Commonwealth v. Thomas, L., Aplt.

[J-85-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 760 CAP
:
Appellee : Appeal from the Judgment of
: Sentence entered on June 16, 2017
: in the Court of Common Pleas,
v. : Lancaster County, Criminal Division at
: CP-36-CR-0004095-2015.
:
LEETON JAHWANZA THOMAS, : ARGUED: December 4, 2018
:
Appellant :
OPINION
JUSTICE DOUGHERTY DECIDED: August 20, 2019
Following a jury trial, appellant Leeton Jahwanza Thomas (a.k.a. “Pie” Thomas)
was found guilty of two counts of first-degree murder for the stabbing deaths of Lisa
Scheetz and her minor daughter, H.S., one count of attempted murder for stabbing P.S.,
another minor daughter of Ms. Scheetz, and one count of burglary. 1, 2 After finding a
number of aggravating and mitigating circumstances and determining the aggravating
circumstances outweighed the mitigating circumstances, the jury returned two verdicts of
death. The trial court formally imposed two death sentences, plus a sentence of 20 to 40
years’ imprisonment for attempted murder and 3 to 6 years’ imprisonment for burglary.
1See 18 Pa.C.S. §2502(a) (criminal homicide); 18 Pa.C.S. §901(a) (criminal attempt); 18
Pa.C.S. §3502(a)(1) (burglary).
2S.S., a third minor daughter of Ms. Scheetz, and the sister of H.S. and P.S., was not
present when the crimes occurred.
This direct appeal followed3 and for the reasons expressed herein, we affirm the judgment
of sentence.
I. Sufficiency of the Evidence
As appellant has been sentenced to death, we must independently review the
record to determine whether the Commonwealth presented sufficient evidence to sustain
the convictions of first-degree murder. Commonwealth v. Hicks, 156 A.3d 1114, 1123
(Pa. 2017) (“in all capital direct appeals, this Court conducts an independent review of the
sufficiency of the evidence supporting a first-degree murder conviction, even if the
defendant does not raise the claim”), citing Commonwealth v. Zettlemoyer, 454 A.2d 937,
942 n.3 (Pa. 1982). In conducting our review, we view the evidence in the light most
favorable to the Commonwealth as the verdict winner in order to determine whether the
jury could have found every element of the crime beyond a reasonable doubt. Id.
To convict a defendant of first-degree murder, the Commonwealth must prove
beyond a reasonable doubt that the defendant unlawfully killed another human being, the
defendant acted with the specific intent to kill, and the killing was willful, deliberate, and
premeditated. Commonwealth v. Dowling, 883 A.2d 570, 573 (Pa. 2005), citing
Commonwealth v. Spotz, 716 A.2d 580, 583 (Pa. 1998); 18 Pa.C.S. §2502(a). The
specific intent to kill may be inferred from the defendant’s use of a weapon on a vital part
of the victim’s body. Hicks, 156 A.3d at 1124. Furthermore, the Commonwealth may
sustain its burden by wholly circumstantial evidence and the jury is free to believe all,
part, or none of the evidence. Id. at 1123, citing Commonwealth v. Cousar, 928 A.2d
1025, 1032-33 (Pa. 2007).
3See 42 Pa.C.S. §9546(d) (final order imposing death penalty directly appealable to
Supreme Court); 42 Pa.C.S. §9711(h)(1) (sentence of death subject to automatic review
by Supreme Court).
[J-85-2018] - 2
Viewing the evidence in the light most favorable to the Commonwealth, the record
establishes appellant was acquainted with the victims for many years as their neighbor in
a rural area of Lancaster County.4 On April 15, 2015, following an investigation prompted
by Ms. Scheetz’s allegations that appellant had sexually assaulted H.S. and S.S., officers
of the Pennsylvania State Police (PSP) arrested appellant and charged him with a number
of sexual offenses. Appellant, who was born in Jamaica, but is a permanent United States
resident holding a green card, was released on bail, and his formal arraignment in the
Lancaster County Court of Common Pleas was scheduled for June 26, 2015.5
In the early morning hours of June 11, 2015, Mr. and Mrs. Hershey heard terrified
screaming emanating from the basement apartment. They opened the door connecting
their home to the basement apartment, and found P.S. on the stairs covered with blood.
Mr. and Mrs. Hershey pulled P.S. up the stairs into their home, locked their doors, and
called 911. P.S., who suffers from cerebral palsy and has a below-average I.Q., told Mr.
and Mrs. Hershey, who also knew appellant, that “Pie” had attacked her. When police
and EMT personnel arrived, P.S. repeated several times that “Pie did this[.]”6 N.T. Trial,
6/7/17 at 162. P.S. had been stabbed 10 times.
Police and EMT personnel entered the basement apartment to discover Ms.
Scheetz and H.S. dead from numerous stab wounds and it appeared the intruder gained
4 Appellant’s residence was located on Conowingo Road in Quarryville, approximately
one-half mile from the victims’ home. The victims lived in the basement apartment of a
two-story home on Spring Valley Road, owned by Steven and Jennifer Hershey, who lived
upstairs from the Scheetz family. Appellant had recently remodeled the basement
apartment; appellant’s wife had been Ms. Scheetz’s friend since childhood and a baby-
sitter for all three Scheetz girls.
5As part of his release on bail, the court entered an order prohibiting appellant from
having any contact with H.S., S.S., or other members of the Scheetz family.
6Additionally, the 911 call was played for the jury at trial, and P.S. can be heard naming
“Pie” as the suspected attacker.
[J-85-2018] - 3
entry to the apartment by cutting a window screen. Autopsies revealed Ms. Scheetz
suffered 12 stab wounds to her chest and abdomen that penetrated her heart, lungs and
spleen, and H.S. suffered six stab wounds to her face, neck, and shoulder. One of the
stab wounds to the neck of H.S. was “through-and-through,” meaning the knife entered
the right side of the neck and exited the left side of the neck. N.T. Trial, 6/12/17 at 702.
Police immediately proceeded to appellant’s residence and drove past it, noticing
an upstairs light was on. After turning the cruiser around and positioning themselves,
police put spotlights on the house and, using a loudspeaker, told appellant to come
outside. Additional lights within the house came on, and appellant’s wife appeared at the
front door where police told her they needed to talk to appellant. Appellant thereafter
arrived at the door in bare feet, wearing only a bathrobe with no underclothing. While
securing the residence, which also housed appellant’s children and mother, the police
noticed a bathroom on the second floor had a wet floor, wet tub, wet wash cloth and a
towel on the floor, as if someone had very recently showered. The light in the second-
floor bathroom corresponded to the location of the light within the house seen by the
police during their initial drive by. The police arrested appellant and later that morning
secured a search warrant for the premises.
