Com. v. Young

• Citation: 637 A.2d 1313,536 Pa. 57
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Louis YOUNG a/k/a Yusuf Ali, Appellant. . Re
• Decision Date: 05 November 1993
• Court: United States State Supreme Court of Pennsylvania

Page 1313

637 A.2d 1313

536 Pa. 57

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph Louis YOUNG a/k/a Yusuf Ali, Appellant.

Supreme Court of Pennsylvania.

Reargued Dec. 9, 1992.

Decided Nov. 5, 1993.

Stephen G. Heckman, Norristown, for appellant.

Hugh J. Burns, Philadelphia Dist. Atty., amicus curiae.

Mary MacNeil Killinger, Asst. Dist. Atty., Patricia E. Coonahan, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

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

OPINION

MONTEMURO, Justice.

This is a direct appeal after remand from the judgment of sentence of death imposed by the Court of Common Pleas of Montgomery County following a resentencing hearing.

On July 10, 1987 a jury convicted Joseph Louis Young of two counts of murder in the first degree for the stabbing deaths of Dr. Ismail al Faruqui and his wife, Lois al Faruqui, in their Wyncote home. ¹ A separate sentencing hearing was held and the jury returned a verdict of death on each of the two murder convictions. After denial of post-trial motions and formal sentencing, Young filed a timely appeal with this court. We affirmed the convictions, but remanded for resentencing pursuant to 42 Pa.Cons.Stat.Ann. § 9711(h)(4) (Purdon 1992) ² because the verdict slip provided to the jury in the original sentencing hearing violated the holding of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). At the resentencing hearing the jury again returned a verdict of death for each murder conviction. They specifically found the existence of four aggravating circumstances and one mitigating circumstance, and determined that the aggravating circumstances outweighed the mitigating circumstance. ³ The sentencing court subsequently denied all post-trial motions and formally imposed the sentence of death. This direct appeal followed. On appeal, Young raises a number of issues which we will address seriatim.

A. Federal and State Ex Post Facto Claims

Appellant raises the issue of whether a statute which was passed after appellant's crime and which required a remand for a resentencing hearing in appellant's case violates the Ex Post Facto Clause of the United States Constitution or the Pennsylvania Constitution. We hold that it does not.

Young committed the instant murders on May 27, 1986. At that time, section 1102 of the Crimes Codes, 18 Pa.Cons.Stat.Ann. § 101 et seq. (Purdon 1983), fixed the punishment for first-degree murder at death or life imprisonment. That substantive law continues in effect.

However, the law which specifies the procedure to be followed by this court in reviewing a death sentence has been changed since Young's conviction, and it is the application of the amended procedure to appellant's case which serves as the basis for his claim. At the time Young was convicted and originally sentenced to death, § 9711(h) of the Sentencing Code, 42 Pa.Cons.Stat.Ann. § 9701 et seq., provided for the automatic imposition of a sentence of life imprisonment upon remand where a death sentence was vacated but the underlying conviction affirmed. ⁴ While Young's appeal from the death sentence was pending, the Legislature amended § 9711(h). The amendment allowed the court to remand for a new sentencing hearing rather than automatic imposition of a life sentence, except where the sentence was vacated either because the sentence was disproportionate or the evidence insufficient to support any aggravating circumstances. ⁵ This meant that a defendant like Young, who had his original death sentence vacated for a Mills violation, could again be exposed to a possible death sentence at a resentencing hearing. The comment following the statute expressly stated that the amendment applied to cases then on appeal. ⁶ Since Young's original appeal was pending on December 21, 1988, the date on which the amendment became effective, it clearly applied to his case and we correctly remanded for a resentencing hearing.

The prohibition against the enactment of ex post facto laws dates back to the earliest days of our nation when it was written into the Constitution of the United States and the Pennsylvania Constitution. ⁷ In 1798, the Supreme Court defined the meaning of an ex post facto law as:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798) (opinion of Chase, J.) (emphasis in original).

