Citation Numbers： 36 A.3d 24, 614 Pa. 1
Judges： Baer, Castille, Eakin, McCaffery, Melvin, Saylor, Todd
Filed Date： 12/21/2011
Status： Precedential
Modified Date： 1/13/2023
OPINION
We review the direct appeal of Abraham Sanchez, Jr. (“appellant”) from the sentence of death imposed on March 30, 2009, following a trial by jury before the Honorable Joseph C. Madenspacher of the Lancaster County Court of Common Pleas. Appellant raises eight claims of trial court error regarding aspects of the guilt and penalty phases of his trial, including a challenge to the timing and the use of the jury in adjudicating his claim of death penalty ineligibility under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the U.S. Supreme Court held that execution of the mentally retarded violates the constitutional prohibition against cruel and unusual punishment. For the reasons that follow, we affirm the conviction and judgment of sentence. In addition, we take this opportunity to devise a procedure for implementing the Atkins decision in Pennsylvania. See Section VII, infra.
Case History
On May 2, 2007, appellant and his friends Lorenzo Schrijver, Robert Baker, and Emru Kebede met at the home of Susan Bass, Baker’s then-fiancee, to plan a robbery. The four men gathered almost daily in the basement of the Mount Joy, Pennsylvania, home, where Bass shared a room with Baker; appellant and Schrijver were closest to each other. Schrijver, a citizen of the Netherlands and recent arrival in the United States, was dating and later became engaged to appellant’s sister, Enid Orona. Appellant, Schrijver, Orona, and Orona’s son lived together. Appellant and Schrijver had met Baker two months earlier, at a Burger King that Orona managed and where Schrijver’s grandmother worked; Baker and Kebede had been friends for a few years.
Appellant and Schrijver discussed the robbery as a means to finance their burgeoning marijuana sale operation. When Bass returned home from work on May 2, 2007, she found appellant and Schrijver cleaning and “playing” with a gun that the two had left with Baker a few weeks earlier. Appellant had persuaded Schrijver in early April 2007 to purchase the handgun — a .22 caliber Smith & Wesson black revolver — from one of appellant’s acquaintances. After one of their marijuana buyers was arrested, appellant and Schrijver had asked Baker to store the gun and some drugs. Baker kept the gun in a shoe
The night of May 2, 2007, after deciding to go through with the robbery, appellant and Schrijver asked Baker and Kebede to join them. Eventually, the four men agreed to either burglarize a home or break into a car. All obtained gloves. At the time, appellant was dressed in long black jeans and a red short-sleeve shirt with a gray logo on the front. Schrijver was wearing a white T-shirt and blue jeans, and Baker was dressed in all-black. Appellant and his companions left Bass’s house in Schri-jver’s Geo Metro and drove towards Eliza-bethtown.
After driving for a while, Schrijver noticed an isolated house with a light on and an elderly man, Ray Diener (the “victim”), sitting at a table inside. Schrijver parked the car and the four men walked up to the victim’s house; Schrijver rang the door bell. The victim turned on the porch light and came to the door. Appellant, Baker, and Kebede remained hidden in the shadows on the right and left of the door. Schrijver asked to use the phone, telling the victim that his car had broken down. While the victim returned to the house to bring his cell phone, Schrijver handed the gun to appellant and prepared to attack the victim.
The victim returned, and Schrijver testified that he took the phone and pretended to make a call because he was uncertain how to proceed. At that point, appellant came out of the shadows, pointed the gun at Mr. Diener and told him to lie down. The victim grabbed the gun and screamed “No, no, no.” The victim and appellant wrestled over the gun. Appellant discharged the gun, and the bullet hit the victim in the groin area and fractured his hip. The victim fell down, and began crying and pleading for help. After the shot, Baker and Kebede fled towards Schrijver’s Geo Metro. Schrijver stayed and told appellant to shoot the victim again. Appellant put the gun in the victim’s mouth and threatened him to keep quiet but the victim continued crying. Appellant backed, up and shot the victim in the chest.
The victim was still alive when his wife, Barbara Diener, who was awakened by her husband’s screams, came outside. Mrs. Diener saw her husband on the ground and heard Schrijver say “There’s the wife.” She ran back inside, locked the doors, and called 911. Mrs. Diener told the 911 operator that two men were trying to open the door. Then, appellant, who was standing over the victim, shot the ■victim again, through the neck and shoulder. Schrijver fled towards his car, quickly followed by appellant, and the four men drove away. Mrs. Diener went back outside, covered her husband’s body, and sat with him until the police arrived.
Appellant and his companions drove towards Elizabethtown. Appellant wiped down the gun and threw the spent shell casings out of the car window, one by one. Schrijver asked appellant how he felt about shooting a man, and appellant answered that he felt like a “G” — a gangster. N.T., 3/3/2009, at 1641. According to Schrijver, appellant looked “excited” and showed no remorse. Schrijver gave appellant Mr. Diener’s cell phone and suggested calling 911. At the suggestion of the other men, however, appellant turned off the cell phone. Then, appellant and his companions went to pick up Orona’s son from the home of Schrijver’s grandmother. From there, the men drove to an abandoned house where appellant and Schrijver nor
Barbara Diener called 911 at approximately 10:45 p.m., and police officers were dispatched to her home in West Donegal Township, on the outskirts of Elizabeth-town. Officers Shuey and Cleland arrived at the scene and found Mrs. Diener on her porch, kneeling and holding the victim’s body. Officer Shuey took Mrs. Diener inside and surveyed the property for the possible presence of perpetrators. Meanwhile, Officer Cleland approached the victim who was lying face-down in the flower bed, with the lower half of his body on the porch steps. Cleland concluded that the victim was dead and noted that blood was coming from wounds caused by a small caliber weapon to the victim’s chest and thigh. Dr. Newman, a local assistant coroner and neighbor of the victim, arrived at the scene and confirmed Officer Cleland’s observations. Subsequently, other emergency personnel and police arrived to begin the investigation, and secure and process the scene.
The main investigator, Police Officer Wahl, interviewed Mrs. Diener, who stated that, when she came outside to the porch, she was confused and her focus was on her injured husband. Mrs. Diener said that she briefly heard a man addressing another person, from which she concluded that there were two perpetrators. She described them as male, 5'8" or 5'9" in height. According to Mrs. Diener, “they were white because they weren’t black. I don’t know if they were Mexican or [H]is-panic or Spanish.” Mrs. Diener also stated that one of the perpetrators may have been wearing a red T-shirt and khakis, but she was unable to describe his facial features. A sketch artist drew a composite from Mrs. Diener’s description of a second perpetrator.
Following the murder, appellant spoke to several persons about the night of May 2, 2007. On May 4, while he was riding in Schrijver’s Geo Metro, appellant opened the glove box and showed the other passengers the victim’s cell phone, saying it was “[his] new cell phone.” According to Bass, who was in the car, appellant boasted that he shot the victim “for fun” in the foot, stomach, and head. Around the same time, appellant also confessed to his friend Marcus Pendleton while the two played videogames. Appellant told Pendleton that he and his friends robbed and shot the victim, taking his cell phone. Finally, appellant described the night of the murder to his Burger King co-worker, Chad Forry, and admitted to shooting the victim three times. According to Forry, appellant said that he was trying “to shut the nigga up.” N.T., 3/5/09, at 2129. Forry described appellant as smiling when he told the story. Bass, Pendleton, and For-ry gave the police written statements after appellant and his companions were arrested.
The police arrested appellant, Schrijver, Baker, and Kebede on May 22, 2007. Appellant, Schrijver, and Baker gave the police statements regarding the events of May 2, 2007, and minimized their involvement in the victim’s murder. Both Schri-jver and Baker identified appellant as the victim’s killer. Subsequently, both men
On August 3, 2007, appellant was charged with one count each of criminal homicide, 18 Pa.C.S. § 2501(a); robbery, 18 Pa.C.S. § S701(a)(l)(i); and criminal conspiracy to commit robbery, 18 Pa.C.S. § 903(a). Appellant was tried before a jury and found guilty of murder in the first degree, robbery, and criminal conspiracy. On March 11, 2009, the jury sentenced appellant to death. The jury found one aggravator, 42 Pa.C.S. § 9711(d)(6) (appellant committed killing while in the perpetration of a felony, i.e., robbery), and no mitigators. The trial court also sentenced appellant to ten to twenty years for robbery, and a consecutive term of ten to twenty years for criminal conspiracy. Appellant filed a direct appeal to this Court on October 2, 2009. The trial court ordered appellant to file a Rule 1925(b) concise statement of matters complained of on appeal, and appellant complied. See Pa. RAP.1925(b). On December 1, 2009, the trial court issued its Rule 1925(a) opinion.
On appeal, appellant raises the following issues:
1.Whether the evidence presented by the Commonwealth was insufficient as a matter of law to establish [appellant’s guilt beyond a reasonable doubt on Count 1 — Murder of the First-Degree, thereby warranting a Judgment of Acquittal and/or vacat[ur of] [appellant’s conviction on said count.
2. Whether the evidence presented by the Commonwealth in [its] case in chief was insufficient as a matter of law to establish [appellant’s guilt beyond a reasonable doubt and/or was the verdict against the weight of the evidence, due to the fact that the only evidence presented to establish [appellant’s guilt beyond a reasonable doubt came from the Commonwealth’s key witnesses, Mo-defendants, Robert Baker and Lorenzo Schrijver who were admitted liars, guilty of numerous false reports to the investigating officers, extremely biased, contradictory, inconsistent, and highly motivated to lie or fabricate false statements to gain favor with the Commonwealth and were patently unreliable, to such an extent, [that] the Court is compelled to grant a judgment of acquittal and/or a new trial.
3. Whether the evidence presented by the Commonwealth was insufficient as a matter of law to establish [appellant’s guilt beyond a reasonable doubt on Count 2 — Robbery, thereby warranting a Judgment of Acquittal and/or vacat[ur of] [appellant’s conviction on said count and further warranting the vacat[ur] of the sentence of death due to the lack of any aggravating factors to justify the imposition of the death sentence by the jury.
4. Whether the [t]rial [e]ourt committed reversible error in denying [appellant’s “Batson[2] challenge” to the Commonwealth’s intentional striking of prospective juror # 34, a black female who was otherwise a “death penalty qualified juror.”
*36 5. Whether [appellant] was denied a fair trial due to the repeated emotional outbursts by the victim’s family during critical parts of the trial causing significant jury distraction and significant prejudice to [appellant] and whether the [t]rial [c]ourt committed error by refusing to remove the disruptive family members after an objection was made to their continued presence in the courtroom without a reprimand or warning from the court to cease any further outbursts.
6. Whether the [t]rial [e]ourt committed reversible error by allowing the jury to review graphic photographs depicting the victim lying dead under a sheet with body parts sticking out from under the sheet and/or displaying the victim’s blood stained clothing, all of which had no evidentiary value but an extreme prejudicial effect on the jury.
7. Whether the [t]rial [c]ourt committed reversible error by refusing to conduct an evidentiary hearing and issue a ruling on [appellant]’s eligibility to face the death penalty due to his mental retardation, as set forth in the standards and rulings of “Atkins v. Virginia ”[3] and Pennsylvania case law prior to the commencement of the jury selection and trial and further compounded the reversible error by refusing to make a judicial determination regarding [appel-lantj’s mental retardation and allowing the jury to make a post-verdict determination of whether [appellant] was mentally retarded and therefore not eligible for the [d]eath [p]enalty.
8. Whether the trial court failed to properly instruct the jury on the applicable standards regarding mental retardation and the subsequent eligibility of [appellant] to receive the [d]eath [p]enalty-
Appellant’s Brief at 6-8. Setting aside the argumentative framing of the questions, appellant raises eight distinct issues: (1) whether the evidence was sufficient to establish first-degree murder; (2) whether the overall verdict of guilt was against the weight of the evidence; (3) whether the evidence was sufficient to establish robbery; (4) whether the trial court erred in denying appellant’s Batson challenge to the Commonwealth’s peremptory striking of prospective juror # 34; (5) whether the trial court erred by refusing to remove from the courtroom, reprimand, or warn the victim’s family members for sobbing during the trial; (6) whether the trial court erred in allowing the jury to review photographs of the victim’s body and clothing; (7) whether the trial court erred by refusing to decide appellant’s Atkins claim prior to jury selection and trial; and (8) whether the trial court failed to instruct the jury properly on the applicable standards of mental retardation. Appellant requests judgment of acquittal on the counts of murder in the first degree and robbery. In the alternative, appellant seeks a new trial or vacatur of his death sentence. We address each issue individually. The record will be developed further infra, as necessary to resolve the issues on appeal.
