancaster City. Bourgeois was subsequently arrested on the burglary charge. Detective ’ Brad Ortenzi of the Ephrata Police Department and Detective Sergeant Edward Tobin of the Warwick Township Police Department remained at Rodriguez’s residence to interview her. During that discussion, which took place on the front porch, appellant May came downstairs and Rodriguez introduced him to the detectives. Appellant agreed to talk to the detectives after they finished their conversation with Rodriguez. At about 3:30 p.m., the detectives began asking appellant about the whereabouts of Bourgeois over the days leading up to September 6, 2001. Upon request by Rodriguez, the detectives left the front porch and they asked appellant if he would accompany them to the police station. Appellant agreed.
During the conversation at the police station, appellant admitted to the detectives that he was involved in the Good burglary. Near the end of the interview, the detectives informed appellant that Bourgeois’ parents, Terry and Lucy Smith, were found dead, and asked if appellant had any
After arriving at the Ephrata Borough Police Station, appellant reviewed and signed a document confirming that he wanted to speak to the police, acknowledging that he had asked for an attorney several hours earlier, and confirming that he initiated a new discussion. Appellant was then given Miranda warnings again, which he acknowledged in writing. Appellant then gave a statement to Detectives Ortenzi and Tobin in which he confessed to participation in the killings of Terry and Lucy Smith. Appellant stated, inter alia, that he had worn rubber gloves to the Smith residence and that Bourgeois did not, and that he was wearing jeans and a tee shirt which he had subsequently placed in the Rodriguez house. Appellant also admitted to police that during the assaults on Terry and Lucy Smith, he went downstairs to get knives from the kitchen, and he used a knife to cut Lucy Smith’s throat and shot her once.
The police obtained a search warrant for the Rodriguez home later the same night and executed it immediately. The clothing worn by Bourgeois and appellant during the murders was found in a dark green plastic garbage bag in the laundry room along with three bloody knives, a bloody claw hammer, Terry Smith’s wallet, a purse with a cell phone, papers and cards belonging to Terry and Lucy Smith, a key ring, a roll of
After the officers left, Rodriguez enlisted the help of her two teenage daughters and two young men to remove the two firearms from the residence and to dispose of them. On September 8, 2001, after a tip about suspicious activity by three juveniles, police recovered the .32 caliber Colt handgun from a dumpster located in Akron, approximately one-half mile from the Rodriguez residence. It had been wrapped in plastic wrap, placed inside a Pizza Hut bread sticks box, and taped shut with masking tape. On September 26, 2001, Detective Shupp, with the cooperation of the two male juveniles recruited by Rodriguez, recovered the .22 caliber revolver which had been buried in a cornfield in Akron.
Autopsies of the bodies of Terry and Lucy Smith were performed on September 7, 2001, by Wayne Ross, M.D., the Lancaster County forensic pathologist. At trial, Dr. Ross testified that Terry Smith was stabbed 47 times, his neck was cut at least five times, he was shot “execution-style” five times, and he was strangled or asphyxiated. There were no defensive wounds on Terry Smith. The evidence established that Terry Smith was tortured before being killed.
Other scientific testing indicated that the blood discovered on the latex gloves and the DNA on the pants and tee shirt appellant was wearing at the time of the murders, both confiscated from the Rodriguez residence, were Lucy Smith’s. Lucy Smith’s blood was also found on the 13-1/2" knife recovered from the Rodriguez home. Appellant’s left thumb print was on the back of Terry Smith’s Ephrata rec card,
This evidence, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, supports appellant’s first-degree murder convictions. The evidence was sufficient to permit the jury to conclude, beyond a reasonable doubt, that appellant intentionally, deliberately, and with premeditation participated in the murders of Terry and Lucy Smith. These victims were unlawfully killed; appellant actively participated in the killings; and that active participation, combined with the fact that the victims were assaulted with deadly weapons on vital parts of their bodies, was sufficient to permit the jury to find that appellant harbored a specific intent to kill. Even if appellant did not inflict the specific injuries which caused each of the Smiths’ deaths, the evidence proved that he clearly shared that intent with his accomplice, Bourgeois. Additional evidence of appellant’s specific intent to kill included the state
Accordingly, the evidence was sufficient to sustain appellant’s convictions for murder in the first degree.