During the search, Trooper John Connelly entered a laundry room that held a
washer and dryer. Trooper Connelly opened the washer, noted a strong odor of bleach,
and saw the washer half-full of reddish-brown water that contained submerged items of
clothing. Next to the washer was an empty bottle of Clorox bleach. The items of clothing
recovered from the washer included a pair of appellant’s sneakers. The items were sent
to a crime laboratory for forensic testing, where a human blood stain was discovered on
a protected area of stitching on the left sneaker. Subsequent testing of that blood sample
revealed a DNA match to H.S.
[J-85-2018] - 4
PSP investigators contacted Red Rose K-9, a bloodhound search and rescue
organization, to attempt to track a path of the person who may have entered the basement
apartment through the screen. Red Rose K-9 personnel arrived at the scene
approximately 8 hours after the crimes were committed, retrieved a scent from the screen
and delivered the scent to two bloodhounds. The first bloodhound, K-9 Ruben, tracked
the scent from the screen directly to the patio of appellant’s residence on Conowingo
Road. Thereafter, a second bloodhound, K-9 Heather, also tracked the scent from the
screen directly to appellant’s patio. Additionally, PSP personnel subsequently found and
removed several pairs of latex gloves and a camouflage cloth from the toilet drain in the
second-floor bathroom.
Prior to trial, appellant filed a motion requesting a hearing to determine whether
P.S. was competent to testify at trial and seeking related discovery, and a supplemental
motion requesting P.S. be evaluated by an expert. See Motion For Competency Hearing
And Related Discovery, 3/6/17; Supplemental Motion for Competency Evaluation,
5/17/17.7 The court denied the motions, but conducted a colloquy of P.S. outside the
presence of the jury and permitted the parties to question her as well. Thereafter, the
court determined she was competent to testify.8 During her subsequent testimony, P.S.,
7 In his pre-trial motion filed on March 6, 2017, appellant alleged only that P.S. has
“physical and mental handicaps” and “a learning disability,” and further described her as
being “a few years behind” in terms of her mental capacity. Motion For Competency
Hearing And Related Discovery, 3/6/17 at 2, ¶6. Appellant’s supplemental motion alleged
P.S. had a full-scale I.Q. of 46. Supplemental Motion for Competency Evaluation,
5/17/17.
8 As we explain more fully in our analysis of the issues raised on appeal, appellant also
requested the court permit him to introduce the expert testimony of Suzanne Mannes,
Ph.D., regarding factors that affect the accuracy of eyewitness testimony. The court
denied the motion, as well as petitioner’s post-trial motion to strike the penalty of death
on the basis Pennsylvania’s death penalty statute imposes no standards upon which the
jury may weigh aggravating versus mitigating circumstances. Moreover, prior to trial, on
the basis appellant was allegedly unaware he could be deported if convicted of the
[J-85-2018] - 5
among other things, identified appellant — as “Leeton” and “Pie,” and by pointing at him
— as the person who repeatedly stabbed her as well as her mother and sister on the
night in question. She remembered the specific date because it had been her last day of
school and her sister S.S. was not home, but was “at the beach[.]” N.T. Trial, 6/8/17 at
269. She recognized Pie because she had known him practically her entire life.9 Based
on the record, it is clear the evidence was sufficient to sustain the verdicts of guilty as to
two counts of murder in the first-degree.
II. Competency
Appellant’s first two issues on appeal are related and his first issue has two
components. He first claims the trial court erred and abused its discretion by (a) denying
his initial pre-trial motion requesting a competency hearing and related discovery with
respect to P.S.’s alleged intellectual and developmental limitations because they may
affect her competency to testify, and (b) denying his supplemental motion requesting a
competency evaluation to be conducted by an expert obtained by the defense after
appellant reviewed P.S.’s educational records which indicated she had a full-scale I.Q. of
46. In his second issue, appellant claims the competency colloquy conducted by the trial
court outside the presence of the jury was inadequate to establish P.S.’s competency to
testify because “the court did not focus any of its inquiry on P.S.’s ability to perceive an
event, recall the event, or communicate about it intelligently, or on her ability to
understand the duty to tell the truth under oath.” Appellant’s Brief at 33.
pending sexual assault charges, defense counsel objected to any evidence of potential
deportation. The trial court did not rule on this latter motion, but at trial, the court permitted
the Commonwealth to present evidence of appellant’s potential deportation as a possible
motive for the murders.
9 P.S. was 15 years old on the night of the attack and 17 years old at the time of trial.
[J-85-2018] - 6
A. Pre-trial requests for hearing and expert examination
The gravamen of appellant’s first issue is the assertion a pre-trial competency
hearing was “required” for the trial court to determine whether an expert’s evaluation of
P.S. was necessary to assist the court in determining whether she was competent to
testify at trial. See Appellant’s Brief at 24-28. Appellant alleges such a hearing was
necessary and required because P.S. is “significantly mentally disabled, with a full scale
I.Q. of only 46.” Id. at 24. Thus, appellant insists the trial court erred in denying his pre-
trial requests for a competency hearing, related discovery, and evaluation by an expert.
Appellant cites to three cases that purportedly support his claim. See Appellant’s Brief at
27, citing Commonwealth v. Koehler, 737 A.2d 225, 239 (Pa. 1999), Commonwealth v.
Boich, 982 A.2d 102, 109-110 (Pa. Super. 2009) (en banc), and Commonwealth v. Alston,
864 A.2d 539, 549-50 (Pa. Super. 2004) (en banc). The Commonwealth responds the
trial court’s decision to conduct a competency colloquy during trial, rather than a pre-trial
competency hearing was well within its discretion, and its decision should not be disturbed
on appeal absent an abuse of that discretion. In its opinion, the trial court first recognized
a witness is presumed to be competent, the determination of competency rests in the
sound discretion of the trial court, and then determined P.S. was competent to testify
based on its observation and evaluation of her during the competency colloquy conducted
outside the presence of the jury at trial. Trial Court Op. at 2-3 (unpaginated original).