I. Sufficiency of the Evidence: Murder in the First-Degree
Appellant’s first claim is that the evidence introduced by the Commonwealth at trial was insufficient to establish his guilt
On appeal, we agree with the Commonwealth that appellant fails to meaningfully develop his sufficiency claims regarding the first-degree murder and conspiracy convictions.
In performing sufficiency review of a first-degree murder conviction, this Court ascertains whether evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish beyond a reasonable doubt all elements of the offense. Id. at 753. Evidentiary sufficiency is a question of law and, therefore, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Meals, 590 Pa. 110, 912 A.2d 213, 218 (2006). First-degree murder is an intentional killing, i.e., a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(a), (d). The Commonwealth proves a person guilty of first-degree murder by establishing that: (1) a human being was killed; (2) the accused caused the death; and (3) the accused acted with malice and a specific intent to kill. See 18 Pa.C.S. §§ 2501(a), 2502(a), (d); Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84, 92 (2009); Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 278-79 (2008). Furthermore, the jury, as a factfinder, may infer that the accused intended to kill a victim based on the accused’s use of a deadly weapon on a vital part of the victim’s body. May, 887 A.2d at 753.
With respect to the identity of the murderer, the Commonwealth offered into evidence testimony from co-defendants and eyewitnesses Schrijver and Baker, from Susan Bass and her brother Jeffrey, from appellant’s friend Marcus Pendleton, and from appellant’s Burger King co-worker Chad Forry. Schrijver and Baker recounted that, on May 2, 2007, together with appellant and Kebede, they drove by the victim’s house, planning a robbery. Schrijver rang the doorbell and asked to use the telephone, while the others hid in the shadows on the victim’s front porch. When the victim returned with his cell phone, appellant came out of the shadows with his gun pointed at the victim. In the ensuing struggle, appellant shot the victim in the groin. The struggle having ended, and with the victim pleading for his life, appellant coldly backed up and shot the victim again in the chest and neck/shoulder area, thereby causing the victim’s death.
Susan Bass’s brother testified that he saw appellant and his co-defendants leave the house he shared with his sister and Baker on the night of the robbery; all four men were wearing gloves. Susan Bass stated that she saw appellant and Schri-jver handle the murder weapon on the evening of the murder. She also asserted that on May 4, 2007, she heard appellant boast about shooting the victim in the foot, stomach, and head. Finally, Pendleton and Forry testified that appellant admitted to them that he shot the victim. The trial testimony of Bass, Pendleton, and Forry was consistent with statements they had given to police in May 2007, shortly after appellant and his companions were arrested. This evidence was in addition to that of appellant’s co-defendants and was on its own sufficient to permit the jury to conclude that appellant shot the victim and caused his death.
The Commonwealth clearly met its burden to prove, beyond a reasonable doubt, that appellant intentionally caused the victim’s death. 18 Pa.C.S. §§ 2501(a), 2502(a), (d). Accordingly, the record supports appellant’s conviction for murder in the first degree.
II. Weight of the Evidence
Appellant’s second claim is that the jury’s verdict is against the weight of the evidence. Appellant argues that, although this Court may not substitute its assessment of the witnesses’ credibility for that of the jury, the Court should recognize that the verdict in this case was based upon “mere surmise or conjecture.” According to appellant, the verdict was premised on the unreliable testimony of “the more culpable defendant” — Schrijver— “who among other damning pieces of evidence, admitted bringing the gun to the exact scene of the shooting, hiding the gun after the shooting and admittedly lied to the police on so many occasions, about [too] many things” to include in the brief. Appellant’s Brief at 28-29 (citing Farqu-harson, 354 A.2d at 550). Appellant asserts that the prosecution’s sole evidence of his participation in the murder was testimony from co-defendants, who had motive to lie and implicate appellant. According to appellant, both Schrijver and
Appellant states that Mrs. Diener identified only two, not four, males at the scene, both white and who could be brothers, one with facial hah’ and the other with a bowl cut. According to appellant, Mrs. Diener’s description matched Sehrijver and Baker, and not appellant. Both co-defendants were corrupt sources of evidence with an incentive to implicate appellant, who had no ties to the victim and no motive to shoot him. Appellant asserts that the verdict is contrary to the weight of the evidence and that, as a result, he is entitled to a judgment of acquittal or a new trial.
The Commonwealth responds that the jury credited the testimony of the co-defendants, both of whom identified appellant as the shooter. Further, other evidence supported the verdict. Chad Forry, appellant’s co-worker, testified that appellant bragged to him about shooting the victim. The Commonwealth contends that this Court should defer to the jury, which was in the best position to assess the credibility of witnesses. According to the Commonwealth, an assertion that a different conclusion could have been drawn from the same facts is not sufficient for relief on a challenge to the weight of the evidence. The Commonwealth emphasizes that the verdict was not “irreconcilably contradictory to incontrovertible facts, human experience of the laws of nature or based on mere conjecture.” Commonwealth’s Brief at 3B (citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 752 (2000)).
The trial court agreed with the Commonwealth. The court reasoned that the jury was instructed that Sehrijver and Baker were accomplices and on how the jury should evaluate the testimony of accomplices. According to the trial court, the jury could choose whether to accept or reject Schrijver’s and Baker’s testimony, and the jury “obviously chose to believe them in this case.” The court thus rejected appellant’s weight of the evidence argument.
The finder of fact — here, the jury — exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence. DeJesus, 860 A.2d at 107. Issues of witness credibility include questions of inconsistent testimony and improper motive. Id. A challenge to the weight of the evidence is directed to the discretion of the trial judge, who heard the same evidence and who possesses only narrow authority to upset a jury verdict. Blakeney, 946 A.2d at 652-53. The trial judge may not grant relief based merely on “some conflict in testimony or because the judge would reach a different conclusion on the same facts.” Id. at 653. Relief on a weight of the evidence claim is reserved for “extraordinary circumstances, when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Id. (quotation marks omitted). On appeal, this Court cannot substitute its judgment for that of the jury on issues of credibility, or that of the trial judge respecting weight. DeJesus, 860 A.2d at 107. Our review is limited to determining whether the trial court abused its discretion; the Court’s role precludes any de novo consideration of the underlying weight question. Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170, 1178 (2009); Blakeney, 946 A.2d at 653.
Here, appellant cites this Court’s decision in Farquharson for the proposition that the verdict was “pure conjecture” because it was premised on trial testimony from co-defendants with motives to lie, who were admitted liars, and who provided several versions of the events to the police
The Farquharson Court indeed stated that “where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding.” 354 A.2d at 550. But, the evidence in this case required no jury conjecture. Schri-jver and Baker gave direct evidence. Moreover, the evidence was not limited to testimony from the co-defendants. The Commonwealth introduced testimony from other witnesses, i.e., Marcus Pendleton and Chad Forry, who testified that appellant confessed to shooting and killing the victim. This evidence, combined with the physical evidence, proved guilt independently of Schrijver and Baker. Also, the trial statements of Susan Bass, her brother, Mrs. Diener, and the police and forensic investigators corroborated essential parts of Schrijver and Baker’s testimony, including that the four men left Bass’s house together wearing gloves; that the four men were secretive about the purpose of their outing; that the victim pled for his life; and that the victim was shot in the chest and neck after falling down on the porch. Mrs. Diener confirmed that one of the men was wearing a red shirt, which matched that worn by appellant on the night of the murder. Mrs. Diener also emphasized that she was focused on her fallen husband when she walked onto the porch on May 2, 2007, and that it was her belief there were but two men there only because of their conversation. This testimony corroborates Schrijver’s statements that Baker and Kebede were at first hiding on either side of the front door and then ran from the porch. In her statements to police, Mrs. Diener described the two perpetrators she heard as male, 5'8"-5'9", and “white because they weren’t black.” Mrs. Diener also said she “[didn’t] know if they were Mexican or [H]ispanic or Spanish.” The description fit appellant, as well as his co-defendants.
In his argument, appellant does not account for the entire record and instead selectively emphasizes the testimony of his accomplices, which he says, was unreliable. That is a jury argument. Viewed in its entirety, the evidence of record is neither so unreliable nor contradictory to undermine the verdict. Differences in eyewitness accounts that were contradictory are not of such significance as to render the testimony of Schrijver and Baker mere conjecture or render it unreliable. See DeJesus, 860 A.2d at 107. Moreover, questions regarding Schrijver and Baker’s motives or prior inconsistent statements were classic issues of credibility to be decided by the jury. Appellant had ample opportunity to impeach his accomplices’ credibility during cross-examination and, indeed, was able to develop the accomplices’ motives and highlight inconsistencies between the multiple police statements and the trial testimonies of Schrijver and Baker. Notably, although the details in the various statements differed, Schrijver and Baker consistently identified appellant as the shooter. Appellant’s confessions corroborated the identification. The jury chose to believe the accomplices’ corroborated account that appellant was the shooter. “The trial court was in the best position to assess whether this was one of those rare circumstances where a verdict based on sufficient evidence was nevertheless contrary to the weight of the evidence.” Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170, 1178 (2009). We discern no abuse of discretion in the trial court’s refusal to dis
III. Sufficiency of the Evidence: Robbery
Appellant also argues that the evidence was insufficient to prove his guilt on the robbery charge. According to appellant, in the criminal Information, the Commonwealth framed the robbery charge very narrowly to allege that the victim was killed during “the theft of [his] cell phone and nothing else.” Appellant’s Brief at 19. Appellant asserts that there was no attempt, conspiracy, or actual theft of the victim’s cell phone because neither appellant nor his accomplices had made a plan or formed any specific intent to steal the cell phone. Instead, he says, Schrijver simply requested to use the cell phone, which the victim voluntarily handed to him, and then Schrijver left with the cell phone in the confusion that followed the shooting. According to appellant, none of the actions leading up to the shooting were in furtherance of a theft of the cell phone. As a result, appellant claims, the victim’s injuries were not inflicted during a theft of the cell phone and the Commonwealth was unable to meet its burden of proof on the count of robbery as alleged in the information. Moreover, appellant claims that because the only aggravating factor found by the jury was that the murder occurred during the commission of the felony of robbery, appellant’s death sentence should be vacated.
The Commonwealth responds that appellant’s reading of the criminal Information is overly technical and narrow. Trial testimony established that, on the night of the murder, appellant and his cohorts drove toward Elizabethtown looking for an isolated location seeking an opportunity to rob someone. By unfortunate happenstance, they found the victim, an older man who appeared to be alone, and approached his home. Appellant shot the victim but was only able to obtain a cell phone. According to the Commonwealth, appellant and his accomplices unlawfully took the moveable property of the victim and whether the cell phone was the object sought or not is inconsequential. Commonwealth’s Brief at 24 (quoting 18 Pa. C.S. § 3921(a)). The Commonwealth concludes that the evidence of record was sufficient for the jury to find appellant guilty of robbery. The trial court agreed with the Commonwealth that testimony at trial established all of the elements necessary to prove appellant’s guilt on the robbery charge and the aggravator.
Here, appellant purports to challenge the sufficiency of the evidence regarding the robbery offense. A sufficiency of the evidence claim requires an assessment of whether the evidence introduced at trial established the offense charged, ie., robbery. May, 887 A.2d at 753. Thus, in the first instance, the jury decides whether the Commonwealth met its burden of proof based on the trial court’s instructions regarding the relevant law; the jury does not review or base its decision on the Information. The jury’s decision is reviewed by the trial court on post-verdict motions or in its Rule 1925(a) opinion. If the trial court denies relief, on appeal, this Court reviews the trial court’s decision for error. See id. Here, appellant does not develop any arguments in his appeal that address an absence from the trial record of evidence necessary to establish a robbery charge. As the Commonwealth explains, the record amply supports that appellant fatally shot the victim during an attempt to deprive the victim of his property. 18 Pa.C.S. § 3701(a)(l)-(2). That circumstances made it such that appellant and his accomplices failed to obtain and remove money (or other valuables) is
Appellant’s “sufficiency” arguments are focused on the Information filed by the Commonwealth pursuant to Rule of Criminal Procedure 560, after appellant was held for court. See Pa.R.Crim.P. 560. Generally, the Information “define[s]” the issues at trial. Pa.R.Crim.P. 560(D). The Information is the “formal written accusation of an offense made by the attorney for the Commonwealth, upon which a defendant may be tried, which replaces the indictment in all counties since the use of the indicting grand jury has been abolished.” Commonwealth v. Weigle, 606 Pa. 234, 997 A.2d 306, 312 (2010) (quoting Pa.R.Crim.P. 103). Appellant claims that the discrepancy between the Information and the evidence introduced at trial, Le., the allegata and the probata, entitles him to sufficiency relief.
