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decided: May 24, 1984.


No. 42 E.D. Appeal Dkt. 1982, Appeal from the Judgment of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section Imposed on Information No. 1442, November Term, 1980


James S. Bruno, Norristown (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, C.j., files a dissenting opinion. Former C.j. Roberts did not participate in the decision of this matter.

Author: Mcdermott

[ 505 Pa. Page 157]


The appellant here appeals from a sentence of death.*fn1 If the facts alleged and resolved by the jury are legally predicated, they depict a "wickedness of disposition, a hardness of heart and recklessness of consequence," that are the very name and nature of murder. With the announced intention of robbery and "killing if necessary," appellant lured an encyclopedia salesman to his home. The victim came, hoping to show his books to a concerned and loving father. As he sat in appellant's home, he knew not the frigid cruelty that was to engulf him. He knew not that on the morrow his own son would find him, thrown into the cellar in a trash bag.

Appellant challenges the verdict below on numerous grounds.*fn2 These challenges center around violation of Pennsylvania Rules of Criminal Procedure Rule 1100, a warrantless search, marital privilege, prosecutorial remarks, and infliction of cruel and unusual punishment due to the imposition of the death penalty. We reject these challenges and affirm.*fn3

[ 505 Pa. Page 158]

The pertinent facts are summarized as follows: In May of 1979, appellant sent a card to Encyclopedia Britannica requesting a salesman to call regarding the purchase of a set of the encyclopedias. Paul Kent visited the appellant and his live-in paramour, Ann Gasper, at appellant's house, but no encyclopedias were purchased because neither of them had any funds.

On the morning of June 5, 1979, appellant instructed Ann Gasper to telephone Mr. Kent's office and ask Mr. Kent to return to appellant's household since they now had the necessary funds to buy the books. According to Ann Gasper's testimony, appellant told her and co-defendant Gary Mobley, who had been present in appellant's house that day, that he was going to rob the salesman and kill him if necessary. At appellant's request Gary Mobley went to a nearby store to buy some trashbags. Appellant told Ms. Gasper to go upstairs and get the children ready as they were going to the store. In the meantime, Mr. Kent arrived at appellant's house and for a brief while they discussed the books.

Upstairs Ann Gasper heard two gunshots. When she descended Ms. Gasper observed Paul Kent's body slumped in a dining room chair, dead. He had been shot twice in the head at close range. Appellant told Ms. Gasper to wash Mr. Kent's blood from the wall, carpet and chair while he and Gary Mobley stuffed the lifeless victim in trash bags and carried it to the cellar, where they removed the victim's wallet. Taking Mr. Kent's car the trio drove to Wanamaker's Department Store in Philadelphia, where they purchased a purse and two television sets with the victim's credit card, being the exchange for Paul Kent's life. The television sets were never claimed at the pick-up department

[ 505 Pa. Page 159]

    because the Wanamaker's salesman became suspicious of appellant's purchase and had the sets returned to his department.

The threesome then returned to appellant's house. Gary Mobley promised appellant that he would dispose of the corpse the next night when he would be least visible. The following morning, appellant broke the basement door to prevent his teenage girls from entering the basement. Ms. Gasper wrote a note to the children informing them of the basement door and that she and appellant were out shopping and would return later that evening.

Instead, appellant and Ms. Gasper drove the victim's car to New York City. Later that same afternoon the victim's son went to appellant's home to ask the whereabouts of his father. Appellant's daughters searched the house and discovered the victim's body in the trashbags. The girls went outside to a pay booth to telephone their grandmother. En route they approached two police officers who were observing the house from a car across the street and informed them of what they had seen. The police had been waiting for the arrival of a search warrant for appellant's house. The police officers requested permission to enter the house and the daughters granted it.

The fugitives never returned from New York since they were aware from appellant's mother that the police were looking for them. Fourteen months later appellant was apprehended by New York Police.

Appellant initially alleges that the trial court erred in denying his motion to dismiss the charges because he was denied his right to a speedy trial. Appellant claims that a complaint was filed against him on June 6, 1979, and that his trial did not commence until April 24, 1981.