II. Ineffective Assistance of Counsel
Appellant raises three claims, all deriving from events at trial, but as to which no contemporaneous objection was raised. Apparently recognizing the resulting waiver of these claims, appellant, who is represented by new counsel upon appeal, alleges the ineffective assistance of his trial counsel. Specifically, appellant alleges that trial counsel was ineffective for failing to object to: (1) the improper bolstering of Commonwealth witnesses during the guilt phase; (2) the Commonwealth’s misstatement of the law on the mitigating circumstance of age during the penalty phase; and (3) the trial court’s improper instruction to the jury, during the penalty phase, that United States Supreme Court precedent was relevant in determining whether age was a mitigating factor.
This Court has abrogated the procedural rule requiring new counsel to raise claims of previous counsel’s ineffectiveness at the first opportunity after new counsel is appointed. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (overruling Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977)). In Grant, this Court announced a new general rule
In its Pa.R.A.P. 1925(a) opinion, the trial court found that these claims should be dismissed without prejudice to appellant’s right to pursue them under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq. The trial court nevertheless addressed the underlying merits of each of these claims, which appellant had raised in his Rule 1925(b) statement as separate issues of prosecutorial misconduct and trial court error, and determined that each was meritless. To the extent the claims would sound in trial court error, they are waived due to the absence of contemporaneous objections. See Pa.R.A.P. 302(a); Commonwealth v. Dougherty, 580 Pa. 183, 860 A.2d 31, 37 (2004) (failure to object results in appellate waiver). The claims are not defaulted to the extent they sound in ineffective assistance; however, the Bomar exception to Grant does not apply so as to make the claims reviewable on this direct appeal. The claims were not raised when the matter was within the jurisdiction of the trial court and, as a consequence, the court did not hold an evidentiary hearing at
III. Penalty Phase Claims
Appellant raises two penalty phase claims, aspects of which trial counsel preserved by making timely objections. Appellant first contends that the trial court abused its discretion in ruling that the Commonwealth could use hearsay evidence to prove his prior bad acts, including armed robberies and a shooting, in order to impeach Dr. Neil H. Blumberg, a forensic psychiatrist who testified for the defense. The background for this claim is as follows: The defense suggested that Dr. Blumberg would testify to the existence of three mitigating factors: (1) that appellant was under the influence of an extreme mental or emotional disturbance at the time of the murder; (2) that appellant’s ability to appreciate the criminality of his conduct and his ability to conform his conduct to the requirements of the law were substantially impaired; and (3) that appellant’s family background reflected circumstances that could be considered mitigating.
Before Dr. Blumberg testified, the defense made an oral motion in limine to preclude the Commonwealth from cross-examining him about appellant’s alleged criminal conduct in the two weeks before the murders. Specifically, the defense moved to exclude alleged statements made by appellant, which were contained in a police report, as well as statements by Estes, Sheaffer and Pam Shirk, all indicating that appellant had committed, or claimed that he had committed, several armed robberies and a shooting within that time period.
*657 I don’t think there’s any question that the factual basis for the expert’s opinion is subject to cross examination. If that’s what he wrote in his report, that’s what he wrote in his report. The report reflects accurately what he learned from the defendant. And I think the Commonwealth is entitled to explore that with this witness. I don’t think there is any doubt about that. That’s basic cross examination of an expert opinion.... The opinion is only as good [as] the facts on which it’s based----So I just don’t think there’s any way that you can avoid his being cross-examined.
* * * *
If you want to keep it out, you have to think about whether you want to call this witness. That really is the terrible choice that you have. I will instruct the jury that the evidence of prior bad acts doesn’t go to whether he is a person of bad character. That they’re to consider that testimony on the basis—on the topic of the reliability of the opinion expressed by this witness.
N.T. Sentencing, at 282-83. In response to the trial court’s ruling, defense counsel decided not to pursue any personal opinion from Dr. Blumberg that depended upon the impressions he formed during his interviews with appellant. Instead, the doctor explained what the reports of previous psychiatric evaluations of appellant had revealed, concerning his mental state.