To raise his notice/discrepancy issue, appellant was required to object contemporaneously to the presentation of the evidence, during the prosecution’s opening and closing arguments, or during the trial court’s jury instructions, in order to give the trial court a contemporaneous opportunity to address the alleged error and to preserve the present issue for appeal. See, e.g., Sims, 919 A.2d at 933 (defense counsel objected to prosecutor’s closing argument that defendant “should be convicted of ‘at least attempted escape’” on ground that attempted escape was not charged in information). The purpose of contemporaneous objection requirements respecting trial-related issues is to allow the court to take corrective measures and, thereby, to conserve limited judicial resources. See Criswell v. King, 575 Pa. 34, 834 A.2d 505, 509-10 (2003) (listing policy considerations behind contemporaneous objection requirement). Appellant failed to raise any objection here and, instead, raised the issue for the first time via his Rule 1925(b) statement of matters complained of on appeal, in the guise of a sufficiency argument. The issue fails as a
IV. Batson Challenge
Next, appellant requests a new trial on the ground that he was denied a fair trial because the Commonwealth used a peremptory challenge to strike the only African-American death-qualified venire person from the jury. Appellant’s Brief at 25 (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). According to appellant, whose surname is Hispanic but whose racial background is not identified in the record, the Commonwealth “purposefully excluded the only minority woman ... on the unreasonable and barely believable premise that she may have noticed a newspaper article on the eve of trial and nothing more,” even though the prosecutor acknowledged that the venire person did not read the article. Id. at 27 (emphasis omitted). Appellant asserts that the Commonwealth’s justification “rings of gamesmanship and prejudice” because the Commonwealth accepted Caucasian venire persons who also noticed the same and other articles in the newspapers. Appellant also alleges that the Commonwealth used two other peremptory challenges to exclude African-American jurors who were not death-qualified and with regard to whom appellant did not raise a Batson challenge. Appellant contends that “[t]he Commonwealth took every opportunity to seat a predominantly white jury thereby denying [appellant] a fair trial.” Id. at 28.
The Commonwealth counters that appellant fails both to carry the prima facie burden to establish a Batson violation, and to prove that the prosecutor’s race-neutral explanation for striking venire person # 34 was a pretext for excluding her on the basis of race. The Commonwealth emphasizes that appellant has failed — both during voir dire and on appeal — to identify the race of all 132 venire persons, the race of those removed by the prosecution, or the race of those accepted by the Commonwealth but stricken by the defense. During voir dire, appellant simply objected by saying “Batson challenge, Your Honor,” and the trial court immediately requested an explanation from the prosecutor. See N.T., 2/24/09, at 365. On appeal, the Commonwealth notes, appellant bases his allegations solely on the Commonwealth’s exercise of peremptory strikes to excuse two other African-American venire persons (# 32 and # 97) who stated they would be unable to impose the death penalty, and with respect to whom the defense did not raise Batson challenges. Commonwealth’s Brief at 29 (citing N.T., 2/24/09, at 336; N.T., 2/25/09, at 694). The Commonwealth also highlights that it accepted the only juror of Hispanic descent (# 79) not excused for cause. Id. (citing N.T., 2/24/09, at 555). The Hispanic venire person (#45) excused for cause was a local detective acquainted with the trial prosecutors. Id. & n. 4 (citing N.T., 2/24/09, at 416). The Commonwealth concludes that appellant failed to adduce sufficient evidence of Batson factors to make a prima facie case that venire person # 34 was excluded on the basis of her race.
Moreover, the Commonwealth recounts that the prosecutor provided three race-neutral reasons for striking venire person # 34: (1) the juror had noticed an article in the local newspaper which quoted defense counsel’s comments regarding the strength of the Commonwealth’s evidence against appellant, and which the Commonwealth had already brought to the trial
The trial court rejected appellant’s claim. According to the court, the jury was composed of twelve white jurors, one Hispanic juror, and one juror who did not indicate his/her race. Although the Commonwealth used peremptory challenges to strike three African-American venire persons, appellant raised a Batson challenge only to the striking of venire person # 34. The trial court found that the Commonwealth provided a race-neutral explanation for striking venire person # 34, and concluded that appellant failed to establish that the totality of the circumstances indicated that the prosecutor excluded potential jurors because of their race.
The Batson Court recognized that peremptory challenges “permit[ ] those to discriminate who are of a mind to discriminate” based on race in jury selection. Batson, 476 U.S. at 96, 106 S.Ct. 1712; Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1042 (2002). “[T]he harm Batson seeks to avoid is not only a trial where members of the defendant’s own race have been excluded from the jury on account of their race, but also the harm to the prospective jurors and the community at large that results when citizens are denied participation in jury service based upon their race.” Harris, 817 A.2d at 1042-43 (citing Powers v. Ohio, 499 U.S. 400, 415-16, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (racial identity between excluded venire person and criminal defendant is relevant to establish Batson violation but not a requirement)). The successful Bat-son objector is the third party beneficiary of the venire person’s equal protection right not to be excluded from a jury on account of his/her race.
To prove a defense-side Bat-son claim, the defendant has to initially establish “a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race.” Id. at 1042. If the prima facie showing is made, “the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue.” Id. The trial court ultimately makes a determination of whether the defense has carried its burden of proving purposeful discrimination. Id.
At trial, the Commonwealth did not actively dispute the existence of a prima facie case under Batson. Further, the trial court did not address this initial aspect of the multi-prong Batson inquiry either in court or in its Rule 1925(a) opinion and instead focused, like the parties, on whether the prosecutor’s explanation of the peremptory strike was race-neutral. On appeal, the Commonwealth challenges appellant’s prima facie showing both at trial and on appeal. But, we will not de
In Edwards, we explained that, once the burden shifts from the Bat-son defendant, the prosecution’s obligation is to forward a facially valid race-neutral explanation and, in this regard, there is no “demand [for] an explanation that is persuasive, or even plausible. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at 1154 (quoting Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). The trial court then assesses the persuasiveness of the race-neutral explanation, and determines whether the challenger ultimately carried his burden of proving purposeful discrimination. Id. Where, as here, there is little evidence bearing on the issue of the prosecutor’s discriminatory intent, and the best evidence is the demean- or of the attorney who exercises the challenge, the trial court’s determination will turn on the court’s assessment of the prosecutor’s credibility. Id. at 1155; Harris, 817 A.2d at 1043 (citing Hernandez, 500 U.S. at 365, 111 S.Ct. 1859). Accordingly, we may overturn the trial court’s decision only if it is clearly erroneous. Harris, 817 A.2d at 1043 (citing Hernandez, 500 U.S. at 363-70, 111 S.Ct. 1859); Edwards, 903 A.2d at 1155.
Here, the record shows that the prosecutor asked all potential jurors, including venire person #34, whether, based on television shows, she would expect the Commonwealth to present fiber, DNA, and other similar evidence in order to and as a requirement to convict somebody of a crime. Venire person # 34 answered in the affirmative. Moreover, venire person # 34 expressed her hesitation to accept the court’s instruction .that “words are evidence ... because people lie” and unequivocally stated that she would be unable to convict a criminal defendant on the basis of the testimony of a single witness, even if she found the witness credible. N.T., 2/24/09, at 356-57. Venire person # 34 also mentioned that she saw an article on the front page of the newspaper, in which defense counsel was interviewed regarding appellant’s case and regarding which the prosecution had expressed concern earlier during voir dire. Id. at 349; see N.T., 2/23/09, at 136-40. After appellant asserted the Batson challenge, the prosecutor provided the following explanation:
Well, Your Honor, it begins with, she’s the first individual who has indicated that she noticed the article in the paper. And I do understand she said she did not read it; however, that is a risk that we are not willing to take because of the concerns which we relayed to the [c]ourt yesterday about the contents of the article. And the article itself was actually marked as an exhibit yesterday.
Additionally, Your Honor, the prospective juror actually indicated in response to the question — she’s the first one that has responded this way — that she needs more than just words from the witness stand. With regard to the*46 CSI stuff, she did say, yeah, I want something in addition to words from the witness stand.
In addition to that, in response to questions by both sides, she essentially said she would have an issue with following the Court’s instruction with regard to what the evidence is, and she’s continuously said that she requires more than just that witness, who, even if believed, she would want more.
N.T., 2/24/09, at 365-66.
Early in the voir dire process, the Commonwealth brought to the attention of the trial court an article in which defense counsel specifically addressed the credibility of the Commonwealth’s incarcerated witnesses. N.T., 2/23/09, at 136-40. The Commonwealth explains further in its appellate brief, that “eye witness testimony was crucial to establishing [appellant] as the shooter” and that the prosecutor was “justifiably concerned by [venire person] # 34’s reluctance to convict even if presented with credible eye witness testimony.” Commonwealth’s Brief at 32. The trial court, which was in the best position to assess the credibility of the prosecutor, determined that the race-neutral explanation offered was persuasive. Appellant challenges only one of the Commonwealth’s race-neutral explanations and adduces no evidence in support of his bald assertion of discrimination. Under these circumstances, he has not shown that the trial court’s exercise of discretion was clearly erroneous. See Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 631 (1995) (use of peremptory strike on single African-American venire person, without more, is insufficient to establish Batson violation). Appellant is not entitled to Batson relief.
V. Emotional Outbursts from the Victim’s Family
Appellant also argues that he was denied a fair trial because of “repeated emotional outbursts by the victim’s family during critical parts of the trial causing significant juror distraction and significant prejudice.” Appellant’s Brief at 7 (Statement of Questions). Notably, appellant neither requested a remedial instruction at the time of the incident nor did he move for a mistrial. Appellant simply requested that the victim’s daughter — the sobbing spectator — be removed from the courtroom or privately warned against crying by the trial court. The trial court stated that the victim’s family had a right to be in the courtroom, that the daughter was trying to control herself and that her actions were not disturbing the trial. See N.T., 3/2/09, at 1225-26, 1253-55; N.T., 3/3/09, at 1537-42.
On appeal, appellant asserts that the trial court erred by refusing to remove, reprimand, or warn family members to cease any outbursts, following appellant’s objection. In the argument section of his Brief, appellant develops the claim only to declare that, although prejudice resulting from spectator shows of emotion could be cured by a remedial jury instruction, a curative instruction would have been insufficient here. According to appellant, repeated requests for removal were denied and were “pointless since the damage had already been done.” Appellant’s Brief at 17.
The trial court explained in its Rule 1925(a) opinion that what defense counsel described as “loud sobbing by the spectators” were not outbursts but “slight moaning at best,” which were “relatively short in duration.” Tr. Ct. Op., 12/1/09, at 3 (unnumbered) (citing N.T., 3/2/09, at 1225-26, 1253-54). According to the trial court, emotional reactions from the victim’s family are not unusual in murder trials. The court stated that it did not remove or reprimand the victim’s daughter because the incidents were short and she attempted to control herself. Further, the jury did not receive a curative or cautionary instruction because appellant did not seek one.
To obtain relief on a claim that the trial court abused its discretion in responding to spectator conduct at trial, appellant must show that the spectator’s actions caused actual prejudice or were inherently prejudicial. Commonwealth v. Philistin, 565 Pa. 455, 774 A.2d 741, 743 (2001); see Carey v. Musladin, 549 U.S. 70, 73, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). The U.S. Supreme Court has held it is still an open question as to whether spectator versus state conduct can be inherently prejudicial. Carey, 549 U.S. at 76, 127 S.Ct. 649 (citing Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). The trial court has discretion to determine whether a party was prejudiced by a spectator’s conduct. Philistin, 774 A.2d at 743; Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1072 (1995). The trial court may implement any appropriate remedy requested, including offering a remedial instruction, removing the responsible spectator, or declaring a mistrial. See, e.g., Bracey, 662 A.2d at 1072; Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 104-05 (1995); Commonwealth v. Styles, 494 Pa. 524, 431 A.2d 978, 980-81 (1981). “[U]nless the unavoidable effect of the incident is to deny the defendant a fair trial, there is no error.” Philistin, 774 A.2d at 743; Johnson, 668 A.2d at 104.
Here, appellant takes an absolutist approach, framing his argument on the assumption that spectator conduct is inherently and irremediably prejudicial. But, the law does not support an assumption of inherent prejudice regarding private conduct, and appellant fails to develop sufficient argument to persuade us that such a presumption is warranted. See Carey, supra. Further, appellant fails to develop factual or legal support in favor of finding actual prejudice in this instance. Thus, appellant’s description of the nature and prejudicial effect of private conduct during trial consists merely of bald assertions that unnamed spectators’ outbursts were disruptive and caused “significant juror distraction and significant prejudice.” The trial judge, who was present, determined otherwise. On the present record, we cannot conclude that the trial court abused its
VI. Photographs of the Victim’s Body
Next, appellant asserts that the trial court erred or abused its discretion in admitting into evidence and showing to the jury the victim’s clothing from the night of the murder, as well as photographs depicting the victim’s body. Specifically, appellant questions the admission of Commonwealth Exhibits 20,18, and 14.