Given the gravamen of appellant’s argument is the trial court was required to
conduct a pre-trial competency hearing, the cases he cites are inapposite, as none stand
for that proposition. In Koehler, the defendant was charged with double murder, and
during trial, he requested the court order a Commonwealth witness to undergo a
psychiatric evaluation on the basis the witness’s perceptions and recollections of the
events in question “may have been inaccurate because of her psychiatric instability and/or
[J-85-2018] - 7
drug use.” 737 A.2d at 239. The trial court denied the request, and in doing so, stated
on the record it had observed and heard the witness’s lengthy trial testimony and there
was nothing that would allow the court to conclude the witness was not competent “in her
ability to observe, her ability to recall, and her ability to relate events[.]” Id. On direct
appeal, Koehler claimed the trial court erred in denying his request. This Court noted
determinations of testimonial competency rest in the trial court’s sound discretion, and
the court is under “no obligation to order an investigation of the competency of a witness
unless the court has some doubt from having observed the witness.” Id., citing
Commonwealth v. Counterman, 719 A.2d 284, 295 (Pa. 1998). The Court noted
competency is presumed, the burden of proving incompetency rests on the challenging
party, and in order to be competent, a witness must have the ability “to (1) perceive an
event with a substantial degree of accuracy, (2) remember it and (3) communicate about
it intelligibly (4) mindful of his or her duty to tell the truth under oath.” Id. (citation omitted).
Recognizing the trial court’s observations of the witness led it to conclude she was
competent to testify, this Court determined “we discern absolutely no abuse of discretion
in the refusal of the trial court to order that this witness undergo psychiatric evaluation.”
Id.
In Boich, the Commonwealth appealed an order entered by the trial court granting
a rape defendant’s pre-trial motion to direct the alleged victim-witness to undergo an
involuntary psychiatric examination “for purposes of deciding her competency to testify at
trial.” 982 A.2d at 104. An en banc panel of the Superior Court reversed. Pertinent to
the instant case, the appellate court noted, “[a]bove all, given the general presumption of
competency of all witnesses, a court ought not to order a competency investigation,
unless the court has actually observed the witness testify and still has doubts about the
witness’[s] competency.” Id. at 109-110. “[A] court ordered, involuntary psychiatric or
[J-85-2018] - 8
psychological examination ‘should never be the starting point’ for a competency
evaluation.” Id. at 110, citing Alston, 864 A.2d at 549 (additional citation omitted).
“Therefore, a court ought not to order an involuntary psychiatric examination of a witness
unless the record unequivocally demonstrates a compelling need for the examination.”
Id. (citation omitted). Moreover, in Alston, an en banc panel of the Superior Court noted,
“a plurality of our Supreme Court has concluded that a psychiatric examination of a
Commonwealth witness regarding competency may be ordered if a need for the
examination is demonstrated.” Alston, 864 A.2d at 549, citing Commonwealth v. Garcia,
387 A.2d 46 (Pa. 1978).
We conclude the trial court did not abuse its discretion when it denied the
requested pre-trial competency hearing because appellant did not demonstrate a
compelling need for it. Appellant’s initial motion alleged P.S. had undefined physical and
mental handicaps including a learning disability, and characterized her as “a few years
behind.” See Motion For Competency Hearing And Related Discovery, 3/6/17 at 2, ¶6.
Appellant’s supplemental motion alleged school records indicated P.S. “possess[ed] a
Full Scale I.Q. of 46[.]” Supplemental Motion For Competency Evaluation, 5/17/17 at 1,
¶4. On this basis, the supplemental motion requested the trial court order that P.S. be
evaluated by an expert obtained by the defense. However, there is nothing in these
assertions showing the necessity for a pre-trial competency hearing or the necessity for
evaluation by a psychiatrist or psychologist in lieu of a competency colloquy to be
conducted by the court at trial.
The law is clear that testimonial incompetence does not necessarily follow from
intellectual disability, see Commonwealth v. Anderson, 552 A.2d 1064, 1068-69 (Pa.
Super. 1988) (“mentally retarded” witness presumed competent to testify), appeal denied
[J-85-2018] - 9
571 A.2d 379 (Pa. 1989),10 or from insanity or mental illness, see Dowling, 883 A.2d at
577-78, citing Counterman, 719 A.2d at 295. In Counterman, supra, the capital murder
defendant, who killed his three children in a house fire, raised a pre-trial challenge to his
wife’s competency to testify, premised in part on her preliminary hearing testimony, in
which she exhibited difficulty in comprehending questions and articulating responses. To
support his claim, Counterman sought a court order compelling the release of Mrs.
Counterman’s psychological treatment records and requested the court order her to
undergo a psychiatric examination. At a hearing on the motion, Counterman introduced
his wife’s school records, which reflected she possessed an I.Q. consistent with a
diagnosis of intellectual disability. The trial court denied the requests. On direct appeal,
in discussing the propriety of the trial court’s denial of the requests, this Court noted the
mental competency of all witnesses is presumed and incompetency does not follow from
the fact of “mental illness.” 719 A.2d at 295. The Court then held, in pertinent part,
“Counterman’s bare assertions concerning Mrs. Counterman’s intelligence and her
slowness in responding to questions did not suggest she could not accurately describe
the events leading up to the fire. Consequently, the trial court properly exercised its
discretion in denying Counterman’s request for a competency examination of his wife.”
Id. at 296.
A trial court is not required to order a pre-trial competency hearing but may do so
in the sound exercise of its discretion. See id. at 295. Here, the chief allegations
contained in the pre-trial motions for a competency hearing were P.S.’s alleged learning
disability supported by a school record reflecting a below average I.Q. The record is clear
10 In years past, the term “mental retardation” was commonly utilized by the professional
community and courts. However, in Hall v. Florida, 572 U.S. 701, 704 (2014), the High
Court recognized the preferred term is “intellectual disability.” Accordingly, we use the
term “intellectual disability” or “intellectually disabled” unless we are quoting from cases.
See Commonwealth v. Bracey, 117 A.3d 270, 271 n.2 (Pa. 2015).
[J-85-2018] - 10
the trial court conducted a competency colloquy during trial, outside the presence of the
jury, during which it had the opportunity to carefully observe P.S. and consider whether
she was, in fact, competent to testify pursuant to the proper legal standard,
notwithstanding her physical and intellectual disabilities. Accordingly, we determine the
trial court did not err or abuse its discretion in denying appellant’s initial and supplemental
pre-trial motions seeking a pre-trial competency hearing, discovery and expert evaluation.
