Com. v. Kelly

• Decision Date: 21 January 1999
• Citation: 555 Pa. 382,724 A.2d 909
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Richard KELLY, Appellee. Commonwealth of Pennsylvania, Appellant, v. Edward Domes, Appellee.
• Court: Pennsylvania Supreme Court

555 Pa. 382

724 A.2d 909

COMMONWEALTH of Pennsylvania, Appellant, v. Richard KELLY, Appellee.

Commonwealth of Pennsylvania, Appellant, v. Edward Domes, Appellee.

Supreme Court of Pennsylvania.

Argued September 15, 1997.

Decided January 21, 1999.

Robert E. Colville, Claire C. Capristo, Sandra Preuhs, Pittsburgh, for the Com.

Robert A. Crisanti, Pittsburgh, for Richard Kelly.

John Pushinsky, Pittsburgh, for Edward Domes.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

This Court granted review solely to determine whether the Superior Court erred in reversing appellees' convictions for first degree murder on the ground that an instruction to the jury that tracked the language of Section Eighteen of the Pennsylvania Uniform Firearms Act (18 Pa.C.S. § 6104)¹ created an impermissible mandatory presumption with respect to a material element of the crime which could not be deemed harmless error. For the reasons that follow, we affirm the order of the Superior Court and remand for a new trial.

On September 6, 1994, after a joint trial before a jury, appellees were found guilty of first-degree murder. The trial judge entered judgment on the verdict and sentenced appellees to the mandatory sentence of life in prison. Subsequently, new counsel was appointed for each appellee, and post-trial motions were filed alleging, inter alia, that the trial court's instruction on intent, which substantially conformed to the language of 18 Pa.C.S. § 6104, had created a mandatory presumption in favor of the Commonwealth with respect to a material element of the crime, thereby violating both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article One, Section Nine of the Pennsylvania Constitution.² The trial court rejected the post-trial motions.

Subsequently, appellees separately filed timely Notices of Appeal to the Superior Court. The Superior Court reversed the trial court's denial of post-trial motions, determining that the instruction tracking 18 Pa.C.S. § 6104 was erroneous and constituted prejudicial error necessitating a new trial. The Commonwealth filed timely Petitions for Allowance of Appeal. This Court granted further review and ordered these matters consolidated for purposes of appeal.

The evidence adduced at trial establishes that on June 26, 1993, appellees were visiting the apartment of Monica Dreher in the city of Clairton, Allegheny County. Various members of the Dreher family and other persons were present. Carl Bracey, the victim, arrived at the apartment with Nellie Dreher, his fiancée, and began to argue with appellee Edward Domes.³ At this point, Bracey and his fiancée left the apartment, followed closely by appellees. Shortly thereafter, an altercation erupted between the victim and appellee Domes. According to the testimony of Nellie Dreher, the victim was on top of Domes when appellee Kelly pulled out a handgun, pointed it at the victim's neck, and ordered him off of appellee. The victim complied, asked if he was going to be shot, then turned to run from the scene. At that point, Domes brandished his own handgun, and he and Kelly both fired in the victim's direction. One of the bullets struck the victim in the back of the neck, and the victim fell to the ground. Police did not find the murder weapon, and no determination was made as to which of the two assailants fired the fatal shot. The Commonwealth adduced evidence at trial demonstrating that neither defendant had a license to carry a concealed firearm.

The Commonwealth contends that the Superior Court erred first by concluding that the instruction at issue created an impermissible mandatory presumption concerning the element of intent, and second by determining that the purported error did not amount to harmless error. We disagree in both respects and affirm the Order of the Superior Court remanding this matter for a new trial.