The Commonwealth responds that appellant waived any issue regarding the admissibility of the photographs by failing to object when they were introduced into evidence. According to the Commonwealth, the parties agreed in chambers that covering the victim’s body would negate any inflammatory effect that the photographs might have on the jury; subsequently, appellant did not object at trial when the redacted photographs were shown to the jury. Moreover, the photographs were relevant to explain the presence and location of blood stains and of a footprint near the victim’s body, as well as to corroborate the testimony of Schrijver and Baker. The Commonwealth states that it sought to anticipate any possible defenses, because appellant’s trial strategy was not yet clear when the items were introduced. Finally, the Commonwealth asserts that the photographs “lost any inflammatory effect” when the victim’s body was covered.
With respect to the clothing, the Commonwealth states that the victim’s shirt and boxer shorts were introduced into evidence to help the Commonwealth’s ballistics expert explain the range from which appellant shot the victim. The clothing, however, was not removed from the evidence bag and was not shown to the jury. Rather, the expert simply identified the items and then testified to his conclusions on the basis of the evidence.
The trial court agreed with the Commonwealth that appellant raised no objection to the admission of the photographs (Commonwealth’s Exhibits 20 and 22). The court also rejected appellant’s claim regarding these Exhibits on the ground that no images of the victim’s body were ever shown to the jury. Finally, the trial court summarily dismissed appellant’s claim regarding the victim’s clothing (Commonwealth’s Exhibits 13 and 14) on the ground that the evidence was relevant and “necessary for the testimony of the Commonwealth’s ballistics expert.” Tr. Ct. Op., 12/1/09, at 4 (unnumbered).
The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 776 (2004) (citing Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 405 (2003)). Evidence is
On the first day of trial, March 2, 2009, the parties and the court addressed whether several photographs of the victim’s body would be admitted into evidence. See N.T., 3/2/2009, at 1372-79. One photograph is described in the transcript as a color photograph of the victim with his eyes and mouth open, and blood on his chest and boxer shorts. The victim’s body is pictured on the porch, moved from its original location, and, surrounding him, are various blood stains and a bloody footprint attributed to the investigators.' Id. at 1372-74. The Commonwealth agreed to cover the body and stated it would offer the altered photograph into evidence to explain the bloody footprint and the sequence of events. Id. at 1375-78. On March 3, 2009, the Commonwealth marked the photograph — with the victim’s body covered— as Exhibit 20.
At the conference on March 2, the parties also addressed another photograph, which was included in a larger collection and PowerPoint presentation of photographs from the scene of the murder. Appellant’s trial counsel described the photograph as depicting the victim’s body entirely covered by a sheet except for a foot protruding from under the sheet. See N.T., 3/2/2009, at 1378. In chambers, counsel tentatively stated that “the foot poking out from under the sheet makes it kind of gruesome looking” and continued that he was not “pushing the issue.” id. The Commonwealth offered the presentation, including the subject photograph, into evidence as Exhibit 22. Appellant objected neither to the admission of the presentation nor to the individual photograph of the victim. See N.T., 3/3/09, at 1522-59.
An independent review of the record reveals that this evidence was not
The trial court also admitted into evidence Commonwealth Exhibits 13 and 14, the victim’s shirt and boxer shorts; both items were stained with the victim’s blood. At sidebar, appellant’s counsel objected to the publication of the victim’s shirt (Exhibit 13) to the jury on grounds that the prejudicial value of the exhibit outweighed its probative value. N.T., 3/3/09, at 1431-32. The trial court sustained the objection and the Commonwealth asked its testifying expert to identify the victim’s shirt without publishing it to the jury. Id. at 1435-36. Subsequently, although the defense did not renew its objection, the Commonwealth moved the boxer shorts (Exhibit 14) into evidence and elicited expert testimony without publishing the boxer shorts to the jury. See id. at 1437-38. Both the shirt and the shorts were shown only to the expert in their original evidence bags. Id. at 1436, 1438. The Commonwealth introduced its Exhibits 13 and 14 into evidence to rebut a defense argument that additional holes in the garments cut out by the serology expert were actually separate bullet holes. Therefore, the exhibits were relevant and not clearly inflammatory. Appellant fails to develop any arguments regarding the prejudicial effect of showing the expert the evidence bag containing the victim’s bloody clothing. On the present record, we cannot conclude that the trial court abused its discretion by admitting Exhibits 13 and 14 into evidence for the limited purpose of permitting the Commonwealth’s expert to examine those Exhibits as they remained in their respective evidence bags. Appellant’s claims regarding Commonwealth Exhibits 20, 22,13, and 14 fail.
VII. Factfinder and Timing of Atkins/Mental Retardation Adjudication
Appellant’s seventh claim is that the trial court erred in permitting the jury to decide at the penalty phase whether appellant was mentally retarded and, therefore, exempt from the death penalty pursuant to the U.S. Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). According to appellant, the issue of mental retarda
Appellant notes that he requested a bench Atkins determination on the morning of the first day of trial, before jury selection began. He asserts that any cost associated with a delay in the commencement of trial due to the timing of his request was justified given the alternatives, i.e., the social cost of an unfair trial and the financial burden of a new trial. According to appellant, because the court refused to resolve the Atkins issue non-jury, before trial, he was forced to select and try his case before a death-qualified jury and to change his trial strategy, which placed him at an unfair disadvantage viola-tive of his constitutional due process rights. Appellant claims that the trial court’s error “severely prejudiced” him.
The Commonwealth responds that case-law permits a trial court to decide a baseless Atkins claim, like appellant’s, before trial or to defer the decision to a jury at sentencing. The decision in Vandivner simply “prevented a baseless claim from impeding the imposition of the death penalty,” without creating a mandatory procedure. Commonwealth’s Brief at 9. Meanwhile, the Commonwealth notes, the Bracey decision addressed Atkins issues in post-conviction practice rather than trial issues. The Commonwealth also argues that appellant’s Atkins claim was baseless on the merits because appellant was unable to establish that his intelligence quotient (“IQ”) was in the range of mental retardation, ie., below 70. Id. (citing Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005)). Furthermore, the Commonwealth emphasizes, appellant presented his claim to the trial court on the morning of voir dire, and requested a hearing and decision which would have denied the Commonwealth an opportunity for expert review and would have stopped the trial “in its tracks.” Id. at 11. In addition, at the time that appellant moved for a decision, he was unable to provide expert reports, which only became available during jury selection, on February 24-25, 2009.
According to the Commonwealth, the law did not preclude the trial court from submitting the Atkins issue to the jury. Pursuant to Section 9711 of the Judicial Code, 42 Pa.C.S. § 9711, juries already have the power to decide life or death following deliberation on aggravating and mitigating circumstances, which can encompass evidence of mental retardation and mental disturbance or impairment. Therefore, the issue of mental retardation may properly be presented to the jury whether under Atkins or as a mitigator. According to the Commonwealth, appellant suffered no prejudice from submission to a jury specifically instructed by the trial court to determine first whether appellant proved that he suffered from mental retardation, and if he did not, to determine whether to return a sentence of death.
The trial court rejected appellant’s procedural claim, and his related request for an opportunity to select a non-death qualified jury, on the ground that appellant raised the'Atkins claim too late for a pre
We now review the trial court’s decision to submit appellant’s Atkins claim to a jury during the penalty phase of trial, in the circumstances here, and we also address appellant’s primary assertion that he was entitled to a pre-trial bench adjudication of his mental retardation claim.
In Atkins, the U.S. Supreme Court, overruling prior authority, decided that the U.S. Constitution, the Eighth Amendment through Fourteenth Amendment Due Process in particular, “places a substantive restriction on [a] State’s power to take the life of a mentally retarded offender.” 536 U.S. at 321, 122 S.Ct. 2242. The High Court did not dictate either a national standard for determining which offenders are in fact mentally retarded, nor did it speak of a constitutionally-mandated procedure for determining mental retardation in capital cases. See id. at 317, 122 S.Ct. 2242. “[W]e leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences,” the Court stated. Id.; accord Medina v. California, 505 U.S. 437, 443-44, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (“it has never been thought that decisions under the Due Process Clause establish [the U.S. Supreme] Court as a rulemaking organ for the promulgation of state rules of criminal procedure”). Unlike legislatures in several sister states, in the nine years since the decision in Atkins, our General Assembly has not enacted legislation addressing the issues left open, to the states by Atkins.
Devising an Atkins procedure entails deciding who — judge or jury — must or may adjudicate a capital defendant’s claim of mental retardation, the timing of such a determination, which party bears the bur
Contrary to appellant’s argument here, these decisions finding no error with
Recognizing that no statute, caselaw, or Rule currently outlines a proper Atkins procedure, we also acknowledge that any pronouncement on Atkins procedure cannot trump constitutional rights, if any exist, regarding a particular factfinder or as regards the timing of the mental retardation adjudication. See Bracey, 986 A.2d at 141; accord Leland v. Oregon, 343 U.S. 790, 799, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (Court refused to interfere with state procedure which did not violate due process). Therefore, we next address the constitutional underpinnings and implications of appellant’s arguments in favor of devising for Pennsylvania an Atkins procedure conferring a defense right to a pretrial bench determination. Bracey, 986 A.2d at 141; accord State v. Grell, 212 Ariz. 516, 135 P.3d 696, 702 (2006) (“Although left to the states, the [Atkins ] procedures developed must comport with the [U.S.] Constitution.”).
a. Choice of Factfinder
Initially, we find no support for the proposition that either the U.S. or Pennsylvania Constitution mandates a bench decision of an Atkins issue at trial. Generally, both Constitutions speak of a criminal defendant’s right to a jury; neither speaks of any right to a bench decision or to a choice of factfinder, other than a jury. See U.S. Const. Art. Ill, § 2, CL 3 (“The Trial of all Crimes ... shall be by Jury”), amend. VI (trial in all criminal prosecutions “by an impartial jury”); Pa. Const. Art. I, § 9 (“[i]n all criminal prosecutions the accused hath a right to ... trial by an impartial jury”). If a right to a bench trial had been intended by the drafters of the U.S. and Pennsylvania Constitutions, it would certainly have been plainly addressed, in a similar manner as the right to a jury is addressed in both Constitutions. See, e.g., Singer, 380 U.S. at 28-29, 85 S.Ct. 783 (citing first constitution of Massachusetts, which provided that, in criminal cases, “it shall be the liberty of the plaintiff and defendant, by mutual consent, to choose whether they will be tried by the Bench or by a Jury”). The U.S. Supreme Court confirmed this interpretation in Singer, supra. The High Court held that “there is no federally recognized right to a criminal trial before a judge sitting alone” nor “the right to choose between court and jury trial.” 380 U.S. at 26, 34, 85 S.Ct. 783 (citing U.S. Const. Art. Ill, § 2, Cl. 3, amend. VI). The Singer Court thus rejected the criminal defendant’s “bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process,” in light of the federal Constitution’s emphasis on the jury trial. Id. at 36, 85 S.Ct. 783.
Similarly, the Pennsylvania Constitution emphasizes the right to a jury trial. See Pa. Const. Art. I, § 9, supra.
Of course, the constitutional provisions speak to trial by jury, and an Atkins issue is a part of trial. But, this fact is of no constitutional significance. There is no support for appellant’s argument that a pre-trial bench decision on mental capacity issues is constitutionally preferred, just as there is no current authority supporting the countervailing view that a jury decision is constitutionally-mandated. See Bracey, supra; accord State v. Turner, 936 So.2d 89, 98 (La.2006) (“[Njothing in the [U.S.] Supreme Court’s jurisprudence suggests that requiring the jury rather than the court to decide whether the defendant has established mental retardation violates Due Process or the Eighth Amendment.”). The U.S. and Pennsylvania Constitutions identify, however, trial by jury as “the normal and preferable mode of disposing of issues of fáct in criminal cases.” U.S. v. Goodwin, 457 U.S. 368, 383 n. 18, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (emphasis added) (citing Patton v. U.S., 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930), abrogated on other grounds by Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)); see U.S. Const. Art. Ill, § 2, Cl. 3, amend. VI; Pa. Const. Art. I, §§ 6, 9. Any disputed Atkins claim will include necessarily issues of fact.