See e.g., Garcia, 387 A.2d at 55 (trial court did not abuse discretion at defendant’s murder
trial by failing to hold hearing or order psychiatric examination to determine competency
of schizophrenic witness residing in mental hospital).
B. Colloquy
Appellant alleges the competency colloquy the court conducted was deficient
because it was too “brief” and because “P.S. provided no verbal response to the majority
of the questions.” Appellant’s Brief at 29. Appellant concedes “[P.S.] was able to state
her age (17), her grade in school (11th), that if you say something that’s not the truth, it
would be ‘a lie,’ and that if the court stated that the DA was wearing a pink suit, that would
be ‘a lie.’” Id., citing N.T., 6/8/17 at 244-51. Appellant additionally concedes P.S. “[a]fter
much prompting,” replied in the affirmative when asked if she 1) promised to tell the truth,
and 2) would be able to answer questions about what she remembered from the night
she was stabbed. Id. Appellant claims, without further explanation, “the bailiff and court
reporter were assisting her with every question.” Id. at 30. Appellant also alleges P.S.
gave vague answers (“kind of” and “sort of”) when asked whether she remembered
someone coming to her house and doing bad things, and if she could tell time. Id.
Appellant also complains the court improperly sustained the Commonwealth’s objections
[J-85-2018] - 11
to certain questions posed to P.S. by defense counsel.11 Based on these alleged
deficiencies in the colloquy, appellant alleges the trial court’s determination P.S. was
competent to testify was reversible error, entitling him to a new trial, “at which a proper
colloquy of P.S. should be conducted to determine whether she is competent to testify.”
Id. at 35. Finally, appellant alleges the court’s error in finding P.S. competent to testify
cannot be dismissed as harmless. Appellant concedes the remaining circumstantial
evidence presented against him at trial was significant, but alleges it would have been
insufficient to convict him absent the eyewitness identification provided by P.S. Thus, he
claims it cannot be said her testimony did not contribute to the verdict.
The Commonwealth responds “[t]he trial court questioned and received
appropriate answers from [P.S.] as to why she was there, her knowledge of the difference
between a truth and a lie as well as her duty to tell the truth.” Commonwealth’s Brief at
15. The Commonwealth asserts the record indicates P.S. was able to understand the
questions asked and, despite an observed difficulty in expressing herself, to respond
intelligently and appropriately. Moreover, the court properly sustained the
Commonwealth’s objections “to defense counsel’s irrelevant question about a random
day of the week, as well as the previously asked and answered question concerning the
obligation to tell the truth.” Id. at 19. Thus, the Commonwealth maintains the court did
not err or abuse its discretion in determining P.S. was competent to testify. Even if the
court erred, the error was harmless because P.S.’s identification of appellant was
cumulative of the 911 call played for the jury, as well as the testimony of Mrs. Hershey,
11The Commonwealth’s objection to the defense query, “[D]o you understand what an
oath is[?],” was sustained because the court was satisfied P.S. had already stated she
knew the difference between a truth and a lie and had promised to tell the truth. The
Commonwealth’s objection to the defense query, “[D]o you remember what you were
doing last Monday?[,]” was sustained on the basis of relevance, and because any person
might have difficulty recalling specifics of routine past activity. N.T., 6/8/17 at 252-257.
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on-scene paramedics, and PSP troopers who testified at trial they heard P.S. identify
appellant as her attacker on the night she was attacked, and there was overwhelming
additional circumstantial evidence pointing to appellant’s guilt.
The trial court noted a witness is presumed to be competent, and further noted the
burden of proving incompetency rests on the party challenging competency. Trial Court
Op. at 2 (unpaginated original), citing Commonwealth v. Goldblum, 447 A.2d 234, 239
(Pa. 1982). The court set forth the four-pronged legal standard upon which to judge a
witness’s competency. Id., citing Koehler, 737 A.2d at 239. The court observed it
questioned P.S., “focusing on her ability to perceive an event, recall the event,
communicate about it intelligibly, and her ability to understand the duty to tell the truth[.]”
Id. at 2-3. The court added there was no difficulty in understanding P.S., and even though
she had some difficulty expressing herself, that difficulty was not an issue as to her
competence to testify. The court noted competency determinations rest in the sound
discretion of the trial court and will not be reversed absent a flagrant abuse of discretion.
Id. at 2, citing Commonwealth v. R.P.S., 737 A.2d 747 (Pa. Super. 1999) (court did not
commit flagrant abuse of discretion in determining six-year-old child witness/victim
incompetent to testify where witness had no memory of alleged criminal acts committed
against him).
The pertinent Rule of Evidence provides:
Rule 601. Competency
(a) General Rule. Every person is competent to be a witness except as
otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is incompetent to
testify if the court finds that because of a mental condition or immaturity the
person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
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(2) is unable to express himself or herself so as to be understood either
directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
Pa.R.E. 601.
In Anderson, supra, the Superior Court observed although children are presumed
competent to testify, “when a proposed witness is under fourteen years of age,” the
competency investigation “must be more searching in proportion to the proposed
witness’s chronological immaturity.” 552 A.2d at 1068 (citations omitted). The panel went
on to hold “the competency considerations applicable to a child witness are also
applicable to a retarded adult with the mental capacity of a child[,]” and “the determination
of the trial court regarding the testimonial competency of a mentally retarded person will
not be disturbed absent a clear abuse of discretion.” Id. The Anderson panel noted,
although the intellectually disabled witness in that case “did experience some difficulty in
understanding the questions[,] . . . she unambiguously identified [the appellant] as one of
the perpetrators of the crime[.]” Id. at 1069. Ultimately, the intermediate court was
“satisfied . . . the trial court conducted its inquiry into the testimonial competence of [the
intellectually disabled witness] in a thorough and conscientious manner, . . . [and] did not
abuse its discretion” in determining the witness was competent to testify. Id.