Pennsylvania Rule of Criminal Procedure 1100 specifically provides that a defendant must be brought to trial within one hundred eighty days from the date on which the complaint is filed. Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982). Subsection (c)(1), (2) and (3) of Rule

[ 505 Pa. Page 1601100]

permits the Commonwealth to apply to the court for an order extending the time for commencement of trial upon a showing that the trial could not commence within the prescribed time period despite the "due diligence" of the Commonwealth.*fn4 Although this Court has yet to precisely define "due diligence" we have on past occasions concluded that such a showing depends on the circumstances of each particular case. See Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Romberger,

[ 505 Pa. Page 161490]

Pa. 258, 416 A.2d 458 (1980); Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). Moreover, this Court has held that Rule 1100 requires that the Commonwealth prove by a preponderance of evidence that it acted with due diligence in bringing a case to trial. Commonwealth v. Ehredt, supra.

In this case appellant argues that the Commonwealth failed to establish its due diligence since it never communicated to him through the public, by advertisements or legal notices, a warrant for his arrest, and that because of such lack of notice he did not know that he was wanted in the Paul Kent killing. This claim is as frivolous as it is macabre.

The record reveals that appellant was the focal point of a massive manhunt. He was wanted not only by local authorities, but also by state and federal authorities throughout seven states. Furthermore, appellant's own testimony contradicts this claim. While in New York, they moved to various addresses in an effort to escape apprehension. From New York Ms. Gasper telephoned appellant's mother who told her that her son should turn himself in because the police were looking for him. Ms. Gasper relayed this information to appellant. Nevertheless, appellant continued to elude police over the next fourteen months.

A person who callously kills another human being, flees to another state to conceal his whereabouts, and abandons his normal pattern of living and his children without any explanation cannot later claim he was unaware that he was wanted by the police. Because appellant intentionally concealed himself from this manhunt he cannot now complain. Moreover, under subsection (d)(1) of Rule 1100, the fourteen months that appellant evaded the police after the June 6 complaint was filed are explicitly excluded from calculating the 180 day period. Furthermore, appellant waived this issue when he appeared before Judge Ribner and requested a three month extension of Rule 1100 for the purpose of

[ 505 Pa. Page 162]

    conducting further investigation. This unequivocal on-the-record waiver of Rule 1100 provides a further ground for rejecting this claim. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

Appellant next maintains that his Fourth Amendment right to privacy was infringed by the warrantless search of his home. There the Philadelphia police found the body of Paul Kent, which appellant claims should have been suppressed. The trial judge justified the validity of the warrantless entry on three theories: consent, abandonment, and exigent circumstances. Conversely, appellant argues that the trial court erred on all three grounds.

Appellant first contends that the police intimidated Yolanda, appellant's daughter, thus negating her consent. We have previously held that a mere acquiescence to a claim of lawful authority does not discharge the burden that consent must be freely and voluntarily given. Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973), later app. 462 Pa. 543, 342 A.2d 67 (1975). Appellant, however, ignores the uncontradicted evidence that it was Yolanda who approached the police officers in their car and asked them to come inside the house because she wanted to show them what was in the trash bag in the basement. The police neither forced themselves upon Yolanda nor used their authority as a pretext to gain entry into appellant's house. The police officers' actions in searching the house were in direct response to Yolanda's directives. There was nothing intimidating in this scenario.

Nevertheless, appellant argues that Yolanda was incapable of giving consent because she was only sixteen years of age. Although age is one element to acknowledge in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent. In Re: Anthony F, 293 Md. 146, 442 A.2d 975 (1982) (Sixteen year old sister of juvenile gave consent); Doyle v. State of Alaska, 633 P.2d 306 (Alaska App.1981) (Fourteen year old son gave consent); State of Iowa v. Folkens, 281 N.W.2d 1

[ 505 Pa. Page 163]

(Iowa 1979) (Fourteen year old son in charge of house while mother was absent gave consent); United States v. Bethea, 598 F.2d 331 (4th Cir.1979) cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); People v. Swansey, 62 Ill.App.3d 1015, 20 Ill.Dec. 211, 379 N.E.2d 1279 (1978).

The record is devoid of any evidence that would indicate that Yolanda's age itself prevented her from giving a valid consent. Nor is there evidence of any emotional immaturity or mental instability. On the contrary the record reveals that Yolanda made a very rational decision when she left her house after discovering the body. The evidence establishes that consent existed irrespective of Yolanda's age.