In the face of these provisions, appellant turns to arguments of policy. He asserts that logic dictates that “lay persons in the jury” should not be “entrusted] [with] such complex determinations” as required to decide a claim of Atkins mental retardation. Appellant expresses doubt that the General Assembly “would enact statutes” allowing inexperienced jurors, “who are
Jurors neither diagnose the accused nor scrutinize the law, they make credibility determinations based on the testimony at trial of witnesses (including experts), and they render verdicts based on the trial court’s instructions on the law. The courts routinely trust jurors to make such difficult determinations in the most complex of cases across fields of medicine, finance, engineering, etc., and to make findings of fact “under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts.... ” Patton, 281 U.S. at 289, 50 S.Ct. 253. To take appellant’s examples, in Pennsylvania, the factfinder at trial — oftentimes a jury — decides whether the accused has met his burden to prove an insanity defense, pursuant to statute. 18 Pa.C.S. § 315; see, e.g., Commonwealth v. Smith, 17 A.3d 873, 900-01 (Pa.2011). The issue of competency may be decided by the court, see 50 P.S. §§ 7402(d), 7403(a), but contrary to appellant’s argument, the General Assembly has not expressed a preference to submit mental health-related factual questions to either judge or jury, generally; and, as noted, it has not addressed Atkins at all.
b. Timing of Adjudication
With respect to the timing of the Atkins adjudication, appellant claims that the lower court’s refusal to make a pre-trial bench determination exposed him to trial before a death-qualified jury, which affected his jury-selection and trial strategy, forced him to forego testifying in his own defense, and permitted introduction into evidence of otherwise impermissible aggravators. According to appellant, had the court made a pre-trial adjudication in his favor, his jury pool and the jury would have been composed differently, and any of the new members of the jury could have affected the verdict. Also, he speculates the jury could have included two additional African-American jurors, which may have given him additional Batson challenges if the Commonwealth had struck those jurors, and/or strengthened his Batson challenge regarding venire person #34, discussed supra. In the alternative, if the trial court had rejected his Atkins claim pre-trial, appellant states that he “may have taken the stand in his own defense ... since he had nothing to lose at that point.” Appellant theorizes that, where the Atkins decision is deferred until after the guilt phase, the defendant’s choice of whether to testify on his own behalf is burdened because an accused who “does well in his trial testimony ... risks undermining his Atkins claim by appearing to be more competent than he really is. Or, he incurs the opposite risk of having his otherwise credible testimony dismissed as inaccurate by the jury, who is now called upon to determine the severity of his mental retardation.” Appellant concludes that his rights under the Fifth, Sixth, and Fourteenth Amendments were thereby violated. Appellant also asserts that “[tjhere is an inherent prejudice and stigma associated with advising the jury that the Commonwealth is seeking a sentence of death.” Appellant’s Brief at 14-15.
The U.S. and Pennsylvania Constitutions guarantee a criminal defendant trial “by an impartial jury” and “due process of law,” as safeguards of “the fundamental elements of fairness in a criminal trial.” U.S. Const, amends. VI, XIV; Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 1454, 173 L.Ed.2d 320 (2009) (per curiam); Pa. Const. Art. I, § 9. A death-qualified jury generally comports with constitutional requirements. Witherspoon v. Illinois, 391 U.S. 510, 517-18, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (death-qualified jury is not per se unconstitutional); see Lockhart v. McCree, 476 U.S. 162, 174-84, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (rejecting arguments that death-qualification of jury violates “impartial jury” and “fair cross-section” clauses of Sixth Amendment); Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74, 87 (1987) (rejecting federal and state constitutional argu
Moreover, appellant does not adduce any evidence that his particular jury was biased. Rather, he simply claims “inherent prejudice” and asserts that his rights were violated because he was “forced” into making less attractive strategic choices, such as selecting a jury from a death-qualified pool with only one African-American venire person, rather than from a general pool with three African-American venire persons. He speculates that a different jury composition, and a greater number of minority jurors on his jury, would have given him an improved chance of success at trial. But, even setting aside the speculative nature of this argument, the U.S. Constitution guarantees a fan* trial before an impartial jury, not a trial before what a party perceives as a favorable jury. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (“It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”). A criminal defendant is also “not entitled to the services of any particular juror but only as to twelve unprejudiced jurors.” Commonwealth v. Wallace, 555 Pa. 397, 724 A.2d 916, 922 (1999); Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 70 (1994). Moreover, the accused has no right to demand that specific minority groups or even members of his own race be included in his jury. And, it should be remembered that the constitutional right recognized in Batson belongs to prospective jurors intentionally denied participation in jury service based upon race and not to the criminal defendant any more than to the Commonwealth. Harris, supra, 817 A.2d at 1042-43; Powers, supra, 499 U.S. at 415-16, 111 S.Ct. 1364. In light of these principles, appellant’s argument that deferral of the Atkins decision violated his due process or Batson rights fails. As the U.S. Supreme Court has stated, a “procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.” Leland v. Oregon, 343 U.S. 790, 799, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); see also Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (“Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.”). A procedure also does not raise due process concerns simply because the accused believes that another method would improve his chances for acquittal. Medina, supra, 505 U.S. at 451, 112 S.Ct. 2572 (“The Due Process Clause does not ... require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused.”).
Appellant’s claim that his Fifth Amendment rights were violated in this scenario similarly fails. In relevant part, the Fifth Amendment protects a criminal defendant’s right against self-incrimination. The Fifth Amendment states that no
Here, appellant forwards no compelling argument, nor do we see any reason, to deviate from the well-established principles of constitutional law governing the claims at issue in this appeal. Additionally, the present record does not reveal any cognizable prejudice arising from the trial court’s decision to permit a death-qualified jury’s adjudication of appellant’s Atkins claim at the penalty phase. For these reasons, we reject appellant’s allegations of various per se constitutional violations as meritless. Appellant’s arguments do not identify any basis in law mandating a pre-trial, bench determination of Atkins claims.
c. Other Considerations: Atkins Procedures in Other States
As the above discussion reveals, there is no merit in appellant’s claim that the timing of an Atkins adjudication or the identity of the Atkins factfinder is constrained by any existing precepts of constitutional law. The Atkins Court likewise left the implementation of its new constitutional rule to the various states with no particular restraints attached. Accord Turner, supra, 936 So.2d at 99 (“Neither Atkins nor other controlling legal principles compel the selection of a specific fact finder regarding mental retardation or require the determination be made at a specific point in the adjudication process.”). For further insight into the proper manner of implementation, faced with the continuing inaction of the General Assembly, we will turn to a consideration of the approach of our sister states regarding Atkins adjudications.
On the other hand, in nine states, the primary adjudicator of an Atkins claim is the trier of fact, i.e., the jury, or the trial judge if the right to a jury is waived. See Cal.Penal Code § 1376 (2003); Conn. Gen. Stat. § 53a-46a (2001); State v. Rizzo, 266 Conn. 171, 833 A.2d 363, 376 & n. 5 (2003); Ga.Code § 17-7-131 (1988); La.Code Crim. Proc. art. 905.5.1 (2003); .Md.Code, Criminal Law, §§ 2-202, 2-303 (2002); Md. Rules, Rule 4-343 (2009); Mo. Stat. § 565.030 (2001); State v. Jimenez, 188 N.J. 390, 908 A.2d 181 (2006) (establishing guidelines but referring to procedural rules committee); N.C. Gen.Stat. § ISA-2005 (2001); Va.Code § 19.2-264.3:1.1 (2003).
Fourteen states (Arizona, Arkansas, Colorado, Idaho, Indiana, Kentucky, Mississippi, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah) require pre-trial determinations of Atkins claims, while eight states (Connecticut, Delaware, Florida, Louisiana, Maryland, Missouri, Virginia, and Washington) require decision at the penalty phase. The schemes in Alabama and New Mexico permit criminal defendants to raise an Atkins claim at any time during trial. The procedure of four states (California, Kansas, New Jersey, and North Carolina) provides for adjudication of mental retardation after the guilt phase but before deliberations on aggravators and mitigators at the penalty phase. Nebraska and New York would defer decision on Atkins claims until after the penalty phase, with New York judges reaching the issue of mental retardation only if the defendant is condemned to death. The procedures in both New Jersey and New York contemplated that the decision may be made before trial if “reasonable minds cannot differ as to the existence of mental retardation” or if the court has “reasonable cause” to believe that the criminal defendant is mentally retarded. Georgia stands out as the only state to require a decision during the guilt phase of trial, as the jury may enter a verdict of “guilty but mentally retarded.”
In most states, bench decisions are made before trial, while jury determinations are assigned to the penalty phase. But, jurisdictions are almost equally divided on whether the Atkins adjudication is made before or after the trier of fact has heard the evidence at trial. Thus, in fifteen of the twenty-two states in which judges are the primary adjudicators, the Atkins determination is either made before trial, or as soon as possible and preferably before trial (Alabama). With the exception of Georgia, the remaining sixteen states deferred decision until after the conclusion of the guilt phase, whether the decision was made by judge or jury. This survey corroborates what we have already determined upon examination of appellant’s argument: his preferred method of adjudicating an Atkins claim is not constitutionally required. As revealed by the varied approaches of the states, in the wake of Atkins, no particular path is mandated, nor preferred.
d. Decision of Appellant’s Claim
Against this background, we find that the trial court committed no error in deferring the Atkins decision to a jury for a penalty phase decision. This is particularly so given that appellant waited until the day of trial to forward his claim. Appellant notified the Commonwealth and the trial court of his Atkins claim and requested the pre-trial bench hearing on February 23, 2009, the first day of voir dire. See N.T., 2/23/09, at 12-21, 140-52. Moreover, appellant was not ready to proceed on the claim: he did not present a psychi-
The record supports the trial court’s conclusion that the Commonwealth was not notified until the morning of voir dire and that postponing trial would have been burdensome on the Commonwealth, which had not caused the delay. As we explained above, no law, constitutional or otherwise, entitled appellant to a different manner of decision. And, even if there were some colorable basis for appellant’s claim of a “right” to a pre-trial bench determination of an Atkins claim in the abstract, the trial court would have been warranted in denying the request under these circumstances.
e. Adoption of a Procedure for the Determination of Atkins Claims at Trial
1. Factfinder and Timing of Atkins Adjudication
Nine years have elapsed since Atkins was decided, and the General Assembly has not yet adopted measures for implementation of the constitutional restriction on the execution of mentally retarded capital offenders. The void has already led this Court to address the substantive standard for assessing Atkins mental retardation, see Miller, 888 A.2d at 629-31, as well as the appropriate manner to address post-conviction claims sounding in Atkins. See Bracey, 986 A.2d at 134: Miller, 888 A.2d at 629 n. 5. While the Atkins decision in this matter is relatively straightforward, the case has provided an opportunity for a comprehensive consideration of the constitutional parameters of Atkins review, informed by the approaches of other states in implementing Atkins. Although no particular procedure for implementation of Atkins has been constitutionally commanded by the U.S. Supreme Court, the prospect of different standards and manners of implementation in capital cases within a single state is no longer tolerable. Accordingly, this Court will take this occasion to establish procedures for the implementation of Atkins at the trial level. Because there are no substantive constitutional restrictions upon implementation of procedures to decide Atkins claims, the procedures we announce below are a proper exercise of our constitutional authority over judicial administration. See Pa. Const. Art. V, § 10(c).
After considering the arguments raised by the parties here, the centrality of the right to a jury in our constitutional system, concerns of judicial economy and administrative efficiency, as well as the experience of other states, we approve of the procedure that the trial court used in this case — i.e., submitting a colorable Atkins issue to the jury for a penalty phase decision.
Furthermore, we agree with those states which have concluded that, if the factfinder (whether the jury or the judge, in cases of jury waiver) rejects the Atkins claim, proper evidence respecting alleged mental retardation may still be presented and argued to the jury if it supports a statutory mitigating circumstance. As a mitigator, mental retardation is less than a death penalty disqualifier and requires weighing by the jury with other mitigators, if any, against any aggra-vators. 42 Pa.C.S. § 9711(c); see Bobby, supra, 129 S.Ct. at 2149 (Atkins claim distinct from offer of mental retardation evidence in mitigation). And finally, our approval of the progression aspect of the court’s charge — i.e., directing the penalty phase jury to pass upon Atkins first — is consistent with the High Court’s command that a person found to be mentally retarded is ineligible for the death penalty.
2. Burden of Proof on Defendant by Preponderance
In approving the placement of the burden of proof on the defendant by a preponderance of the evidence, we underscore that “it is normally within the power of the [s]tate to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden
As the High Court has ' explained, “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Cooper v. Oklahoma, 517 U.S. 348, 362, 116 -S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)). While the risk of error in a particular adjudication does not vary depending on the standard of proof adopted, the burden allocates that risk between the parties. Id. at 366, 116 S.Ct. 1373. A more stringent burden of proof imposes on a party a higher risk of an erroneous decision. Id. at 362-63, 116 S.Ct. 1373. In a criminal proceeding, an allocation of risk complies with due process “unless it offends some principle of justice so rooted .in the traditions and conscience of our people as to be ranked as fundamental.” Patterson, 432 U.S. at 202, 97 S.Ct. 2319; Medina, 505 U.S. at 446, 112 S.Ct. 2572. Generally, in examining state burdens of proof, the High Court gives “substantial deference” to procedures grounded in the common law tradition, weighs their impact on “any recognized principle of fundamental fairness in operation” and, to a lesser extent, gives consideration to contemporary practice. Id. at 445-48, 112 S.Ct. 2572.