We cited Anderson with approval in Dowling, which involved the trial court’s
determination an allegedly mentally ill child witness was competent to testify. Although
the record showed there were no questions posed of the witness specifically regarding
her ability to perceive or recollect past events, we nevertheless observed “a trial court can
base its competency determination on criteria other than specifically-targeted questions,
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criteria such as the witness’s demeanor, alertness, thoughtfulness, sincerity and general
responses and testimony.” Dowling, 883 A.2d at 577, citing Commonwealth v. Hart, 460
A.2d 745, 747 (Pa. 1983) (trial court based competency evaluation on witness’s
demeanor during voir dire and testimony); Commonwealth v. Short, 420 A.2d 694, 697
(Pa. Super. 1980) (trial court’s opportunity to observe demeanor, alertness,
thoughtfulness and sincerity of child witness may be more informative than answers child
gives to certain questions). Having reviewed the record and all the circumstances, this
Court concluded Dowling failed to demonstrate the trial court abused its discretion in
finding the challenged witness competent to testify. Id.
Here, we have similarly reviewed the entire record, including the transcription of
P.S.’s responses during the competency colloquy and her trial testimony. 12 We are
satisfied the trial court properly conducted its inquiry and committed no abuse of
discretion in determining P.S. was competent to testify. Moreover, the Commonwealth’s
objections to defense questions regarding P.S.’s understanding of what an “oath” is, and
what she did “last Monday” were properly sustained. See Commonwealth v. Penn, 439
12 As an example of P.S.’s responses at trial, we note she testified her school year had
“ended” the day of the crime, and when asked when that was, she replied “[t]he 10 th.”
N.T., 6/8/17 at 268. She answered “no” when asked if S.S. was home that day, noting
S.S. was “at the beach.” Id. at 269. She also testified her house was in “Quarryville” on
“Spring Valley Road[;]” that “the Hersheys” or “Ms. Jen” and “Mr. Steve” lived in the same
house[;] and that she and her mother and sisters lived “[d]ownstairs.” Id. at 269-70. She
testified she, her mother, and H.S. “watched TV” that night “because we didn’t have to go
to school” the next day, and when asked what they were watching, she replied
“Supernatural.” Id. at 271-72. After identifying appellant, and being asked what he did,
she testified, “He hurt me.” Id. at 274. She testified he had “a knife[;]” she first saw him
“[i]n our kitchen[;]” and when asked how many times appellant stabbed the victims, she
replied, “I don’t remember how many times he did[,]” but it was “more than once[;]” and
she answered “yes” when subsequently asked “was it a lot of times?” Id. at 274-76. She
testified she went “upstairs[,]” saw Mr. and Mrs. Hershey, and “I told them I needed help.”
Id. at 277.
[J-85-2018] - 15
A.2d 1154, 1158-59 (Pa. 1982) (trial court properly determined twelve-year-old witness
was conscious of duty to testify truthfully, “notwithstanding his unfamiliarity with the
specific word ‘oath’”); Pa.R.E. 402 (“Evidence that is not relevant is not admissible.”);
Commonwealth v. Laird, 988 A.2d 618, 636 (Pa. 2010) (“the decision to admit or exclude
evidence is committed to the trial court’s sound discretion and its evidentiary rulings will
only be reversed upon a showing that it abused that discretion”).
III. Eyewitness Identification Expert
Appellant next claims the trial court erred in denying his request to present the
testimony of Suzanne Mannes, Ph.D., a cognitive psychologist and expert in the reliability
of eyewitness identification, who would have testified to specific factors affecting
perception and memory that may have influenced P.S.’s identification of appellant.
Specifically, Dr. Mannes was prepared to testify that P.S.’s identification of appellant was
“colored by stress and fear, by weapon focus, exposure time, cross-race identification,
and lighting.” Appellant’s Brief at 37. Appellant notes in Commonwealth v. Walker, 92
A.3d 766 (Pa. 2014), this Court held expert testimony regarding eyewitness identification
was no longer per se inadmissible in Pennsylvania, but is now admissible in the discretion
of the trial court in cases where the Commonwealth’s proof of identity is solely or primarily
dependent upon eyewitness testimony.13 Appellant argues the trial court erred in denying
13 Walker involved two armed gunpoint robberies, which occurred within two weeks of
each other against five victims who had never encountered the robber before. The victims
separately identified Walker as the robber via photo arrays and lineups. He was arrested
and charged with various crimes related to the two robberies, which were consolidated
for a single trial. A jury acquitted Walker of all charges related to the first robbery, but
convicted him of all charges related to the second.
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his request for an expert in this case because “P.S.’s identification of [appellant], while
not the sole evidence of [appellant’s] guilt, was certainly a primary piece of evidence
against him, and the only direct evidence against him.” Appellant’s Brief at 39-40.14
Additionally, appellant faults the trial court for characterizing the proposed
testimony “as a ‘request to present an expert to impeach the credibility of the sole
eyewitness to the crime.’” Id. at 36, quoting Trial Court Op. at 3 (unpaginated original).
Appellant asserts the Walker Court held expert testimony on psychological factors
impacting eyewitness identification is not intended to opine or speak directly to the
trustworthiness or reliability of a particular eyewitness. Instead, expert testimony
regarding eyewitness identification makes jurors aware of some of the limitations
eyewitness testimony may present, and “‘provides jurors with education by which they
assess for themselves the witness’s credibility.’” Id. at 37, quoting Walker at 784.
The Commonwealth responds Walker removed the per se ban on expert testimony
regarding eyewitness identification, in part due to the “use of DNA testing in overturning
convictions based on eyewitness testimony[.]” Commonwealth’s Brief at 20, citing
Walker, 92 A.3d at 782-84. The Commonwealth notes Walker stands for the proposition
that, generally, expert testimony regarding eyewitness identification is relevant “‘where
14In support of this claim, appellant cites to the holding in Commonwealth v. Selenski,
158 A.3d 102 (Pa. Super. 2017), appeal denied, 170 A.3d 1056 (Pa. 2017), where the
Superior Court applied Walker. In Selenski, the evidence of Selenski’s guilt, beyond an
eyewitness’s identification, consisted of circumstantial evidence of items taken from his
home and vehicle similar to items found at the crime scene. Appellant argues, “[t]o the
extent that the Superior Court in Selenski held that virtually any other evidence was
sufficient to render expert testimony regarding eyewitness identification inadmissible . . .
Selenski has taken the general suggestion of Walker too far.” Appellant’s Brief at 38. As
we denied allocatur in Selenski, and application of Selenski is unnecessary to the
resolution of the current appeal in any event, we do not consider or further address
appellant’s suggestion the decision of the Superior Court in that matter was flawed.