Secondly, appellant argues that the doctrine of exigent circumstances is inapplicable to this case because "the police had every reason to believe the decedent was indeed dead". This mordant hindsight overlooks one of the limited reasons for this warrantless exception.*fn5 Generally, police are allowed to make warrantless searches when a life threatening emergency exists. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Accord Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982) (Permits search "when the officers may in good faith believe that they or someone within are in peril of bodily harm.")

[ 505 Pa. Page 164]

Without doubt the police in this case had reason to believe that Paul Kent was in appellant's house and in need of immediate aid. The victim had been reported missing twenty-four hours earlier by his wife; his last whereabouts were traced to appellant's house; his credit card had been used by someone else; and the police had been confronted by appellant's daughter who told them that there was an unfamiliar large trash bag in the basement of which she was afraid, and that she had found an unidentified pair of shoes and a briefcase. Moreover, because a search warrant was in transit the police would have had no reason to enter appellant's house, except to aid the victim. The lower court was correct when it reasoned that "there was a likelihood of a living, but injured, human being inside the premises."*fn6

Appellant next argues that the trial court erred in allowing Ann Gasper to testify against him at his trial. Appellant argues that since he and Ann Gasper lived together there was a common-law marriage and thus she should have been precluded from testifying under the marital incompetency statute 42 Pa.C.S. § 5913.*fn7 That statute provides that spouses are neither competent nor permitted to testify against each other in criminal proceedings.*fn8

[ 505 Pa. Page 165]

Moreover, the basis for invoking the marital privilege is the existence of a valid marriage. See Commonwealth v. Clanton, 395 Pa. 521, 151 A.2d 88 (1959); Commonwealth v. Jones, 224 Pa. Super. 352, 307 A.2d 397 (1973) (Testimony of an alleged common-law wife admissible). In Clanton, supra, this Court held that a wife was a competent witness against her second spouse because she had never divorced her first husband and he was still alive. In so holding, the Clanton Court reasoned that "the test is not whether the parties to an allegedly lawful marriage believe that they are lawfully married; the test is whether in law they are legally married." Id. 395 Pa. at 528, 151 A.2d 88.

The uncontradicted evidence established in the trial court showed that Ann Gasper, at the time of Mr. Kent's execution, was still legally married to one Calvin Brandon. There was no evidence proving that Ms. Gasper and Mr. Brandon had been divorced. As the trial court found, appellant and Ms. Gasper were merely cohabitating. Consequently, appellant has no legal basis for asserting the marital incompetency privilege and the testimony was properly admitted.

Appellant's fourth assignment of error relates to the exclusion of potential veniremen who indicated an opposition to the death penalty. Appellant contends that the exclusion of such veniremen resulted in a prosecution-prone jury. This argument is meritless. Simply questioning potential veniremen on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971).

Appellant complains next about the prosecutor's summation, which he claims improperly disparaged his trial counsel's

[ 505 Pa. Page 166]

    ethics and trial tactics. During his closing argument, the prosecutor recited:

Let me make a couple comments about what counsel said -- some of the things counsel said. There is an old adage in the law if you got the facts on your side, you argue the facts, if you got the law on your side, you argue the law, if you have neither, you blow smoke. And that is what counsel did for two hours yesterday. By putting me on trial he was blowing smoke.

(Notes of Testimony at 1072-73.)

Appellant argues that this precise metaphor prejudiced him in the jurors' eyes and prevented them from rendering an impartial verdict.

This Court has recently defined the standard for ordering a new trial in a case where a prosecutorial statement is deemed improper. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982). There we concluded that, although a prosecutor's statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor's remark prejudices the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Id., 497 Pa. at 627, 444 A.2d at 92. See also Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981) (New trial warranted when unavoidable effect of prosecutorial comment is to deprive defendant of fair trial); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).

Furthermore, "[T]he prejudicial effect of the district attorney's remarks must be evaluated in the context in which they occurred." Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); See also, Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). However, a reversal is not an automatic formality for every intemperate or improper comment by the prosecution. A trial judge will not be reversed for failing to provide an appropriate remedy

[ 505 Pa. Page 167]

    unless there has been an abuse of discretion. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975).

In reviewing the prosecutor's statement we do not find it to be such as to require a new trial. The remark complained of was in response to the personal attack made upon the prosecutor during appellant's counsel's summation. There was nothing inappropriate about the prosecutor's comment when reviewed in the situation in which it was made.

