Com. v. Fahy

• Decision Date: 01 July 1994
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Henry FAHY, Appellant.
• Court: Pennsylvania Supreme Court

Page 199

645 A.2d 199

537 Pa. 533

COMMONWEALTH of Pennsylvania, Appellee, v. Henry FAHY, Appellant.

Supreme Court of Pennsylvania.

Submitted June 18, 1993.

Decided July 1, 1994.

Louis Natali, Norris E. Gelman, Philadelphia, for appellant.

Catherine Marshall, Chief, Appeals Unit, Hugh J. Burns, Jr., Asst. District Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

The sole issue raised in this direct appeal from the denial of the Appellant's petition filed pursuant to the Post Conviction Relief Act (the "PCRA") 42 Pa.C.S. § 9541, et seq., is whether the Appellant is entitled to a new sentencing hearing because his trial counsel failed to object to a jury instruction regarding the aggravating circumstance of the killing of another committed by means of torture which did not provide a definition of the term "torture." For the reasons set forth below, we find that he is not so entitled and we affirm the ruling of the PCRA court upholding the Appellant's sentence of death.

Following a 1983 jury trial in the Philadelphia County Court of Common Pleas, Appellant was convicted of first-degree murder, rape, burglary and possession of an instrument of crime and sentenced to death for his killing and torture of twelve-year-old Nicky Caserta in 1981. ¹

Pursuant to 42 Pa.C.S.A. § 9711(d), the jury found three aggravating circumstances: a slaying during the perpetration of a felony, ² a significant history of convictions for violent felonies ³ and a homicide committed by means of torture. ⁴ Pursuant to 42 Pa.C.S.A. § 9711(e), the jury also found two mitigating circumstances: extreme mental or emotional disturbance, ⁵ and impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. ⁶ Post-verdict motions were heard and denied.

On direct appeal, this Court sustained Appellant's conviction and judgment of sentence and found that the evidence sufficiently supported his conviction and the jury's finding of aggravating circumstances. ⁷ Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986). Appellant filed a pro se Post Conviction Hearing Act (PCHA) petition in 1987 alleging several errors. Relief was denied without prejudice for procedural errors. In 1989, counsel was appointed to file a supplemental PCHA petition on a prior rape conviction but not for the murder conviction. The Governor signed Appellant's death warrant in November 1991, scheduling the execution for the week of January 13, 1992. On January 7 1992, however, Appellant retained counsel who in turn filed a Petition for Stay of Execution and Appointment of Counsel with this Court. Specifically, counsel asserted, as the basis for the stay, that the applicability of the finding of torture in this case was erroneous.

On January 13, 1992, this Court granted the Appellant's petition and remanded the case back to the Philadelphia County Court of Common Pleas for reconsideration of the torture issue pursuant to the standards articulated in Commonwealth v. Caldwell, 516 Pa. 441, 532 A.2d 813 (1987). At the PCRA hearing held pursuant to the remand order, Appellant argued that the death penalty was arbitrarily imposed because the jury improperly found the aggravating circumstance of torture because the trial court failed to define "torture" for the jury and that trial counsel was ineffective for failing to object to the inadequate charge in that regard. The PCRA court rejected Appellant's argument and affirmed the sentence of death on the basis that this Court, pursuant to 42 Pa.C.S.A. § 9711(h), had already determined that the evidence was sufficient with regard to the aggravating circumstance of torture. Commonwealth v. Fahy, Nos. 2283-2289 (Phila.C.C.P. Dec. 8, 1992).

The sole issue now before this Court is whether the PCRA court erred in affirming the sentence of death because Appellant's trial counsel did not request that the trial court define "torture" as an aggravating circumstance which requires a specific intent to commit torture separate from the specific intent to commit murder. The trial judge's jury charge in this case informed the jurors that a list of possible aggravating circumstances was included on the verdict sheet on which they were to indicate whether they believed such circumstances applied to the Appellant's actions. No definition of "torture" was given by the trial judge, nor was a definition requested by defense counsel. An instruction that specific intent to torture the victim was needed in order to properly find torture as an aggravating circumstance was not required by this Court at the time. ⁸ Without such an instruction, Appellant claims that the instruction was prejudicially deficient and violative of his rights to the due process of law. He also claims that trial counsel was ineffective for failing to object to such a deficient instruction. For the reasons set forth below, we affirm the ruling of the PCRA court upholding the Appellant's sentence of death.