Appellant acknowledges that prior bad acts evidence may be admissible for some relevant purpose other than to show criminal propensity or bad character. See Pa.R.E. 404(b)(2) (“Evidence of other crimes, wrongs, or acts may be admitted for other purposes.... ”). Appellant also acknowledges that one such relevant purpose is to impeach an expert witness. Appellant argues, however, that a witness may not be impeached based upon mere hearsay, unless the hearsay consists of prior inconsistent statements made by that very witness. Appellant argues that his own statements, as memorialized in Corporal Guth’s report, were a police officer’s written account of what appellant said, a classic example of double hearsay;
The Commonwealth responds that the trial court properly ruled that the factual basis for the expert’s opinion was subject to cross-examination and that the Commonwealth was entitled to test the reliability of Dr. Blumberg’s proffered expert conclusions. The Commonwealth notes that the trial court’s ruling was limited to permitting such cross-examination only if the expert’s testimony and diagnosis were based on appellant’s statements to Dr. Blumberg that he had not been involved in any other violent criminal activity in the two weeks preceding the murders. The Commonwealth notes that it is for the jury to assess the credibility of evidence and that it is entitled to challenge the veracity of evidence proffered by the defense.
With respect to appellant’s hearsay argument, the Commonwealth submits that the proffered cross-examination did not involve hearsay because the prosecutor’s questions to Dr. Blumberg would not have been testimony and, in any event, the purpose of the cross-examination would have been to challenge the facts upon which Dr. Blumberg had based his diagnosis, not to prove the truth of the statements which
In response to appellant’s claim that his right to confront the witnesses against him was violated by the court’s ruling, the Commonwealth argues waiver because appellant did not raise that objection at trial or in post-sentence motions and, in the alternative, that appellant’s right to confrontation was never implicated because, as a result of defense counsel’s strategic response to the trial court’s ruling, the Commonwealth never pursued the relevant line of inquiry. Finally, with respect to appellant’s claim that the trial court precluded him from offering evidence concerning his family background, the Commonwealth again argues waiver due to the absence of objection below, and then notes that, in any event, the trial court never ruled that appellant could not present evidence concerning his family background, including testimony regarding his father. The Commonwealth only asked that the specific crimes committed by appellant’s father not be revealed to the jury, and appellant’s counsel agreed that the specific crimes committed by appellant’s father were irrelevant.
Rulings on the admissibility of evidence, including evidence proffered at the penalty phase of a capital trial, are within the discretion of the trial judge, and such rulings will form no basis for appellate relief absent an abuse of discretion. See Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550 (2002); see also Commonwealth v. Rice, 568 Pa. 182, 795 A.2d 340, 355 (2002) (plurality) (trial court did not abuse its discretion in ruling that if appellant offered evidence of his good character during penalty phase, then the Commonwealth would be allowed to offer evidence of appellant’s bad character during its rebuttal). We first note that the Commonwealth is correct that appellant’s claim that the trial court’s ruling
The objection appellant did preserve concerned the trial court’s basic ruling that, if Dr. Blumberg testified to opinions or diagnoses which were based in part on his interviews with appellant, then the Commonwealth could cross-examine the doctor on the factual bases for those opinions, including whether appellant had committed other crimes in the two weeks before the murders. There are various, distinct theoretical aspects to appellant’s objection: first, whether the trial court erred in ruling that the Commonwealth could cross-examine Dr. Blumberg concerning the accuracy of the factual bases for his opinions; second, whether that cross-examination could include references to prior bad acts committed by appellant to rebut evidence that the doctor’s diagnosis assumed that appellant had not committed those acts; and third, whether the good faith basis for the cross-examination, or any necessary proof of the substance of the cross-examination, could be based upon hearsay accounts.
In his brief, appellant acknowledges that the Commonwealth could cross-examine Dr. Blumberg concerning the accuracy of the factual assumptions that were the basis for any opinion he might offer on appellant’s mental state, as derived from his interviews with appellant, and that the cross-examination could include references to appellant’s prior bad acts.
[Prosecutor]: ... This whole basis is impeachment of this doctor that the defendant was not being truthful with him and your opinion is going to be thrown off because he— because the defendant lied to you.
[Defense Counsel]: You know, we’re making presumptions here. He is charged with several acts that could be termed violent.
[Prosecutor]: Yeah.
[Defense Counsel]: But no one has established that he committed any acts of violence during the course of those acts.
[Prosecutor]: On redirect you can say he hasn’t been convicted of them if you want I guess.