The categorical exemption of mentally retarded individuals from the death penalty is a relatively new concept, part of “evolving standards of decency” recognized by the High Court in the Atkins decision, rather than a concept long-rooted in the common law tradition. Atkins, 536
Initially, we note that there is no constitutional impediment to placing the burden of production and persuasion on the accused, the proponent of the Atkins claim, to prove his mental retardation. It is axiomatic that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. at 364, 90 S.Ct. 1068. But, as we explained in Bracey, “under the current Pennsylvania statutory scheme, a lack of mental retardation is not an element or the functional equivalent of an element of the capital sentence, since it does not relate to the facts surrounding the commission of the crime nor does it relate to the defendant’s mental state at the time he committed the crime.... The statute is not written in the negative.” Bracey, 986 A.2d at 145. An Atkins-style mental retardation adjudication, for purposes of death ineligibility, is an intrusion upon the capital penalty scheme designed by the General Assembly. The Atkins adjudication, therefore, is not logically a part of the necessary burden of proof on the Commonwealth.
Moreover, although the Atkins decision recognizes a constitutional right, once a state provides the accused access to procedures for making a mental retardation evaluation, there is no due process requirement that the Commonwealth prove a negative, and assume the burden of vindicating the defendant’s constitutional right by persuading the trier of fact that the defendant is not mentally retarded and is eligible for execution. See Medina, 505 U.S. at 449, 112 S.Ct. 2572 (burden on criminal defendant of proving incompetency is constitutional). This is consistent with the traditional understanding of due process, which requires “that only the most basic procedural safeguards be observed.” Id. at 453, 112 S.Ct. 2572. A “reasonable opportunity” to prove mental retardation is sufficient to meet this standard. Id. at 451, 112 S.Ct. 2572.
Assigning the burden of proof to the Atkins defendant is consistent with these proscriptions and with the treatment of affirmative defenses generally. At common law, the burden of proving affirmative defenses, or “all circumstances of justification, excuse or alleviation[,] rested with the defendant.” Patterson, 432 U.S. at 202, 97 S.Ct. 2319. Indeed, “[t]he decisions are manifold that within limits of reason and fairness the burden of proof may be lifted
Notably, in Medina, the Supreme Court rejected the criminal defendant’s argument that the burden of proof in a competency hearing should be allocated to the state because his constitutional rights were implicated. Medina, 505 U.S. at 451-52, 112 S.Ct. 2572 (distinguishing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (waiver of Miranda rights); Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377, (1984) (inevitable discovery of evidence obtained by unlawful means); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (voluntariness of consent to search); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (voluntariness of confession)). According to the Court, the cases cited by the defendant in support of his argument did not control the result “because they involved situations where the government sought to introduce incul-patory evidence obtained by virtue of a waiver of, or in violation of, a defendant’s constitutional rights. In such circumstances, allocating the burden of proof to the government furthers the objective of deterring lawless conduct by police and prosecution.” Id. at 452, 112 S.Ct. 2572 (internal quotes omitted). The Court concluded that different interests were at stake in a competency determination. Id.
The only limitation identified by the High Court, as a general matter, is “that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.” Patterson, 432 U.S. at 203 n. 9, 97 S.Ct. 2319 (quoting Morrison v. California, 291 U.S. 82, 88-89, 54 S.Ct. 281, 78 L.Ed. 664 (1934)). Justice O’Connor in concurrence further explained the relevant considerations in determining whether the placement of the burden of proof is fundamentally unfair: “whether the government has superior access to evidence; whether the defendant is capable of aiding in the garnering and evaluation of evidence on the matter to be proved; and whether placing the burden of proof on the government is necessary to help enforce a further right, such as the right to be presumed innocent, the right to be free from self-incrimination, or the right to be tried while competent.” Medina, 505 U.S. at 455, 112 S.Ct. 2572 (O’Connor, J., concurring).
With respect to Atkins mental retardation determinations, the relevant considerations among these factors weigh in favor of placing the burden of proof on the capital defendant. First, the capital defendant generally has superior knowledge and access to evidence regarding his mental capabilities. In Atkins, the Supreme Court majority suggested that the deficiencies in understanding and processing information, communicating, learning from experience, engaging in logical reasoning, controlling impulses, and understanding others’ reactions diminish the personal culpability of mentally retarded persons for criminal acts, and “undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.” Atkins, 536 U.S. at 317-18, 122 S.Ct. 2242. In this regard, the Court opined that the risk of
Furthermore, to quote Justice O’Con-nor again, if the burden rested on the Commonwealth, “a defendant will have less incentive to cooperate in psychiatric investigations, because an inconclusive examination will benefit the defense, not the prosecution. A defendant may also be less cooperative in making available friends or family who might have information about the defendant’s mental state.” Medina, 505 U.S. at 455, 112 S.Ct. 2572 (O’Connor, J., concurring); accord Patterson, 432 U.S. at 211 n. 13, 97 S.Ct. 2319 (quoting with approval that “placing the burden of proof on the defense, with a lower threshold, however, is fair because of defendant’s knowledge or access to the evidence other than his own on the issue.”). This concern is heightened in the Atkins context. Courts have recognized the potential to manipulate evidence regarding mental retardation. See, e.g., Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170, 1187-88 (2009) (test for mental retardation seeks “to ensure that defendants cannot feign mental retardation after being charged with a capital crime”); Atkins, 536 U.S. at 353-54, 122 S.Ct. 2242 (Scalia, J., joined by Relinquish C.J. and Thomas, J., dissenting) (“capital defendant who feigns mental retardation risks nothing at all”); Commonwealth v. Birdsong, 24 A.3d 319, 352 n. 3 (Pa.2011) (Castille, C.J., concurring); Grell, 135 P.3d at 702 (Atkins claimant “has significant motivation to attempt to score poorly on IQ test”); Bowling v. Commonwealth, 163 S.W.3d 361, 376 (Ky. 2005) (depression, tension, anxiety, and incentive to malinger can cause IQ score of capital defendant to be “significantly skewed”). Assigning the minimum preponderance risk to the Atkins proponent in this context is appropriate. In short, placing the burden on the capital defendant to prove his claim of mental retardation by a preponderance of evidence would not exacerbate the concerns identified by the High Court regarding the risk of wrongful execution of mentally retarded capital defendants; nor would placing that burden on the state advance the new Eighth Amendment right in any proper fashion.,
Moreover, allocating the risk to the capital defendant does not violate due process. An Atkins claim will be decided through procedures which ensure the capital defendant a reasonable opportunity to prove mental retardation to an impartial factfin-der. Placing the burden on the defendant does not contravene any accepted standards of fairness and justice. See, e.g., Leland, 343 U.S. at 799, 72 S.Ct. 1002 (burden on defendant to prove insanity defense). Finally, allocating the burden to the defendant does not disturb existing
Respecting the degree of proof, the preponderance standard also comports with the burden usually imposed on criminal defendants. Imposing this lowest of standards on the capital defendant will affect Atkins determinations “only in a narrow class of cases where the evidence is in equipoise” or where the evidence is equally strong that the capital defendant is mentally retarded and that he is not. Medina, 505 U.S. at 449, 112 S.Ct. 2572. The Atkins Court recognized the inherent and practical difficulties of determining which offenders are in fact retarded. Atkins, 536 U.S. at 318, 122 S.Ct. 2242 (describing subjective clinical factors for determining mental retardation). While we do not believe that the difficulty of the inquiry alone mandates a low probative threshold, given the presumptions favoring life built into Pennsylvania’s capital sentencing scheme, we perceive no basis for allocating to the capital defendant the larger share of risk that accompanies burdens of proof more onerous than a preponderance of the evidence. Also, in this Commonwealth, this degree of proof generally comports with that of defendants on whom the burden is placed to prove their affirmative defenses. See, e.g., 18 Pa.C.S. § 315(a) (insanity defense); 18 Pa.C.S. § 313(b) (entrapment defense).
In approving the placement of the burden of proof on the defendant by a preponderance of the evidence, we are in line with the great weight of authority. See Grell, supra, 135 P.3d at 703. “Every state that has addressed the issue [predating or after Atkins ] has found that the defendant should bear the burden of proof
3. Juror Unanimity
Similarly, again operating without a contrary indication of policy from our General Assembly, we believe that Atkins ineligibility for execution is proper only where the jury finding of mental retardation is unanimous. The U.S. Supreme Court has not spoken on the constitutionality of a state’s procedural rule requiring unanimity to accept an affirmative defense but not requiring unanimity to reject the same affirmative defense. See McKoy v. North Carolina, 494 U.S. 433, 450 n. 4, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring) (“jury’s inability to agree as to an ultimate issue [ie., an affirmative defense] typically results in a deadlock or hung jury”); id. at 467 & n. 4, 110 S.Ct. 1227 (Scalia, J., dissenting, joined by Rehnquist, C.J., and O’Connor, J.) (where instruction states that “[G]uilt must be established beyond a reasonable doubt before the jury can even consider an affirmative defense,” if jurors follow instruction, “it would appear that the jury that has considered but not unanimously found an affirmative defense must return a verdict of guilty”). While no established constitutional rule currently binds us to a result when the jury deadlocks, as we have developed above, the High Court has also recognized that states have latitude in deciding how a jury must consider Atkins evidence. See Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (states to devise implementing procedure); cf. Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (stricter constitutional limitations on state decisions regarding “what” evidence jury may consider versus “how” evidence is considered).
One element of “how” evidence is considered by the jury is the quantum of proof; another is the level of juror agreement required to exempt a capital defendant from the death penalty under Atkins. Both elements involve decisions on which party bears the risk of error regarding the Atkins decision. Regarding unanimity, of concern are cases in which it is possible that some, but not all, jurors will be persuaded by the capital defendant’s evidence of mental retardation and the jury will be divided on the Atkins question. Assuming that jurors follow the trial court’s instructions regarding this Court’s Miller stan
In practical terms, placing the burden to affirmatively prove an Atkins claim on the proponent means that if the jury unanimously finds that the capital defendant is mentally retarded, he is exempt from the death penalty, and the penalty proceeding is at an end. Any other jury decision equates to a finding in favor of the Commonwealth on the Atkins issue. A jury finding, much less a unanimous jury finding, that the defendant is not mentally retarded is unnecessary; as with all preponderance determinations, if the jury believes the evidence to be equivocal, the party with the burden cannot prevail. Accord U.S. v. Cisneros, 385 F.Supp.2d 567, 568 (E.D.Va.2005) (memorandum order) (same).
A different rule governing instances of jury division on the Atkins question would be unmoored from the above precedents, would be unwieldy (requiring juror interrogatories or polling mid-proceeding and the prospect of em-panelling new Atkins juries), would go farther than Atkins commands, and is not required, as a matter of policy, by our General Assembly. We are aware, of course, that in the context of the ultimate weighing process in the penalty phase, the U.S. Supreme Court has calibrated the risk differently. At this “selection” stage, the central interest in devising and giving effect to mitigating evidence is to avoid arbitrary decisions to impose the death penalty. McKoy, 494 U.S. at 440, 110 S.Ct. 1227. Thus, the Court prohibits states from limiting a sentencing jury’s consideration of relevant mitigating evidence by requiring unanimity to find, as a matter of law, that a mitigating circumstance exists. Id. at 443, 110 S.Ct. 1227. The corollary of this rule is that a single juror may give sufficient weight to a mitigating circumstance to render it a disposi-tive factor at the penalty phase. Accord Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 101 n. 1 (2004) (Saylor, J., concurring). In short, at the selection phase, where unanimity is required to return a sentence of death, a single juror’s view of a mitigating circumstance can result in a life sentence.
But, the Atkins inquiry concerns eligibility for capital punishment given an emerging national consensus against execution of the mentally retarded, not the jury’s later weighing and selection process, and concomitant concerns with reducing arbitrary decisions in that weighing process. The concern with giving effect to all possible relevant mitigating circumstances is not present in the Atkins inquiry. The risk posed by non-unanimous Atkins determinations by a jury may properly be borne by the capital defendant, and certainly, the U.S. Supreme Court has not indicated to the contrary.