Appellant's sixth complaint challenges the constitutionality of the death penalty statute*fn9 on the grounds that it violates due process and is cruel and unusual punishment under both the Pennsylvania and United States Constitutions.*fn10

Recently, this Court has thoroughly analyzed these precise arguments and rejected them. 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, reh. den. U.S. , 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). There this Court held that the death penalty is neither per se cruel punishment nor offensive to due process under either the Pennsylvania or Federal Constitutions. Id., 500 Pa. 66-74, 454 A.2d at 963-67.

Finally, appellant argues that the death sentencing procedure statute*fn11 is unconstitutionally vague because it does not provide an adequate standard of weighing aggravating against mitigating circumstances. Specifically, he points to the language ". . . if the jury unanimously finds one or

[ 505 Pa. Page 168]

    more aggravating circumstances which outweigh any mitigating circumstances . . ." 42 Pa.C.S.A. § 9711(c)(1)(IV). Although this claim was also considered and rejected by this Court in Zettlemoyer, supra, we will address the merits of this contention.

During appellant's sentencing hearing neither he nor his counsel presented any evidence of mitigating circumstances. The only evidence presented at this hearing was appellant's own testimony denying he killed Mr. Kent, a fact which the jury had previously resolved against him. Consequently, the jury found no mitigating circumstances. Hence, the only consideration required by the jury was whether the Commonwealth had proven two aggravating circumstances beyond a reasonable doubt.*fn12 Because appellant did not introduce any evidence of mitigating circumstances, it became unnecessary to "weigh" opposing circumstances. This Court has consistently held that a claimant cannot challenge the constitutionality of a statute abstractly; he is afforded such right only if it is sought to be enforced in his particular case. Commonwealth v. One 1976 Ford Truck Van, 492 Pa. 541, 424 A.2d 1323 (1981) cert. denied, 454 U.S. 819, 102 S.Ct. 99, 70 L.Ed.2d 89 (1981); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); Knowles' Estate, 295 Pa. 571, 145 A. 797 (1929).

In this case, because appellant did not introduce any mitigating circumstances, the jury never had to consider the application of 42 Pa.C.S. § 9711(c)(1)(iv); accordingly, appellant cannot now question it. Cf: Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977) cert. denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978). (Person has automatic standing to challenge death penalty statute which has been held unconstitutional.)

[ 505 Pa. Page 169]

Finally, we address, sua sponte,*fn13 whether the sentence of death imposed by the jury in the instant case is excessive or disproportionate to those of other similarly situated defendants. 42 Pa.C.S. § 9711(h)(3)(iii). Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984). Our analysis is aided by a comprehensive study*fn14 conducted by the Administrative Office of Pennsylvania Courts (hereinafter "AOPC") which has reviewed the sentences sought and obtained for all convictions for murder in the first degree between September 13, 1978 and February, 1984, the period of time for the relevant and effective sentencing procedures. Included in the study are the facts and circumstances of the crimes, the gender, race and age of the defendant and victim, the defendant's prior criminal record, if any, and other data relating to the conduct and prosecution of each case.

We have carefully studied the data compiled by the AOPC and have found that in cases where a defendant did not present any mitigating circumstances and the prosecution proved at least one, and in most cases two or more, aggravating circumstances, the sentence of death has always been imposed. More importantly, in those cases that were identical to appellant's, that is where there were no mitigating circumstances and the same two aggravating circumstances (killing a person while in the perpetration of a felony and the defendant having a significant history of felony convictions involving the use or threat of violence to the person 42 Pa.C.S. § 9711(d)(6)(9)) had been proved by the Commonwealth, all defendants received the death penalty.

[ 505 Pa. Page 170]

In light of the findings in AOPC's study and our own independent evaluation of the entire record in this case, we conclude that the sentence of death imposed by the jury in the instant case was neither excessive nor disproportionate to penalties imposed in similar cases. Therefore, we sustain the conviction of murder in the first degree and affirm the sentence of death.*fn15

NIX, Chief Justice, dissenting.

I dissent.