[Defense Counsel]: How do you cross-examine with that? Bring in hearsay from reports?
[Prosecutor]: No. They’re admissions. His statement to the police is admissions. His statement to Pam Shirk saying he shot the guy on the bike is an admission. His statement to Rosanna Sheaffer that he shot the guy on the bike is an admission.
[Defense Counsel]: So you’re limiting your cross examination of Blumberg to statements that [appellant] himself made about this?
[Prosecutor]: I think Steve Estes as well. It’s impeachment. I’m not offering it for the truth. It’s all impeachment. Steve Estes says he shot the guy on the bike, too. I don’t have anything written out in the form of exactly what I’m going to say, but I think it’s all relevant. But I’m— [The Court]: I think we understand what the issue is, and I understand your objection, but I think you have my ruling. Let’s get the jury in here and get started.
N.T. Sentencing, at 283-85. During this exchange, trial counsel did not affirmatively forward an objection that the cross-
As noted by the Commonwealth, appellant’s statements to police, Shirk, and Sheaffer that he had committed crimes in the two weeks prior to the murders would appear to fall within the exception to the hearsay rule pertaining to party admissions. See Pa.R.E. 803(25). Additionally, the record indicates that all of the declarants of these inculpatory statements, other than appellant, testified for the Commonwealth at the guilt and/or penalty phases of trial. Thus, it appears that the Commonwealth possessed the requisite good faith basis for
Appellant’s second penalty phase claim involves the trial court’s ruling that his out-of-court apology to the daughters of one of the victims was inadmissible. The defense proffer in this regard was as follows. Linell and Megan Smith are the daughters of victim Terry Smith. Early in the case, the Smith sisters expressed to the prosecutor’s office that they were strongly opposed to the death penalty. One of the sisters contacted defense counsel before trial because she felt that their opposition to the death penalty was not being considered by the prosecutor. Apparently, counsel then maintained contact with the sisters during the course of the trial, and asked whether they would be willing to meet with appellant. The Smith sisters ultimately agreed and they met with appellant at the Lancaster County Prison after the guilty verdict but before the sentencing hearing. According to counsel, the sisters told him that, during their prison conversation with appellant,
the things that he said included various times where he apologized for what occurred, that he was sorry, and they noted shame in—and he had a hard time looking them in the eye and he was ashamed of what he was talking about.
There was a question asked by Linell ... if you had three wishes what would they be, and apparently [appellant’s] response was I would take back everything that happened and if I had that then I wouldn’t need another two.
N.T. Sentencing, at 364-68. Counsel represented that appellant also wrote a three-page “apology letter” to the Smith sisters after this meeting. Counsel noted that he had considered whether to recommend that appellant testify, if testimony from the Smith sisters was deemed inadmissible, but ultimately recommended that appellant should not testify.
Citing Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), the trial court noted that it would exclude the testimony of the Smith sisters because, under Pennsylvania law
Defense counsel responded by arguing two reasons why, “despite the appellate case law,” he believed testimony concerning the out-of-court statements was admissible. First, counsel argued that appellant’s statements should be deemed reliable because the Smith sisters “had an opportunity not, only to hear from [appellant] but to look at him and an opportunity to judge his state of mind and the sincerity of his apology and sincerity of his other statements.” Second, counsel argued that the statements were admissible because they were statements “made by the defendant” which, though not “technically” “admissions,” nevertheless were statements by a “party to the case” which “indicate[d] a state of mind.” N.T. Sentencing, at 368-71.
The prosecutor countered that permitting the Smith sisters to testify to appellant’s out-of court statements would deprive him of a fair opportunity to cross-examine the alleged expression of remorse, whereupon the defense responded that the Commonwealth could instead emphasize the Smith sisters’ personal motives, i.e., their opposition to the death penalty. The Commonwealth noted that such a scenario would merely place before the jury the irrelevancy of the sisters’ views. Following this exchange, the trial court reiterated its ruling that the proffered evidence concerning appellant’s out-of-court
Appellant now claims that testimony relating to his out-of-court apology to the Smith sisters was admissible as a mitigating circumstance which set him apart from other first-degree murderers. Appellant does not argue that the proffered evidence falls under any of the numerous hearsay exceptions recognized in this Commonwealth; instead, he argues that his out-of-court apology was not hearsay at all, because it “was not offered for its truth (that he was truly sorry), but rather for the mere fact that it occurred.” Brief for Appellant, at 35. In appellant’s view, the expression of remorse, whether sincere or not, has “independent relevance and significance,” and the jury could have been instructed accordingly. In support of his argument, appellant notes the United States Supreme Court’s general holding that a capital penalty phase jury may not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death, citing Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).