Moreover, under the procedure we approve here, a defendant whose Atkins claim is rejected by the jury still has the right to present or argue the same competent evidence in mitigation at the selection phase of the trial, in conjunction with other relevant evidence of mitigation (including other evidence bearing on his mental state and condition independent of mental retardation). The power of one juror to give ultimate effect to mitigation evidence, including evidence bearing on mental retardation which persuaded the same juror at the Atkins stage, remains intact at this
VIII. Atkins Jury Instructions
Finally, appellant submits a question for review regarding the trial court’s Atkins jury instructions. In the argument section of the brief, appellant states that he “respectfully declines argument” on this issue because the court’s jury instructions on mental retardation are a legal nullity. Appellant rests on the argument that because Atkins relief is to be decided by a judge, any jury instructions would be unacceptable and inappropriate. The Commonwealth responds that the issue is waived and refers this Court to its prior discussion of jury instructions. The trial court undertook a merits analysis of this issue and found appellant’s claim meritless.
Appellant purposely abandons on appeal any argument regarding the propriety of the trial court’s jury instructions. Accordingly, we conclude that this issue is not renewable. See, e.g., Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991) (Court did not undertake review of issues appellant abandoned on appeal).
IX. Statutory Review
Having rejected the claims for relief appellant has raised, we now turn to the independent penalty review mandated by statute, 42 Pa.C.S. § 9711(h)(3). Section 9711(h)(3) provides that “[t]he Supreme Court shall affirm the sentence of death unless it determines 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 finding of at least one aggravating circumstance specified in subsection (d).” Our review of the record reveals that the sentence of death in this case was not the product of passion, prejudice or any other arbitrary factor, but was based upon the record. In addition, the evidence presented was sufficient to support the jury’s finding of the aggravating circumstance of murder committed during the perpetration of a felony (robbery), 42 Pa.C.S. § 9711(d)(6). Accordingly, we will not disturb the sentence of death.
Conclusion
For these reasons, appellant’s judgment of sentence is affirmed.
Justices SAYLOR, EAKIN, BAER, and McCAFFERY join the opinion.
Justice ORIE MELVIN files a concurring and dissenting opinion, in which Justice TODD joins.
Other States’ Approaches to Atkins Procedure
Alabama Judge. As soon as possible, preferably before trial. On defendant (preponderance) Morrow v. State, 928 So.2d 315 (Ala.Crim.App. 2004); Ala. R.Crim.P. 32.
Alaska
Arizona Judge (death penalty notice triggers expert psychiatric review). And trier of fact if evidence of mental retardation is submitted in mitigation at penalty phase. Pre-trial. On defendant Ariz.Rev.Stat. (clear & convincing § 13-753 (2001). evidence).
Arkansas Judge. And jury (unanimous) during penalty phase de novo, if judge denies claim. Pre-trial. On defendant (pre- Ark.Code § 5-4-ponderance). 618 (1993).
California Jury. Or judge pre-trial Post guilt phase, if, within a reasonable pre penalty time prior to trial, defen- phase, dant waives jury. On defendant (pre- Cal.Penal Code ponderance). § 1376 (2003).
Colorado Judge. Pre-trial. On defendant Colo.Rev.Stat. (clear & convincing § 18-1.3-1102 evidence). (2002).
Connecticut Trier of fact (jury or judge, if defendant waives jury). Penalty phase. On defendant (preponderance) (same as w/ mitigator). Conn. Gen.Stat. § 53a-46a (2001); State v. Rizzo, 266 Conn. 171, 833 A.2d 363, 376 & n. 5 (2003).
State Factfinder Timing Burden of Proof Source
Delaware Judge. And jury during penalty phase in mitigation, if judge denies claim. Penalty phase. On defendant 11 Del.Code (clear & convincing § 4209 (2002). evidence).
Florida Judge. Penalty phase. On defendant Fla. Stat. (clear & convincing § 921.137(2001). evidence).
Georgia Trier of fact (jury, or judge if defendant waives jury). Guilt phase (verdict is “guilty but mentally retarded”). On defendant (beyond a reasonable doubt). Ga.Code § 17-7-131 (1988); But see Hill v. Scho-field, 608 F.3d 1272 (11th Cir. 2010)(beyond a reasonable doubt burden unconstitutional), vacated & rehearing granted, 625 F.3d 1313 (11th Cir.2010) (en banc).
Idaho Judge. Pre-trial. On defendant (pre- Idaho Code ponderance). § 19-2515A (2003).
Illinois
Ind.Code 35-36-9-5 (1994). Ind. Code 35-36-9^ (1994); See Pruitt v. State, 834 N.E.2d 90 (Ind.2005) (clear & convincing evidence burden of proof unconstitutional). Indiana Judge. Pre-trial. On defendant (preponderance).
Iowa
State Factfinder Timing Burden of Proof Source
Kansas Judge. Post guilt phase, On defendant (un- Kan. Stat. § 21-pre penalty clear). 4623 (1994), re-phase. numbered Kan. Stat. § 21-6622 (2011), eff. July 1,2011.
Ky.Rev.Stat. § 532.135 (1990). Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005). Kentucky Judge. Pre-trial. On defendant (preponderance).
Louisiana Jury. Or judge pre-trial if Penalty phase. On defendant (pre- La.Code Crim. parties agree. ponderance). Proc. art. 905.5.1 (2003).
Maine
Maryland Trier of fact (jury, or Post guilt phase, On defendant (pre- Md.Code, Crimi-judge if waives jury). pre penalty ponderance). nal Law, §§ 2-phase. 202,2-303 (2002); Md. Rules 4-343 (2009).
Michigan
Minnesota
Mississippi Judge. Pre-trial. URCCC 8.02. On defendant (preponderance). Chase v. State, 873 So.2d 1013 (Miss.2004).
Missouri Trier of fact (jury, or judge if defendant waives jury). Or judge pre-trial if parties agree in writing and with leave of court (does not waive right to re-submit to trier of fact). Penalty phase. On defendant (preponderance). Mo. Stat. § 565.030 (2001).
Montana
Nebraska Judge. Post penalty phase but pre-sentence. On defendant (preponderance). Neb.Rev.Stat. § 28-105.01 (1998).
Nevada Judge. Pre-trial. On defendant (preponderance). Nev.Rev.Stat. 174.098 (2003).
New Jersey
New Hampshire
New Mexico
New York
State Factfinder Timing Burden of Proof Source
North Carolina Jury. Or judge pre-trial at court’s discretion, or if prosecution consents (does not waive right to submit to jury). Post guilt phase, pre penalty phase. On defendant (clear & convincing evidence pre-trial, or preponderance at penalty phase). N.C. Gen.Stat. § 15A-2005 (2001).
North Dakota
Ohio Judge. Pre-trial; but, On defendant (pre- State v. Lott, 97 may also be ponderance). Ohio St.3d 303, raised during 779 N.E.2d 1011 trial. (2002).
Oklahoma Judge. And jury pre-pen-alty phase if judge denies claim (not death penalty eligible if unanimous jury decision, otherwise simple mitigator). Pre-trial. On defendant (clear & convincing evidence pre-trial, or preponderance at penalty phase). 21 Okla. Stat. S 701.10b (2006).
Oregon
Rhode Island
South Carolina Judge. And jury at pen- Pre-trial, alty phase in mitigation, if judge denies claim. On defendant (preponderance). Franklin v. Maynard, 366 S.C. 276, 588 S.E.2d 604 (2003); S.C.Code § 16-3-20 (1992) (mitigation).
South Dakota Judge. And jury during penalty phase in mitigation, if judge denies claim. Pre-trial. On defendant (preponderance). S.D. Codified Laws § 23A-27A-26.3 (2000).
Tennessee Judge. And jury during penalty phase in mitigation, if judge denies claim. Pre-trial. On defendant (preponderance). 'Tenn.Code § 39-13-203 (1990).
Texas Trier of fact (jury or judge) (accepted; required procedure not yet established). Penalty phase, (accepted; required procedure not yet established). On defendant (preponderance). Gallo v. State, 239 S.W.3d 757 (Tex.Crim.App. 2007); Williams v. State, 270 S.W.3d 112 (Tex. Crim.App.2008).
Utah Judge. And jury during penalty phase in mitigation, if judge denies claim. Pre-trial. On defendant (preponderance). Utah Code § 77-15a-104 (2003).
Vermont
Washington Judge. Penalty phase. On defendant (pre- Wash. Rev.Code ponderance). § 10.95.030 (1993).
West Virginia
Wisconsin
Wyoming
. The issues on appeal have been reordered for clarity.
2. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
3. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Appellant briefs issues 1 and 2 together. However, we will address these issues separately because they raise distinct questions, as will become apparent from our analysis, infra.
. Appellant addresses separately whether the evidence was sufficient to prove robbery. See Issue 3, infra.
. The Commonwealth described the robbery count in the Information as follows:
COUNT 2 — ROBBERY—INFLICT SERIOUS BODILY INJURY — 18 P[a.C.SJ 3701(A)(l)(i) — (FELONY 1) did during the course of committing a theft, inflict serious bodily injury upon another, threaten another with or intentionally put him in fear of immediate serious bodily injury; inflict bodily injury upon another or threaten another with or intentionally put him in fear of immediate bodily injury; TO WIT: actor and his accomplices did approach 1016 Ridge Rd, Elizabethtown PA, with the intent to rob any victim they encountered. Ray P. Diener did answer the door, and the actor and accomplices did request to use the phone under false pretenses. Mr. Diener obtained a cellular phone and Lorenzo Schrijver took the cellular telephone with an intent to deprive Mr. Diener of that property. Abraham Sanchez, Jr. then shot Mr. Diener three (3) times causing his death. Said offense occurred at 1016 West Ridge Rd., West Donegal Township, Lancaster County.
Information, 08/28/2007.
. It is unclear whether appellant’s claim on appeal refers to one or to multiple spectators. Appellant's Brief at 17 (”[d]efense requested the court remove the individual(s) causing the disruption”). The record reveals that appellant made a generalized objection at trial, referring to "spectators,” but then he specifically identified only one person, the victim’s daughter, as sobbing. See N.T., 3/2/09, at 1225-26, 1253-54; N.T., 3/3/09, at 1537-42. Because there is no evidence in the record regarding the conduct of any other spectator
. Further, although appellant offered a point of charge on the issue of emotional outburst by family members which the court refused to read to the jury, appellant did not object on this basis to the jury instruction, did not raise this issue in his Rule 1925(b) statement, and did not raise and develop such a claim in this Court. See N.T., 3/6/09, at 2294-96.
. Based on his description of the photographic evidence challenged, appellant also appears to question the admission of Commonwealth Exhibit 22.
. The record contains no description of how the victim’s body was "covered” in the photograph. Appellant, however, raised no objection to the manner of redaction.
. Several bills were introduced to set standards for adjudicating mental retardation in Pennsylvania, but none were enacted into law. See Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624, 633 (2005) (Eakin, J., concurring); see, e.g., S.B. 397, 2011-12 Gen. Assem., Reg. Sess. (Pa.2011); S.B. 628, 2009-10 Gen. Assem., Reg. Sess. (Pa.2009). Thus, while acknowledging that a definition of mental retardation from the General Assembly would have been preferable, left with the legislative void, the Miller Court adopted a mental retardation standard under Atkins to prevent further delays in the trial and decision of cases. Id. at 633 n. 11. We are now called upon to fill a similar void concerning other aspects of Atkins.
. In Miller, we did not address the question of whether an Atkins claim was to be resolved at trial by a judge or jury because the issue of mental retardation was raised on collateral review under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Miller, 888 A.2d at 627 n. 3.
. Although Bracey addressed an asserted federal constitutional right to a jury decision of Atkins mental retardation in post-conviction proceedings, the Court's reasoning in rejecting any such entitlement to a jury claim is instructive with respect to Atkins proceedings at trial. Bracey had relied on the Appren-di/Ring principle that "if a State makes an increase in a defendant's authorized punishment contingent on [a] finding of fact, that fact — no matter how the state labels it — must be found by a jury beyond a reasonable doubt.” Ring, 536 U.S. at 602, 122 S.Ct. 2428; Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348. Bracey argued that the maximum punishment for first-degree murder in Pennsylvania was life imprisonment and only defendants who were not mentally retarded were subject to the "increased” punishment, the death penalty. Bracey, 986 A.2d at 135. But, we rejected the application of Ring in the Atkins context, explaining that the decision in Atkins "did nothing to change Pennsylvania’s statutory scheme for determining that class of defendants who meet the statutory criteria to render them eligible for the death penalty” and operated instead "as an external restriction upon existing state prerogatives, by ‘exempting’ certain members of that otherwise eligible class from the imposition of the death penalty because of Eighth Amendment concerns.” Id. at 146. We noted that the Ring Court’s concern was with facts that increased a statutory penalty but that "only a decrease,” not an increase, was predicated on the outcome of a mental retardation adjudication. Id. at 146 n. 17. On this basis, we rejected the claim that a jury adjudication of the Atkins issue was constitutionally mandated. Accord State v. Laney, 367 S.C. 639, 627 S.E.2d 726, 731 (2006); State v. Hill, 177 Ohio App.3d 171, 894 N.E.2d 108, 120 (2008).
