Com. v. Chambers

Decision Date20 November 1996
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Karl S. CHAMBERS, Appellant.
CourtPennsylvania Supreme Court

H. Stanley Rebert, John W. Thompson, Jr., York, Robert A. Graci, Attorney General's Office, Harrisburg, for Com.



FLAHERTY, Chief Justice.

Appellant, Karl S. Chambers, seeks relief from his second sentence of death. In his original appeal, this court affirmed his convictions of robbery and murder of the first degree but vacated his death sentence and remanded for resentencing due to the prosecutor's improper argument during the penalty phase of the trial. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991). A new jury again imposed the death penalty. This appeal, therefore, involves only claims of error in the penalty phase.

In appellant's original penalty hearing, the prosecutor stated in closing argument: "Karl Chambers has taken a life.... As the Bible says, 'and the murderer shall be put to death.' " We held that the argument exceeded the bounds of permissible oratorical flair as it advocated to the jury that an independent source of law existed for imposing the death penalty on appellant. Chambers, 528 Pa. at 586, 599 A.2d at 644. We then held that "reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se." Id. The verdict of death which followed the improper argument might have been the product of passion, prejudice, or an arbitrary factor, so 42 Pa.C.S. § 9711(h)(4) required that appellant's death sentence be vacated and that he be awarded a new sentencing hearing. Id.

On remand, a new jury was selected on May 16 and 17, 1994. The resentencing hearing commenced on May 31, ending with the court's charge on June 3, 1994. The jury returned a verdict of death the same day. This direct appeal is pursuant to 42 Pa.C.S. § 9711(h)(1).

Appellant's first challenge to his death sentence is a two-pronged allegation of unconstitutionality. His initial argument is that "retroactive" application of 42 Pa.C.S. § 9711(h)(4) to his case offends his right to due process and equal protection. Appellant was convicted of crimes occurring on February 1, 1986. At that time, this court, in its automatic review of a death sentence, had two options: "the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence." 42 Pa.C.S. § 9711(h)(2), repealed effective December 21, 1988. In 1988, the statute was amended to read as follows:

... the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings.... If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances are supported by sufficient evidence or because the sentence of death is disproportionate to the penalty imposed in similar cases, then it shall remand for the imposition of a life imprisonment sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing....

42 Pa.C.S. § 9711(h)(2) and (4), as amended 1988, Dec. 21, P.L. 1862, No. 179, § 2, imd. effective. The legislation provided that the amendment "shall apply to all criminal offenses committed on or after the effective date of this act and to all criminal cases or appeals pending on the effective date of this act." Act of 1988, Dec. 21, P.L. 1862, No. 179, § 3. Appellant recognizes that this language includes his case, and acknowledges that Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), held that the statute was constitutionally permissible.

He attempts to distinguish his case from Young by characterizing the reason for Young's remand as procedural error but his own as "prosecutorial misconduct," attempting to bring his case within the ambit of Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). Smith held that intentional prosecutorial misconduct, deliberately undertaken to deny the defendant a fair trial, required his discharge on double jeopardy grounds. The intentional prosecutorial misconduct in Smith descended to a level which "violate[d] all principles of justice and fairness embodied in the Pennsylvania Constitution's double jeopardy clause." Id. at 183, 615 A.2d at 324.

We do not find Smith applicable to this case. Our opinion in appellant's prior appeal did not characterize the improper Commonwealth argument as intentional prosecutorial misconduct, but rather as overstepping the "bounds of oratorical flair." Chambers at 584, 599 A.2d at 643. It was a violation of a rule first announced in that decision. The biblical reference was described by Mr. Justice McDermott in his dissenting opinion as an "isolated comment" in "the last sentence of a brief closing. This was not emotional oratory calling for divinely motivated retribution; rather it was a reference to one of the texts from which our social system has evolved." Chambers at 587, 599 A.2d at 644. It certainly cannot be described as violating "all principles of justice and fairness embodied in the ... double jeopardy clause."

Appellant's reliance on Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981), is likewise misplaced. Story was tried, convicted, and sentenced to death under the provisions of a statute later held to be unconstitutional in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977). Everyone who had been sentenced to death under the statute was uniformly resentenced to a sentence of life imprisonment. Story's case was on appeal at the time of the Moody decision; the result of Story's appeal was reversal of his conviction due to trial error and the grant of a new trial. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). His second trial resulted in a sentence of death under a new, constitutional death penalty statute. In his second appeal, this court vacated his sentence of death and imposed a life sentence, holding that application of the new death penalty statute in Story's second trial violated equal protection and due process. This was so because everyone sentenced to death under the prior, unconstitutional statute had automatically received a sentence of life imprisonment, even those who had been unsuccessful on appeal. To impose a new death sentence on Story, who had been successful on appeal, would have placed him in a worse position than everyone else sentenced under the prior statute. Story, 497 Pa. at 281, 440 A.2d at 491.

Appellant, by contrast, did not have his death sentence vacated because the prior sentencing statute was unconstitutional, but because of trial error. It is certainly not the case that everyone else sentenced under this statute prior to its amendment in 1988 was resentenced to a term of life imprisonment. Moreover, the Story court relied heavily on the presumption that statutes are not to have retroactive effect unless the legislature "clearly and manifestly" indicates a contrary intention, and the statute at issue in Story manifested no such intention. Id. at 276-77 440 A.2d at 489-90. The amendment affecting appellant, on the other hand, expressly stated that it should apply "to all criminal cases and appeals pending on the effective date of this act," December 21, 1988. We therefore hold that this issue is controlled by Commonwealth v. Young, supra, and that application of the amended procedure of 42 Pa.C.S. § 9711(h) did not deprive appellant of any constitutional right.

Appellant's second allegation of unconstitutionality is that he was denied due process and equal protection by virtue of the trial court's confusion as to the aggravating circumstance applied in his case: "[t]he defendant committed a killing while in the perpetration of a felony." 42 Pa.C.S. § 9711(d)(6). The court instructed the jury that it must be satisfied beyond a reasonable doubt that appellant had committed the robbery in the perpetration of the killing. Appellant argues that this is clearly not the law: "The law states specifically that the jury must find beyond a reasonable doubt that the defendant committed a killing during the commission of a felony--not the other way around." (Emphasis in appellant's brief).

The trial court has broad discretion in phrasing jury instructions, and may choose its own wording as long as the law is clearly, adequately and accurately presented to the jury for its consideration. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990); Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). The reviewing court must consider the entire charge, not merely isolated fragments. Id. at 582, 470 A.2d at 70. We have examined the jury instructions in their entirety, including answers to questions submitted by the jury during its deliberations. Though the instructions on killing during the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), are lengthy and repetitive, at times quoting the statute, the charge considered as a whole is an accurate statement of the law. The distinction between killing during a robbery and robbing during a killing is semantical.

In answering the jury's question, "Because the Defendant has been found guilty of first degree murder, are we compelled to accept the fact that the aggravating circumstances already exist? Are they a given?", the court stated:

The answer to that, ladies and gentlemen, is, No. You must accept the fact that the Defendant has been convicted of murder in the first degree. That is not before you because that's why we are having only the sentencing here, death or life.

However, the Commonwealth has presented the position that the killing was during the commission of a felony, and the felony in ...

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