The Commonwealth responds that, while a defendant may present relevant mitigation evidence at the sentencing hearing, the jury still has the duty of assessing the credibility of that evidence and the Commonwealth is entitled to challenge its veracity and credibility. The Commonwealth notes that the relevance and veracity of appellant’s alleged expression of remorse depended, not upon what the Smith sisters said, but upon appellant’s credibility—which the Commonwealth would have been precluded from challenging due to appellant’s decision not to testify. The Commonwealth also posits that in excluding the testimony of the Smith sisters, the trial court
Appellant’s claim is waived because he did not raise his current argument below. As the above description of the proffer and ruling reveal, appellant argued to the trial court that his apology was relevant precisely to show its truth—i. e., to show that he was truly sorry and remorseful. Counsel asked the court to admit appellant’s apology, by way of the Smith sisters’ testimony, based upon the fact that the sisters “had an opportunity not only to hear from him but to look at him and an opportunity to judge his state of mind and the sincerity of his apology and sincerity of his other statements.” N.T. Sentencing, at 371. Appellant now changes his position and argues that his out-of-court apology should have been admitted because it was not hearsay, as it was not offered for its truth. This is a wholly distinct theory, which was not proffered below.
In any event, both versions of the claim fail. A capital defendant at the penalty hearing may present relevant evidence in mitigation. 42 Pa.C.S. § 9711(a)(2); Rice, 795 A.2d at 356. Evidence is relevant to mitigation if it is probative of any of the enumerated mitigating circumstances set forth in 42 Pa.C.S. § 9711(e), including the “catchall” provision of subsection (e)(8), which encompasses, “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” This Court has noted that the subsection (e)(8) mitigating circumstance “ ‘obviously mirrors the requirements’ ” set forth by the United States Supreme Court in Skipper. Bomar, 826 A.2d at 852 (quoting Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1054 (2002)). Skipper required that, “in capital cases, the sentencer may not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Bomar, 826 A.2d at 851 (citing Skipper, 476 U.S. at 4, 106 S.Ct. 1669). This Court has also recognized that, “[ijmplicit in the fact that the
Given the broad standard governing what qualifies as mitigation evidence, we have no doubt that a defendant’s testimonial expression of remorse at the penalty phase could be deemed relevant to his character. However, the question here is whether the out-of-court expression of remorse appellant proffered is admissible against a hearsay challenge; plainly, we think, it was not. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa.R.E. 801(c); Commonwealth v. McCrae, 574 Pa. 594, 832 A.2d 1026, 1034 (2003). Rule 802 provides that, “[hjearsay is not admissible except as provided by these rules [the Rules of Evidence], other rules prescribed by the Pennsylvania Supreme Court, or by statute.” McCrae, 832 A.2d at 1034. Appellant’s alleged apology to the victim’s daughters was not relevant if it was not offered for its truth. Testimony by the victim’s daughters as to appellant’s apology clearly would have constituted hearsay.
The case sub judice is very similar to Young, in which the defendant also declined to testify on his own behalf during the penalty phase. In an attempt to present evidence of his remorse, the defendant there sought to introduce letters he had written to a member of a religious order concerning his case, but the trial court ruled that the letters were inadmissible hearsay. On appeal, this Court held that the trial court properly excluded the letters because the Commonwealth could not cross-examine the defendant regarding their content. This Court specifically noted that “to allow the letters
IV. Statutory Review
Finally, pursuant to the Sentencing Code, this Court is required to conduct a statutory review of the death sentences and must affirm those sentences unless we determine 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 findings of at least one aggravating circumstance specified in subsection (d).