[J-85-2018] - 17
the Commonwealth’s case is solely or primarily dependent upon eyewitness
testimony.’” Id., quoting Walker, at 787 (emphasis added by Commonwealth). Here, the
Commonwealth contends its case was not solely or primarily dependent upon the
eyewitness testimony of P.S. because it “presented numerous pieces of evidence,
independent of P.S.[’s trial testimony] that established [appellant’s] identity as the
attacker.” Id. at 21. The Commonwealth argues, in addition to P.S.’s testimony, its case
also relied on the evidence of 1) the observed light in the appellant’s residence coinciding
with the location of the bathroom in which it appeared someone had very recently
showered; 2) the discovery of latex gloves and camouflage cloth clogging the drain in that
bathroom; 3) the washer containing “reddish brown bleach water” in which appellant’s
clothing was submerged; 4) the DNA match to H.S. of a blood stain on appellant’s sneaker
recovered from the bleach water, a finding not disputed by appellant’s own DNA expert;
and 5) the bloodhound tracking. Id. Similarly, the trial court concluded it did not abuse
its discretion in denying the requested expert testimony because “there was a significant
amount of other evidence, both physical and testimonial, that the Commonwealth
presented.” Trial Court Op. at 4 (unpaginated original).
In Walker, this Court noted “there is no doubt that wrongful conviction due to
erroneous eyewitness identification continues to be a pressing concern[.]” 92 A.2d at
780. We determined that “[o]ne way in which fact finders may be assisted in making more
accurate and just determinations regarding guilt or innocence at trial is through the
admission of expert testimony [regarding eyewitness identification].” Id. Accordingly, we
removed the per se ban on such evidence but recognized there are many “practical
concerns to permitting such testimony[,]” including the possibility of its proliferation “in
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numerous cases,” as well as “the cost of allowing expert testimony, possible claims of
ineffectiveness for failing to obtain an expert, and trials becoming a ‘battle of the experts,’
not only on questions of eyewitness identification, but also on related issues[.]” Id. at 787.
Accordingly, we envisioned “that allowing such expert testimony would be limited to
certain cases[,]” and that, generally, those cases “would be where the Commonwealth’s
case is solely or primarily dependent upon eyewitness testimony.” Id. We observed the
eyewitness identifications of Walker were the only direct evidence of his guilt and were
central to his conviction. Id. at 791.
Clearly, one of the concerns undergirding the decision in Walker is the fact that, in
certain cases, an accused’s guilt is determined by very little else than the testimony of an
eyewitness. The case sub judice is simply not such a case. While we do not discount
the importance of P.S.’s testimony at trial, appellant’s identity as the perpetrator was
established beyond a reasonable doubt by evidence establishing numerous facts,
circumstances, and inferences pointing to him. The concerns regarding wrongful
convictions based on the vagaries of eyewitness testimony that undergird Walker simply
do not exist here. Indeed, the fact the blood discovered on appellant’s shoe was a DNA
match to one of the victims ameliorates any concern a later DNA test might exonerate
appellant.
Accordingly, we determine this is not the type of case in which the primary
evidence of guilt is the testimony of an eyewitness based on an encounter under
circumstances in which the witness’s memories and perceptions might be affected by
psychological and experiential factors, an understanding of which could aid a jury in
determining the accuracy and believability of the identification. Because appellant’s guilt
[J-85-2018] - 19
and his identity as the perpetrator were established by many facts apart from P.S.’s
eyewitness testimony, there was no need for expert testimony regarding eyewitness
identification, and the trial court did not abuse its discretion in denying appellant’s request
to allow it.
IV. Evidence of Potential Deportation
Appellant alleges the trial court erred in permitting the Commonwealth to introduce
evidence of his potential deportation if convicted of the charges he sexually molested S.S.
and H.S. to establish a motive for the killings. Although he concedes evidence of the
charges themselves was relevant and admissible, appellant alleges, without any specific
supporting argument, that the probative value of his potential deportation was outweighed
by its prejudicial impact. He notes his potential deportation “was presented to the jury in
the prosecutor’s opening statement, his closing argument, and through the testimony of
the prosecuting officer, Corporal Todd McCurdy.” Appellant’s Brief at 41.15 Appellant’s
15 During his opening statement, the prosecutor remarked “[Appellant’s] next Court
appearance [regarding the sexual molestation charges] was June 26 th of 2015. He was
not going to just allow this to occur. He was not going to face the consequences, the
potential consequences of those charges, which were extensive incarceration and the
possibility of deportation. He was not going to allow that to occur.” N.T. Trial, 6/7/17 at
31. During the prosecutor’s examination of Corporal McCurdy, the following exchange
took place:
Q. [By the prosecutor] …And as part of your investigation here, did you
determine what the defendant’s immigration status is?
A. [By the witness] Green card holder.
Q. He’s a green card holder. Did you determine if he was facing potential
deportation if he was convicted in the sexual molestation case?
[J-85-2018] - 20
claim is grounded by the assertion his potential deportation was irrelevant and prejudicial
because the Commonwealth never established appellant was even aware he could
potentially be deported if convicted of the sexual molestation charges. “Without evidence
that [appellant] was aware of the possibility of deportation, potential deportation simply
could not have been a motive for the crimes.” Appellant’s Brief at 43.
The Commonwealth responds that the trial court enjoys broad discretion in
admitting or excluding evidence and the evidence of appellant’s immigration status and
potential deportation were admissible to prove motive. Commonwealth’s Brief at 22,
citing Commonwealth v. Philistin, 53 A.3d 1, 17 (Pa. 2012) (evidence to prove motive is
generally admissible; evidence of immigration status relevant and admissible to show
defendant’s motive to kill to avoid deportation even if “the Commonwealth emphasized
other potential motives”). The Commonwealth asserts it is permissible to presume the
holder of a green card is aware of deportation as a potential consequence of a criminal
conviction. Moreover, the Commonwealth notes the references at trial to potential
deportation were fleeting, and were presented in conjunction with other potential
A. Conviction of all charges, without getting into the specifics of those
charges, would have resulted in deportation, potentially.
N.T., 6/12/17 at 661-62.