. From this perspective, we respectfully view Madame Justice Orie Melvin's discussion of Apprendi, Ring, and Schriro v. Smith as inapt. See Concurring/Dissenting Op. at 81-82. Simply because a jury is not constitutionally required to decide an Atkins claim does not mean that a jury is not a better or more appropriate factfinder. As Bracey recognized, the role of the jury in the Atkins context has not yet been decided by the U.S. Supreme Court. See Bracey, 986 A.2d at 142-43. In Pennsylvania, capital defendants have expressed different views: some, like appellant, argue for a non-jury disposition as a matter of right; others, like Bracey, have argued that an Atkins claim must be decided by a jury, as a matter of policy, if not as a matter of right. The dissent’s approach to Atkins adjudications, however, affords no flexibility for either the criminal defendant or the Commonwealth.
. Madame Justice Orie Melvin asserts that "determining whether a defendant has mental retardation is akin to determining whether a defendant is competent to stand trial,” and should be resolved similarly, via a pre-trial bench decision. Concurring/Dissenting Op. at 79-81. The concurrence conflates the separate questions of competency to stand trial and of competency to be executed, by citing both to Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997) (competency to stand trial) and to Commonwealth v. Banks, 29 A.3d 1129 (Pa.2011) (competency to be executed). Although all three inquiries concern the mental capacity of a criminal defendant, they implicate the protection of distinct constitutional interests and different procedural concerns. Most obviously, competency to be executed is an Eighth Amendment concern; the adjudicatory process is clearly inapposite because it takes place after trial and after judgment is final. See Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
The distinction regarding the competency to stand trial decision process is that it was created by the General Assembly, not by this Court. See 50 P.S. §§ 7402(d), 7403(a). Moreover, inquiries into a defendant’s competency to stand trial and an accused’s mental retardation are fundamentally dissimilar. A competency inquiry is driven by Fourteenth Amendment due process concerns regarding a defendant's ability to understand criminal charges and proceedings, and to consult counsel, so as to ensure the ability to manage a meaningful defense. See Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Criminal proceedings for an incompetent defendant are stayed until the defendant is found competent. The salient constitutional interests for devising an adequate process are fairness and sound judicial administration, including a recognition of inherent difficulties with a nunc pro tunc competency decision, especially since competency can change over time. Id. at 178 n. 13, 183, 95 S.Ct. 896 (“resolution of the issue of com-
. Justice Orie Melvin "find[s] no reason to prohibit the judge from making an Atkins decision prior to trial” and expresses a preference for requiring such an approach, premised largely on policy concerns. The concurrence emphasizes alleged time and cost savings of avoiding a capital trial. Concurring/Dissenting Op. at 81-82. Of course, the approach the Court adopts today recognizes that resolution by a judge can be appropriate, if the parties agree. Respecting the concurrence’s preference to adopt a policy-based requirement of pre-trial bench disposition, we would note that the policy-making branch, the General Assembly, has not been able to agree on the appropriate policy, including the timing of the Atkins adjudication and the identity of the finder of fact. See, e.g., S.B. 397, 2011-12 Gen. Assem., Reg. Sess. (Pa.2011); S.B. 628, 2009-10 Gen. Assem., Reg. Sess. (Pa.2009). In short, it is not readily apparent what the appropriate policy should be, if policy were the driving force. We would leave to the General Assembly any policy-based recalibration of Atkins implementation.
. Our discussion and table includes two states (New Jersey and New Mexico), which recently abolished the death penalty and a
. In Texas, the Criminal Appellate Court has found no error with submitting an Atkins claim to the jury at the penalty phase. But, the state has not yet established a required procedure for adjudicating mental retardation claims. See Williams v. State, 270 S.W.3d 112 (Tex.Crim.App.2008); Gallo v. State, 239 S.W.3d 757 (Tex.Crim.App.2007).
. Of course, an Atkins claim is not properly for the factfinder unless there is competent
. Judge Madenspacher offered the following jury instruction respecting the Atkins question:
Members of the jury, ... the first thing that you're going to have to determine before you go on to this balancing that [counsel] talked about is whether or not the defendant is mentally retarded. And in this case, there is an issue of whether the defendant is or is not mentally retarded.
And the reason you have to decide this is because the United States Supreme Court in the famous case of Atkins versus Virginia ... they've ruled that the execution of mentally retarded persons violates the 8th Amendment^ the] [prohibition against [c]ruel and [u]nusual [p]unishment.
Consequently, the first thing that you must decide is on the issue of whether the defendant is or is not mentally retarded.
In order to find that the defendant is mentally retarded, he must prove to you by a preponderance of the evidence the following:
Number one, he possesses limited intellectual functioning, meaning that his IQ score is approximately two standard deviations, which is 30 points, below the mean, which is 100, with a standard error of measurement of three to five points.
Number two, that his adaptive behavior as expressed in conceptual, social and practical skills is significantly limited.
And, number three, the age of onset was before age 18.
[[Image here]]
And I’ll address this to all the jurors, and particularly to the foreperson. The same foreperson will deal with the sentencing.
It's what I call a mental retardation verdict slip. And it starts off basically simply [as] this: Do you unanimously find, by a preponderance of the evidence, that the defendant is mentally retarded or is not mentally retarded?
If you unanimously agree, check the appropriate line.
And this is relatively simple. The first one will say, we, the jury, unanimously find by a preponderance of the evidence that the defendant is mentally retarded.
And then after that, I’ll tell you what happens. If you check this line, the defendant cannot receive the death penalty. Return to the courtroom and the [c]ourt will impose a sentence of life imprisonment without parole.
Second possible block is, we, the jury, unanimously find, by a preponderance of the evidence, that the defendant is not mentally retarded. Okay?
And if you check that block, the one after that says, if you check this line, then proceed to the first degree murder sentencing verdict slip; in other words, we start into the [aggravating circumstances/mitigating circumstances] deliberations that everybody's talked about.
[[Image here]]
You may not direct the deliberations toward the death penalty balancing until the decision of the mental retardation has been made.
If you unanimously find the defendant is not mentally retarded, you must then decide what to impose upon the defendant, what sentence to impose upon the defendant. And your sentence will depend on what you find about aggravating and mitigating circumstances.
N.T., 3/11/09, 2821-24. We do not endorse the particulars of this jury instruction, as appellant does not develop any related claims, see infra, but reproduce it for illustrative purposes.
As we explain in the text, we explicitly approve of the instruction insofar as it: (1) directs the jury to pass upon death eligibility under Atkins before proceeding to consider aggravators and mitigators only if the Atkins claim is rejected; and (2) places the burden on the proponent of the Atkins claim to prove mental retardation by a preponderance of the evidence. There are aspects of the charge
. We recognize the force of Justice Orie Melvin’s suggestion that the parameters of Atkins claim notice requirements must also be defined. See Concurring/Dissenting Op. at 77-80. However, we do not deem it necessary to establish through decisional law the strict procedure proposed by the concurrence or to anticipate the waiver consequences. We do not dispute that pre-trial notice should be required, but also realize that there may be reasons why counsel would not recognize the viability of an Atkins claim until later in the trial preparation stage. We will refer the task of devising the notice procedure to the expertise of our Criminal Procedural Rules Committee, to consider the appropriate timing of the claim notice, while providing sufficient flexibility for good cause shown.
. Of the states with a procedure for determining mental retardation at the time of the Atkins decision, twelve required proof by a preponderance of the evidence, five states by clear and convincing evidence, and one state (Georgia, the very first state to exempt the mentally retarded from execution) by proof beyond a reasonable doubt. Since Atkins, the Supreme Court of Indiana has declared that state’s provision requiring proof by clear and convincing evidence unconstitutional, and adopted a preponderance of the evidence standard. Pruitt v. State, 834 N.E.2d 90, 102 (Ind.2005).
. Although the U.S. Supreme Court has not addressed the issue, some courts have questioned whether standards higher than preponderance can withstand constitutional scrutiny. See, e.g., Hillv. Schofield, 608 F.3d 1272 (11th Cir.2010) (striking statutory "beyond a reasonable doubt” burden of capital defendant to prove Atkins claim because “not constitutionally permissible to expect an offender who asserts mental retardation to bear the highest risk that our criminal justice system can impose of the erroneous conclusion that he is not mentally retarded”), vacated and rehearing granted, 625 F.3d 1313 (11th Cir.2010): Pruitt v. State, 834 N.E.2d 90, 102 (Ind.2005) (statutory "clear and convincing evidence” burden of proof unconstitutional; capital defendant must prove Atkins claim by preponderance of evidence) (citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (Oklahoma law presuming defendant is competent to stand trial unless he proves incompetence by clear and convincing evidence violates due process)). In Hill, after rehearing, the Eleventh Circuit en banc affirmed the district court's denial of appellant’s constitutional challenge to Georgia’s "beyond a reasonable doubt” burden of proof without reaching the merits of the issue. Hill v. Humphrey, 662 F.3d 1335, 1360 (11th Cir.2011) ("[The Antiterrorism and Effective Death Penalty Act of 1996] requires us to affirm the denial of Hill’s § 2254 petition. We do not decide whether Georgia's burden of proof is constitutionally permissible, but only that no decision of the [U.S.] Supreme Court clearly establishes that it is unconstitutional.”).
. The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor in accordance with 42 Pa.C.S. § 971 l(i).
. In several states, the statutory source of the procedure for adjudicating a mental retardation claim pre-dates the U.S. Supreme Court's decision in Atkins. These states exercised their legislative prerogative to deem mentally retarded capital defendants ineligible for the death penalty, and indeed, the Atkins Court cited such existing statutes in support of its finding of a "national consensus" against execution of the mentally retarded. See Atkins v. Virginia, 536 U.S. 304, 314-16, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Two of these jurisdictions, Colorado and Maryland, relocated and amended the statutes referenced by the High Court in Atkins after the decision of the High Court.
. No death penalty. Alaska Stat. § 12.55.125 (1978).
. No death penalty. Haw.Rev.Stat. § 706-656 (1986).
. Death penalty abolished effective July 1, 2011. 725 III. Comp. Stat. 5/119-1 (2011). Governor Quinn has commuted all existing death sentences to life without parole and promised to do the same for any death sentences imposed until statutory abolition goes into effect.
. No death penalty. Iowa Code §§ 707.2, 902.1 (1976).
. No death penalty. 17-A Me.Rev.Stat. § 1251 (1976).
. No death penalty since 1984. Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984) (1982 death penalty statute burdened right to trial and right not to plead guilty, and thus held unconstitutional). No Atkins procedure devised.
. No death penalty. Mich. Comp. Laws § 750.316 (1980).
. No death penalty. Minn.Stat. § 609.185 (1963).
. No Atkins procedure devised.
. Death penalty was abolished by statute effective December 17, 2007. N.J. Stat. § 2CH1-3 (2007). Persons sentenced to death prior to December 17, 2007, are resen-tenced to life imprisonment without possibility of parole on motion to the sentencing court and waiver of any further appeals related to sentencing. N.J. Stat. § 2C:ll-3b (2007).
. No Atkins procedure devised.
. Death penalty was abolished by statute effective July 1, 2009. N.M. Law 2009, Ch. 11, § 5. New statute applies to crimes committed on or after July 1, 2009. N.M. Law 2009, Ch. 11, § 6.
. No death penalty since 2004. People v. LaValle, 3 N.Y.3d 88, 783 N.Y.S.2d 485, 817 N.E.2d 341 (2004) (mandatory jury instruc
. No death penalty. N.D. Cent.Code §§ 12.1-16-01, 12.1-32-01 (1973).
. No Atkins procedure devised.
. Death penalty was abolished by statute effective May 9, 1984. R.I. Gen. Laws § 11-23-2 (1984).
. No death penalty. Vt. Stat. tit. 13, § 2303 (1965). But see Vt. Stat. tit. 13, § 3401 (death penalty for treason). No Atkins procedure devised.
. No death penalty. W. Va.Code §§ 61-2-2, 61-11-2 (1965).
. No death penalty. Wis. Stat. §§ 940.01, 939.50(3)(a) (1977).
. No Atkins procedure devised. But see Wyo. Stat. § 7-11-302 (punishment of person with "mental deficiency”); § 7-11-301 (mental deficiency means defect attributable to intellectual disability, brain damage, and cognitive disabilities).