Com. v. Jasper

• Decision Date: 21 May 1992
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Alfred JASPER, Appellant.
• Court: Pennsylvania Supreme Court

Page 949

610 A.2d 949

531 Pa. 1

COMMONWEALTH of Pennsylvania, Appellee, v. Alfred JASPER, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 3, 1991.

Decided May 21, 1992.

[531 Pa. 5] Marilyn J. Gelb, Philadelphia, for appellant.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Div., Harriet R. Brumberg, Philadelphia, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

In this appeal, we review a sentence of death imposed upon the Appellant, Alfred Jasper, who was convicted in a jury trial of one count each of murder in the first degree, ¹ criminal conspiracy, ² and possession of an instrument of crime ³ in the shooting death of Gregory Boykin. The penalty jury found three aggravating circumstances and no mitigating circumstances. The aggravating circumstances were number 9 (significant history of felony convictions involving the use or threat of violence to the person); number 10 (conviction of another offense for which a life sentence or death was possible; and number 11 (conviction of another murder committed either before or at the time of the offense). ⁴ Four allegations of error are asserted for our review.

In accordance with our responsibility in cases in which the death penalty has been imposed by the finder of fact, this Court has the independent obligation to review the sufficiency of the evidence supporting the conviction. 42 Pa.C.S. § 9711(h). Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The test to be applied is whether, viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

The facts indicate that Appellant had argued with the victim in a Philadelphia bar. Appellant and four other persons then drove around for a short time, ultimately returning to the bar where Boykin was induced to approach the automobile. As Boykin bent down to look into a window, he was shot once, staggered away, but was shot a second time and died in the hospital of two gun shots shortly thereafter. ⁵ Two eyewitnesses who were friends of the Appellant positively identified Jasper as the shooter and so testified at trial. (T.T., 3/15/88, pp. 100-115; 3/16/88, pp. 320-331). This evidence unquestionably meets the prescribed standard and would support the conviction for murder of the first degree.

A. Challenge to Jury Selection

Appellant first asserts that the trial court erred in preventing him from interrogating venirepersons after they had expressed unbending opposition to capital punishment and stated that they would be unwilling and unable to impose the death sentence under any circumstances and irrespective of their obligation to follow the court's instructions. His argument is that somehow the jurors might have been "rehabilitated" and that he should have been afforded an opportunity on voir dire to accomplish that purpose before they were excused.

The trial record shows that the following venirepersons were excused for cause after questioning by the prosecution: Sharon Ellison (firmly opposed to the death penalty on religious grounds, T.T., 3/9/88, pp. 282-285); Bernice Bolden (unalterable religious opposition to the death penalty, T.T., 3/11/88, pp. 530-533); Doris Reimer (fixed opposition to capital punishment, T.T., 3/11/88, pp. 530-533): John McTanney (fixed opposition to death, T.T., 3/11/88, pp. 535-537); Mary Magee ("personal beliefs too strong" to impose death, T.T., 3/11/88, p. 631); Sophia Skiba (a nurse dedicated to preserving life and would not vote to take it, T.T., 3/11/88, pp. 645-647); Danielle Levin ("absolutely" would not impose a death sentence, T.T., 3/14/88, pp. 692-693); and Diana Freeman (distrust of police so strong that she would not follow the court's instructions, T.T., 3/10/88, pp. 364-365).

Appellant concludes that the exclusion for cause of prospective jurors from a panel because of their expressed views on capital punishment violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968). The "Witherspoon doctrine" holds that jurors cannot be challenged for cause based on their general opposition to the death penalty; it must be made unmistakably clear that they would be unable to set aside their personal beliefs in deference to the law as required by their oath as jurors. As noted in Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987), Witherspoon has been refined by the United States Supreme Court.

In its recent examination of the Witherspoon standard, the United States Supreme Court chose the test set forth in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), as preferable to the original standards of Witherspoon. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The Adams test is whether the juror's views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Adams, supra, 448 U.S. at 45, 100 S.Ct. at 2526.

(511 Pa. at 311, 513 A.2d at 379). See also, Commonwealth v. Lewis, 523 Pa. 466, 567 A.2d 1376 (1989); and Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985).

The rule, therefore, is that venirepersons who are unable to perform their duties impartially and faithfully at the sentencing stage of the trial may be excused for cause. Lewis, supra, and Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990), incorporating Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). This includes prospective jurors who clearly express such antagonism to testimony by police that they will be prejudiced in the case.

In her opinion on post-trial motions, the trial judge summarized her decisions as follows (Trial court opinion, p. 17):

We made each judgment to exclude these prospective jurors only after carefully and patiently listening to the views expressed by each potential juror. We listened and watched their demeanor on the witness stand and made our judgment on credibility. After having done so, there was no necessity or reason to permit further repetitious inquiry by defense counsel in a vain hope that somehow one or more jurors would throw away or bend long-held, fixed views on such a passionate question. Any juror who claimed that by the miracle of additional questioning by defense counsel he or she had been "rehabilitated" would have been absurd. In any event, any professed retreat from the already expressed views would have been wholly unworthy of belief and, further, would have served no purpose other than allowing the Commonwealth to raise another challenge for cause. It is useless to engage in such colloquies once a juror has made it abundantly clear that his resolute opposition to capital punishment is fixed in all cases.

It must be noted that the Commonwealth, as the party seeking to remove the prospective juror for cause, has the burden of establishing the reason for removal. If the Commonwealth's questions are sufficiently precise and on point and the venireperson's answers are certain and unequivocal, it is certainly possible for the court to determine that cause has been shown such that further questioning is unnecessary. A trial judge has wide latitude in supervising the manner in which voir dire is conducted, including the power to prevent further voir dire when responses to death qualification questions prove that additional inquiry will be fruitless. ⁶ We are satisfied that the procedure and decisions of the court in excusing potential jurors was constitutionally firm in all respects. Appellant's challenge on this point is rejected.

B. Insufficient Jury Instructions on Mitigating Circumstances

Appellant argues that the trial court erred at the penalty stage because it did not "offer guidance to the jury as to how to consider" the defense's evidence in mitigation.

As the factual basis of his assertion, he targets two circumstances in mitigation: evidence of good conduct in jail while awaiting this trial and participation in a leadership role in a class action prisoner litigation aimed at eliminating allegedly bad conditions for segregated prisoners. He readily admits, however, that both pieces of evidence were introduced without limitation to the penalty jury. His repetitious complaint, nevertheless, is that in "the case instantly (sic), the lower court allowed the evidence, but offered no guidance to the jury as to how it was to consider the evidence." (Appellant's Brief, p. 27).

His more specific meaning is that these two mitigating considerations are not enumerated as such, but arise generally under 42 Pa.C.S. § 9711(e)(8) (any other evidence of mitigation). He argues that the court was remiss in not instructing the jury that, although unenumerated, these considerations should have been given equal weight and quality as other mitigating circumstances.

He concludes that where "the proffered evidence is offered in mitigation of the penalty of death, the Supreme Court has consistently condemned the erection of barriers to the jury's full consideration of mitigating evidence." (Appellant's Brief, p. 30). In support of his claim, he marshalls the standard array of federal cases which embody the rules applicable to consideration...