42 Pa.C.S. § 9711(h)(3). The jury unanimously found three statutory aggravating circumstances as to the murder of Terry Smith—ie., that the killing was committed during the perpetration of a felony (burglary); appellant had been convicted of another murder at the time of the current offense; and the offense was committed by means of torture, and two statutory aggravating circumstances as to the murder of Lucy Smith—ie., the killing was committed during the course of a felony (burglary and involuntary deviate sexual intercourse); and appellant was convicted of another murder at the time of the current offense. The evidence amply demonstrated that appellant committed two murders, of which he was convicted, during the perpetration and commission of a burglary and involuntary deviate sexual intercourse, and that the murder of Terry Smith was committed by means of torture. Thus, the
Accordingly, we affirm appellant’s convictions and sentences of death and dismiss appellant’s claims of ineffectiveness of trial counsel without prejudice to appellant’s right to raise those claims on collateral review under the PCRA.
. 18 Pa.C.S. § 2502(a).
. 18 Pa.C.S. § 3502(a).
. 18 Pa.C.S. § 903(a)(1), (2).
. 18 Pa.C.S.§ 3123(a)(1), (2).
. 42 Pa.C.S. § 9711(d)(6).
. 42 Pa.C.S. § 971 l(d)(l 1).
. 42Pa.C.S. § 9711(d)(8).
. 42 Pa.C.S. § 9711(e)(1).
. 42 Pa.C.S. § 9711(e)(8).
. Our sua sponte review of the sufficiency of the evidence is performed only as to the first degree murder convictions and not with regard to any related convictions. See, e.g., Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 773 (2004).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. The apparent reason for the torture was to obtain the PIN numbers to Terry Smith’s bank cards, which were stolen and later recovered at the Rodriguez residence. See Trial Court slip. op. at 17-18 (noting that witnesses testified that the Smiths would be bound with duct tape, with
. Presumably, this was a membership card to the Ephrata Recreation Center.
. Family background is not a specific mitigating circumstance recognized by the Sentencing Code, but rather would fall within the "catchall” mitigator provided in 42 Pa.C.S. § 9711(e)(8). The family background proffer consisted of a history of mental illness in appellant’s family members, supposedly placing appellant at an increased risk of developing such disorders. The evidence also included Dr. Blumberg's conclusion that appellant's Borderline Personality Disorder was caused, in part, by appellant’s knowledge of his father's past, including a capital conviction and death sentence. Appellant's condition allegedly deterio
. The record reveals that appellant admitted to police, Shirk, and Sheaffer that he had committed crimes prior to the Good burglary and the Smith murders. N.T. Sentencing, at 284. The record demonstrates that Estes also told the police about the shooting incident. N.T. Sentencing, at 285. The exhibits attached to appellant’s brief contain appellant’s statements to police that he was driving a truck while Estes reached out the window and shot a man riding a bike. Sheaffer told police that Estes told her that appellant was driving the truck and that Estes was a passenger, when appellant stopped "to ask an Amish guy on a bike directions.” According to Sheaffer's statement, appellant then shot the man on the bike in the head or neck and possibly ran him over.
. Brief for Appellant, at 9 ("Demonstrating that Blumberg relied on faulty information was clearly relevant to impeaching his conclusions."); id. at 23 ("Assuming arguendo that prior bad acts may be admitted for the limited purpose of impeaching an expert's opinion. ...").
. After the quoted exchange, the defense made a tactical decision not to pursue the area of inquiry. A side-bar exchange during cross-examination corroborates trial counsel’s deliberate strategy in this regard, as he stated:
As the court knows, I have some concern about facts about previous acts of violence getting out and, as a result of that, I made a strategic decision in this case to restrict Dr. Blumberg's testimony to themes that are running through previous psychiatric reports that Dr. Blumberg reviewed. And I restricted his testimony to those reports only and not to any interview he conducted with [appellant].... I did that purposely so we could avoid this line of cross examination, whether [appellant] was lying and opening up the door and bringing in people making statements about what he said.
N.T. Sentencing, at 320. We offer no view on whether trial counsel made a reasonable strategic decision concerning the scope of Dr. Blumberg’s testimony, as that issue is not before us on this direct appeal.
. See Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 851-53 (2003) (proposed penalty phase testimony by victim’s mother, concerning her personal opposition to the death penalty, was not relevant mitigation evidence, as it had no bearing on defendant’s character, prior record, or circumstances of the event).
. The Prothonotary of this Court is directed to transmit a complete record of this case to the Governor of Pennsylvania, pursuant to 42 Pa.C.S. § 9711 (i).