In his closing argument the prosecutor remarked, “That was his motive. He was getting
rid of those witnesses. You heard that the next hearing [in the sexual molestation case]
was going to be June 26th. . . . He was not going to allow that to happen. He was not
going to sit by and let them convict him and face prison and potential deportation. He
took matters into his own hands[.]” N.T., 6/13/17 at 835-36. Additionally, the prosecutor
later said, “[Appellant’s] goal was to go in and get rid of all these witnesses, get rid of his
problem, get rid of the potential for prison, get rid of the potential for deportation. That
was his goal.” Id. at 861.
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consequences that would flow from a conviction. Thus, the Commonwealth claims there
was no abuse of discretion in permitting introduction of the evidence. Similarly, the trial
court determined appellant’s issue is meritless, because the challenged evidence was
admissible to prove motive and was “not unduly prejudicial.” Trial Court Op. at 5
(unpaginated original).
We first note, although appellant claims the prejudicial impact of the deportation
evidence outweighed its probative value, he makes no targeted argument whatsoever
describing the specific nature of the alleged prejudice. Appellant does not explain why
the evidence was prejudicial, and he cites no authority in support. There is no self-evident
prejudice here and the bare, unsupported claim the evidence was more prejudicial than
probative is waived. See Commonwealth v. Padilla, 80 A.3d 1238, 1255 n.16 (Pa. 2013)
(undeveloped claim neither explained factually nor supported by citations to law is
unreviewable and waived), citing Commonwealth v. Briggs, 12 A.3d 291, 326 n.34 (Pa.
2011) (undeveloped claim waived). Moreover, to the extent this Court could even note
expression of a view, unexpressed by appellant, of seemingly increased anti-immigrant
attitudes generally in American society, we would nevertheless conclude the evidence of
deportation in this case, even if prejudicial, was harmless error given, among other things,
the overwhelming amount of properly introduced evidence of appellant’s guilt and motive.
See Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017) (“Harmless error exists if the
state proves either: (1) the error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously admitted evidence;
or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming
[J-85-2018] - 22
and the prejudicial effect of the error was so insignificant by comparison that the error
could not have contributed to the verdict.”) (citation omitted).
We are left only with appellant’s alternative rationale — the evidence was irrelevant
and erroneously admitted because the Commonwealth did not establish appellant was
even aware of the possibility of deportation and thus, the threat of potential deportation
could not have been a motive for his crimes. The Commonwealth presented evidence
that appellant held a green card and could potentially be deported if convicted of the
sexual charges he faced. These facts were used to undergird a possible motive for the
murders among other possible motives. In Philistin, this Court considered whether
evidence the appellant was an undocumented alien was irrelevant and prejudicial where
the Commonwealth did not argue his immigration status and possible deportation was
evidence of his motive to shoot two police officers. Nevertheless, this Court held “[the]
appellant’s immigration status was relevant to show he had a motive to shoot the officers,
lest he be deported. This evidence is admissible as evidence of motive, even if the
Commonwealth emphasized other potential motives.” Philistin, 53 A.3d at 16-17. A trial
court’s decision to admit evidence of motive is subject to an abuse of discretion standard
on appellate review. Commonwealth v. Hairston, 84 A.3d 657, 670 (Pa. 2014).
Here, although the Commonwealth presented evidence through the testimony of
Corporal McCurdy that appellant was a green card holder who faced potential
deportation, the Commonwealth presented no evidence appellant was aware of this
potential consequence. For example, the Commonwealth did not present evidence
potential deportation had been discussed with appellant in the sexual molestation
proceedings or that appellant, at some other point, was informed deportation was a
[J-85-2018] - 23
potential consequence of his criminal conduct. Accordingly, while the Commonwealth’s
suggestion the holder of a green card is presumably aware deportation is a potential
consequence of criminal conduct has some facial appeal (because a criminal defendant’s
motive is generally unexpressed and provable by inference only), we reject it under the
facts of this case. There was no proper inference to be drawn between potential
deportation and motive to commit the killings if appellant, in fact, did not know deportation
was a potential consequence if convicted of the sexual charges. Nevertheless, to the
extent the court erred and abused its discretion in allowing the evidence to be admitted
absent a proper factual foundation, we determine the error is harmless. Burno, 154 A.3d
at 787.
V. Challenges to Pennsylvania’s Death Penalty Statute
Appellant claims the trial court erred in denying his post-trial motion to strike the
notice of death, because Pennsylvania’s death penalty statute, 42 Pa.C.S. §9711,
violates due process guarantees contained in the Fifth and Sixth Amendments to the
federal Constitution, and “permits imposition of the death penalty without a finding beyond
a reasonable doubt that the aggravating circumstances outweigh any mitigating
circumstances, in violation of Hurst v. Florida, 136 S. Ct. 616 (2016), and Ring v. Arizona,
536 U.S. 584 (2002).” Appellant’s Brief at 44-61, additionally citing Apprendi v. New
Jersey, 530 U.S. 466 (2000) (any fact increasing defendant’s sentence beyond statutory
maximum is an element that must be submitted to jury). The Commonwealth responds
that appellant’s argument has been consistently rejected by this Court. Commonwealth’s
Brief at 23, citing Commonwealth v. Roney, 866 A.2d 351, 361 (Pa. 2005) (rejecting claim
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Pennsylvania’s death penalty statute is invalid because it provides no standards for jury
to weigh aggravating and mitigating circumstances). The trial court responded in similar
fashion. Trial Court Op. at 5 n.16 (unpaginated original) (“The Supreme Court of
Pennsylvania has consistently rejected this argument.”), citing Roney and
Commonwealth v. Bronshtein, 691 A.2d 907 (Pa. 1997).16
In Roney, the defendant argued Pennsylvania’s death penalty statute violates,
inter alia, the Sixth Amendment because it does not require the jury to find the aggravating
circumstances outweigh the mitigating circumstances beyond a reasonable doubt. We
denied relief noting, “this Court has consistently rejected the argument that the
Pennsylvania death penalty statute is invalid because it imposes no standards by which
the jury can weigh aggravating versus mitigating circumstances.” 866 A.2d at 361, citing
Bronshtein and Zettlemoyer, 454 A.2d 937. Subsequently, the defendant in
Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013), raised the identical argument raised
in Roney, but asked this Court to reconsider Roney in light of United States v. Gabrion,
16 In this case, the trial court instructed the jury the Commonwealth was required to prove
each aggravating circumstance beyond a reasonable doubt and that by contrast
mitigating circumstances need only be proved by a preponderance, and the jury could
only return a death sentence if it unanimously found at least one aggravating
circumstance and no mitigating circumstances, or that the aggravating circumstances
outweighed the mitigating circumstances. N.T. 6/14/17 at 158-60. See 42 Pa.C.S.