Section 9711(d)(8) of the Sentencing Code provides that the death penalty may be imposed where the jury finds that the "offense was committed by means of torture." 42 Pa.C.S. Section 9711(d)(8). This case illustrates perhaps the clearest example of a factual situation that the legislature intended to serve as an aggravating circumstance of torture sufficient to impose the death penalty. In that regard, it is precisely because the facts of this case are so egregious that we are able to conclude that there was no error in trial counsel's failure to request a definition of the term "torture" for the jury because, pursuant to any conceivable definition of the term, Nicky Caserta was tortured to her death.

Indeed, the evidence produced at trial showed that the final hours of Nicky Caserta's life were marked by unspeakable horrors, inflicted to satiate the sadistic appetite of the Appellant. She was beaten, raped, mutilated, hung, choked, kicked, strangled and, finally, stabbed multiple times until life finally ebbed from her small body. ⁹ From a vantage point across the street, the Appellant watched as Nicky's mother left for work on the morning of January 9, 1981. He proceeded across the street and was let in the Caserta home by Nicky. The Appellant was well known to Nicky because he and Nicky's aunt were living together nearby. The Appellant asked Nicky to go upstairs and look for a pair of pliers for him. As soon as Nicky went up the steps, he locked the front door and followed her. Appellant then seized her, stuffed tissue in her mouth, wrapped a sweater around her face, and forced her to disrobe. Then, he raped her vaginally and anally. The injuries indicate that Appellant also violated his victim with some object that ripped the tissue of her genitals from the interior of the vagina to her rectum. Appellant then allowed the victim to dress, creating a cruelly false impression that the ordeal had ended. When Nicky, in a state of dazed terror, put her parochial school uniform on backwards, Appellant became enraged. He grabbed her and dragged her downstairs to the basement with his free hand around her mouth to stifle her cries. In the basement, while chanting, "Die, bitch," Appellant tied a series of ligatures around the girl's throat and watched her struggle for breath. He repeatedly choked Nicky to a certain point and then released his hold, allowing her to fight for breath again. At one point he apparently suspended the girl from a rafter by her neck. Finally, apparently having tired of this depravity, Appellant secured a kitchen knife and stabbed Nicky 18 times in the chest, to her death, with such force that he broke off part of the blade finally causing her death.

Appellant alleges that his counsel was ineffective for failing to request a definition of the term "torture" because if the jury had been given and guided by such an instruction, it might not have found that he tortured his victim. Essentially, Appellant's claim amounts merely to the argument that his trial counsel was ineffective for failing to assert that the evidence was insufficient to support the jury's finding of torture. We have long maintained that a criminal defendant's trial counsel cannot be held ineffective for failing to assert a meritless claim. Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119 (1993). Here, when this Court reviewed Appellant's direct appeal for the sufficiency of the evidence supporting the finding of the aggravating circumstance of torture and sustained Appellant's conviction and judgment of the sentence of death, we found, as a matter of law, that the jury's finding of torture was sufficiently supported by the trial evidence. Fahy, supra. See also 42 Pa.C.S.A. § 9711(h)(3)(ii) ("[t]he Supreme Court shall affirm the sentence of death unless it determines that the evidence fails to support the finding of at least one aggravating circumstance...."). Because of this Court's specific review and verification of the sufficiency of the evidence, Appellant's ineffectiveness claim fails because there is utterly no merit to his underlying claim that counsel was ineffective for failing to assert that the evidence supporting the jury's finding of torture was legally insufficient.

Further, this Court has previously found that the term "torture" as an aggravating circumstance is not constitutionally vague and that its meaning is "a matter of common knowledge." Nelson, supra; Commonwealth v. Pursell, 508 Pa. 212, 238, 495 A.2d 183, 196 (1985). In Pursell, this Court held that the general meaning of "torture" was the "infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious, or cruel manifesting exceptional depravity." 508 Pa. at 239, 495 A.2d at 196. Nevertheless, despite the apparent unambiguity of the term "torture," the Appellant...