The Due Process Clause of the Fourteenth Amendment 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. Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985)(citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). This bedrock, axiomatic and elementary constitutional principle prohibits the state from using evidentiary presumptions in a jury charge that have the effect of improperly relieving the state of its burden of persuasion beyond a reasonable doubt of every essential element of a crime charged. The first question before this Court then is whether the challenged jury instruction had the effect of relieving the Commonwealth of its burden of proof on the critical question of mens rea by creating a mandatory presumption of the actor's intent upon proof that appellees used or attempted to use unlicensed firearms while committing or attempting to commit a crime of violence.

The analysis is straightforward. "The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes." Francis v. Franklin, 471 U.S. at 314, 105 S.Ct. 1965 (quoting Speiser v. Randall, 357 U.S. 513, 514, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)). This Court must determine whether the challenged portion of the instruction creates a mandatory presumption, or merely a permissive inference. A mandatory presumption instructs the jury that it must infer the presumed fact if the state proves certain predicate facts. On the other hand, a permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the jury to draw that conclusion. In determining whether a mandatory presumption or a permissive inference has been created, a reviewing court must assess the challenged instruction from the viewpoint of a reasonable juror and declare it to create a "mandatory presumption" if such a juror could reasonably believe that proof of the predicate facts automatically shifts the burden of persuasion on the relevant element to the defendant. See id., 471 U.S. at 315, 105 S.Ct. 1965.

A mandatory presumption is the more troublesome of the two evidentiary devices, "for it may affect not only the strength of the `no reasonable doubt' burden but also the placement of that burden; it tells the trier that he or she must find the elemental fact upon proof of the basic fact, at least until the defendant has come forward with some evidence to rebut the presumed connection between the two facts." Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)(emphasis added). If a jury instruction contains a mandatory presumption, a reviewing court must examine the presumption on its face to determine the extent to which the basic and elemental facts truly coincide. If these facts do not coincide, then the presumption will be deemed violative of due process, regardless of whether an independent evaluation of the facts presented by the state supports the mandatory inference. See id. If, on the other hand, a jury instruction contains a permissive inference, then the totality of evidence in the record other than the presumption will be germane in an analysis of the inference's constitutional validity. See id.

Thus, the first step for this Court is to decide whether the instruction given by the trial court created either a mandatory presumption or a permissive inference. For the reasons that follow, we conclude that the instruction created a mandatory presumption. The instruction at issue stated:

[This is] the trial of a person for committing or attempting to commit a crime of violence. If you believe that he was armed with a firearm or if you believe that a firearm was used or attempted to be used and that person had no license to carry the same that shall be evidence of his intention to commit said crime of violence.

See Trial Trans. at 432 (emphasis added). Based on this language, a reasonable juror might well conclude that mere proof of appellees' possession of unlicensed firearms, and nothing more, automatically entailed conclusive proof that appellees had the requisite intent to commit a crime of violence, in this case, murder.⁴

Notwithstanding this language, the Commonwealth submits that instructing a jury that a fact "shall be evidence" merely suggests to them that they may accept or reject this piece of evidence in the same way that they may accept or reject any other piece of evidence. In other words, the claim is that although the instruction declared the unlicensed weapon to be evidence of intent, the jury still had the discretion to determine whether to credit the evidence and to determine what conclusions to draw from such evidence. The Commonwealth's argument overlooks the fact that the instruction specifically states that proof of the unlicensed weapon "shall be evidence of his intention to commit said crime of violence." With this final phrase, the instruction is cured of the putative ambiguity upon which the Commonwealth bases its argument.

Moreover, any ambiguity that arguably inhered in the language of the instruction at issue was negated by the language that the trial court employed to convey other instructions to the jury. In delivering its instruction on the use of a deadly weapon on a vital part of the victim's body, the trial court stated:

When deciding whether the defendant had a specific intent to kill you should consider all of the evidence regarding his words and conduct and the attending circumstances that may show his state of mind. If you believe that the defendant or an accomplice intentionally used a deadly weapon on a vital part of the victim's body you may regard that as an item of circumstantial evidence from which you may if you choose infer that the defendant or an accomplice had the

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