§9711(c)(1)(iii) (aggravating circumstances must be proven by the Commonwealth
beyond a reasonable doubt, while mitigating circumstances can be proven by the
defendant by a mere preponderance of the evidence); see also 42 Pa.C.S. §9711(c)(1)(iv)
(allows sentence of death only where jury finds at least one aggravating circumstance
and no mitigating circumstances, or finds aggravating circumstances outweigh mitigating
circumstances). We recently noted this Court has repeatedly held these instructions pass
constitutional muster. Commonwealth v. Wholaver, 177 A.3d 136, 172 (Pa. 2018) (“[T]his
Court has previously rejected Appellant's claim that, pursuant to Ring, a trial court must
instruct a jury that, to sentence a defendant to death, they must determine that the
aggravators outweigh the mitigators beyond a reasonable doubt.), citing Roney, 866 A.2d
at 358-61, and Commonwealth v. Sanchez, 82 A.3d 943, 985 (Pa. 2013).
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648 F.3d 307 (6th Cir. 2011), where an analogous provision of the Federal Death Penalty
Act of 1994, 18 U.S.C.S. §§3591-3599, was initially held by a federal circuit panel to be
unconstitutional under Apprendi and Ring. We declined to reconsider our determination
in Roney, however, noting a subsequent decision by the Sixth Circuit, en banc, ultimately
concluded the reasonable doubt standard does not apply to the weighing of aggravating
and mitigating factors because the weighing process is not a factual determination, but
rather a “complex moral judgment.” Sanchez, 82 A.3d at 985, citing United States v.
Gabrion, 719 F.3d 511, 532 (6th Cir. 2013) (en banc). Thus, we held in Sanchez that our
decision in Roney was controlling, and later reaffirmed that position in Commonwealth v.
Wholaver, 177 A.3d 136 (Pa. 2018).
Here, appellant does not cite to or discuss Wholaver, which reinforced the vitality
of Roney. Instead, appellant claims Roney and Bronshtein, a case upon which the Roney
Court relied, must be “reexamined in light of Hurst[.]” Appellant’s Brief at 45. To that end,
appellant asserts that Hurst “clarified for the first time that, where the weighing of facts in
aggravation and mitigation is a precursor to a death sentence, the Sixth Amendment
requires the State to prove, to a jury, beyond a reasonable doubt, that aggravating
circumstances outweigh mitigating circumstances.” Id. at 45-46, citing Hurst, 136 S. Ct.
at 621-22 (emphasis supplied by appellant).
Appellant misreads Hurst. Succinctly, Hurst held unconstitutional a Florida death
penalty statute that required a judge to hold a separate hearing after a jury had rendered
an “advisory verdict.” 136 S. Ct. at 620-21. The High Court determined the sentencing
scheme violated the Sixth Amendment because it required a judge, as opposed to a jury,
to make the critical findings necessary to impose a sentence of death. The Pennsylvania
[J-85-2018] - 26
death penalty statute has no analogous provision. Moreover, contrary to appellant’s
suggestion, Hurst does not, explicitly or implicitly, require a jury to determine that
aggravating circumstances outweigh mitigating circumstances beyond a reasonable
doubt. Appellant’s claim in this regard has no merit, and we conclude the trial court did
not err in denying his post-trial motion to strike the notice of death.
VI. Statutory Review of Death Sentence
Although appellant does not raise this issue on appeal, we are required by statute
to conduct an independent review of the record to determine whether the sentences of
death were (i) the product of passion, prejudice, or any other arbitrary factor; or (ii) if the
evidence fails to support the finding of at least one aggravating circumstance set forth in
42 Pa.C.S. §9711(d). See 42 Pa.C.S. 9711(h)(1), (3) (sentence of death subject to
automatic review by this Court, which shall affirm unless it concludes either enumerated
factor is present); Hicks, 156 A.3d at 1129.
We have reviewed the entire record and hold appellant’s sentences of death were
not the product of passion, prejudice, or any other arbitrary factor. The sentences were
based on properly admitted evidence appellant illegally entered the basement residence
of the victims, who were potential prosecution witnesses against him in a pending sexual
assault case, and intentionally stabbed them to death. The evidence was sufficient to
support the following aggravating factors beyond a reasonable doubt as to each victim:
(1) the victim was a prosecution witness to a felony committed by appellant “and was
killed for the purpose of preventing [her] testimony” against him, 42 Pa.C.S. §9711(d)(5);
(2) the killing was committed in the perpetration of a felony, id. at §9711(d)(6); (3)
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appellant “knowingly created a grave risk of death to another person in addition to the
victim[,]” id. at §9711(d)(7); (4) appellant was “convicted of another murder . . . either
before or at the time of the offense at issue[,]” id. at §9711(d)(11); and (5) at the time of
the killing appellant was subject to a court order restricting his behavior toward the victim,
designed to protect the victim from appellant, id. at §9711(d)(18). The jury found two
mitigating circumstances by a preponderance of the evidence: (1) appellant has no
significant history of prior criminal convictions, 42 Pa.C.S. §9711(e)(1); and (2) the “catch-
all” mitigator, id. at §9711(e)(8), and found the aggravating circumstances outweighed the
mitigating circumstances.17
As the jury found the aggravating circumstances outweighed the mitigating
circumstances, the death sentences imposed comply with the statutory mandate and
there are no grounds upon which to vacate the sentences of death. Accordingly, we affirm
appellant’s convictions and sentences of death.
The Prothonotary of this Court is directed to transmit the complete record of this
case to the Governor of Pennsylvania in accordance with 42 Pa.C.S. §9711(i).
Chief Justice Saylor and Justices Baer, Todd, Donohue and Mundy join the
opinion.
Justice Wecht files a concurring opinion.
17 Under the “catch-all” subsection which permits the jury to consider “[a]ny other evidence
of mitigation concerning the character and record of the defendant and the circumstances
of his offense[,]” 42 Pa.C.S. §9711(e)(8), the verdict sheet for both murder cases listed
19 circumstances that were potentially mitigating. The jury indicated “one or more of us”
found 17 of those 19 circumstances applicable, but unanimously determined the
aggravating circumstances outweighed the mitigating circumstances in both cases.
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