As recently as 1990, in Collins v. Youngblood, 497 U.S. 37, 40-51, 110 S.Ct. 2715, 2718-2724, 111 L.Ed.2d 30, 38-44 (1990), the Court reaffirmed this definition of the term "ex post facto" and held that a more expansive definition is unjustified. It noted that the Constitution does not prohibit every retrospective law that alters the situation of a party to his disadvantage. Id. at 50, 110 S.Ct. at 2723, 111 L.Ed.2d at 43-44. Rather, only those retrospective laws encompassed by the Calder categories violate the prohibition against ex post facto legislation. Id.

Appellant argues that the statutory amendment, as applied to him, constitutes an increase in the quantum of punishment for the crime of first-degree murder. In addition, he contends that retroactive application of the amendment has deprived him of the right to have his death sentence automatically modified to life imprisonment and the right not to face the possibility of a death sentence. He maintains that this change in the law constitutes a deprivation of a "substantial right" under law existing at the time of the crime and, as such, is constitutionally impermissible. Neither of these contentions has merit.

At the time appellant committed these crimes, the law provided for imposition of either the death penalty or a sentence of life imprisonment upon conviction. 18 Pa.Cons.Stat.Ann. § 1102. Following enactment of the instant amendment, the potential punishment for first-degree murder remained the same. Therefore, appellant faced exactly the same potential punishment at both his 1987 and 1990 sentencing hearings. While the statutory change did allow the Commonwealth to seek once again the death penalty, thereby eliminating a procedural windfall, it did not increase the potential punishment "that the law annexed to the crime when committed." Thus, the core concern of the Ex Post Facto Clause is not implicated.

Nor has appellant lost any "substantial right" because his case was remanded for resentencing. In Collins, the Supreme Court noted that the reference in prior cases to "substantial protections" and "personal rights" had imported confusion into the interpretation of the Ex Post Facto Clause, Id. at 45, 110 S.Ct. at 2720, 111 L.Ed.2d at 40, and should not be read so as to enlarge the Calder categories beyond their meaning at the time of the adoption of the Constitution. Id. at 45-51, 110 S.Ct. at 2720-2723, 111 L.Ed.2d at 41-44. Only those laws which disadvantage a defendant and fall within a Calder category are ex post facto laws and constitutionally infirm. Id.

Applying this reasoning, we conclude that Section 9711(h) as amended did not deprive appellant of any substantial right protected by the Ex Post Facto Clause. It did not change the elements of the offense or the ultimate facts necessary to establish guilt. Nor did it increase the punishment which the law annexed to Young's crimes when committed. Finally, it did not alter the legal rules of evidence, so as to require less or different testimony than the law required at the time of the commission of the crimes in order to sentence appellant to death. In seeking the death penalty, the Commonwealth was once again required to establish beyond a reasonable doubt the existence of aggravating circumstances sufficient to outweigh any mitigating factors. In challenging application of the amended law to him, appellant does not complain that § 9711(h) denied him any procedural protections relevant to the determination of the appropriate sentence. Nor does he complain that he was deprived of any avenue ofreview for correcting sentencing errors. Indeed, it was precisely such a review which prompted us to vacate appellant's first death sentence and order a new hearing. What appellant is really complaining about is the loss of a procedural windfall that he would have enjoyed had the law not been amended. When viewed from the standpoint of the date the offense was committed, this mere possibility of a windfall life sentence, premised on the occurrence of a sentencing error, is not the type of procedural right the Ex Post Facto Clause seeks to preserve.

Appellant's reliance on Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) is misplaced. In Miller, the Court held that retroactive application of revised sentencing guidelines, which resulted in increased rates and length of incarceration, violated the Ex Post Facto Clause. In the instant case, as has already been noted, there was no such increase in potential sentence. ⁸

B. Jury Selection

Appellant's next contention is that the sentencing court erred in allowing the prosecutor to use a peremptory challenge to exclude prospective juror Victorine Moody. Appellant argues that the Commonwealth exercised this peremptory challenge solely because both Ms. Moody and appellant are black, and that allowing the peremptory challenge was a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree.

In Batson, the United States Supreme Court enunciated...