No proposition is more fundamental to our accepted notions of due process than the proposition that a person charged with a serious crime is entitled, as a matter of right, to trial by a fair and impartial jury selected from a representative cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976); Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976); Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973); Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972), cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974); Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972);

[ 505 Pa. Page 171]

    hypothesis that death qualified juries are both prosecution-prone and unrepresentative. These studies now demonstrate convincingly that persons favoring the death penalty are significantly more likely to vote for conviction in capital cases and that persons excluded from jury service on the basis of their unwillingness to impose the death penalty represent a distinct and sizeable group in the community. Thus it would appear that Witherspoon no longer presents a valid obstacle to the challenge raised herein. In fact, faced with the mass of information presently available, at least two federal trial courts have now invalidated state death qualification procedures on federal constitutional grounds. Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C. 1984); Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983). The United States Supreme Court has yet to reevaluate its position in Witherspoon. Without attempting to predict the outcome of such a reassessment by that Court, I am satisfied that the death qualification procedure violates the guarantees of Article I, sections 6 and 9 of the Pennsylvania Constitution*fn1 and would so hold.

The prosecution-proneness of death qualified jurors is firmly established by the results of a definitive study of the question reported in Cowan, Thompson & Ellsworth, The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Human Behavior 53 (1984) (hereinafter " Cowan "). The participants in the study were 288 adults eligible for jury

[ 505 Pa. Page 173]

    service.*fn2 Each was questioned as to his or her attitude toward the death penalty. Those indicating an unwillingness to impose the death penalty in any case were classified as " Witherspoon -excludables" while those who stated they would consider voting to impose it in some cases were labeled "death qualified." The participants were also asked whether they would be fair and impartial in deciding the question of guilt or innocence, and those who answered that they would not were excluded. The remaining subjects were shown a videotape of a simulated trial "complex enough to afford several plausible interpretations and verdict preferences." Id. at 63. A verdict questionnaire was distributed to each participant at the conclusion of the videotape. A tabulation of the votes revealed that 77.9 percent of the death qualified subjects voted to convict of some level of homicide, as opposed to only 53.3 percent of the Witherspoon -excludables, a highly significant difference of 25 percent.*fn3 The Cowan study is of considerable

[ 505 Pa. Page 174]

    importance not only for its finding of a high correlation between death penalty attitudes and conviction-proneness, but also because it successfully replicated the results of prior post- Witherspoon studies. See Jurow, New Data on the Effect of a Death Qualified Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567 (1971); White, The Constitutional Invalidity of Convictions Imposed by Death-Qualified Juries, 58 Cornell L.Rev. 1176 (1973) (reporting a 1971 study by Louis Harris and Associates).

The conclusion that death qualified juries are conviction-prone is further buttressed by a number of studies which reveal why death qualified juries are more likely to convict. See, e.g., Cowan, supra; Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Human Behavior 31 (1984) (hereinafter " Fitzgerald "); Thompson, Cowan, Ellsworth & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Human Behavior 94 (1984) (hereinafter " Thompson "); Bronson, On the Conviction-Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970) (hereinafter " Bronson "). One study demonstrated that "death-qualified subjects evaluated the evidence in a way markedly more favorable to the prosecution than did excludables." Thompson, supra at 103. That study also found that "relative to excludables, death-qualified subjects express less regret for erroneous convictions and more for erroneous acquittals," id. at 109, "indicating that less evidence is necessary to convince death-qualified jurors beyond a reasonable doubt." Id. at 111.

Another study reveals "a consistent pattern of differences between death-qualified and excludable jurors." Fitzgerald, supra at 45. As compared with Witherspoon excludables, death qualified jurors are more punitive, less sensitive to procedural and constitutional guarantees, biased in favor of the prosecutor and against defense counsel,

[ 505 Pa. Page 175]

    and more willing to ignore a judge's instructions regarding pretrial publicity, in each case to a statistically significant degree. Id. The causal relationship between such attitudes and the tendency to convict requires no elaboration.

Like death qualified jurors, Witherspoon -excludables have been shown to share a set of interrelated attitudes toward the criminal justice system. These attitudes are distinct from those possessed by death qualified jurors, even those who express some opposition to capital punishment. Fitzgerald, supra; Bronson, supra; see Grisby v. Mabry, supra. Moreover, it has been established that persons who share such attitudes constitute a sizeable group within the community. Fitzgerald, supra; Bronson, supra; see Keeten v. Garrison, supra; Grigsby v. Mabry, supra. Thus, the effect of the death qualification process is to systematically exclude all members of a cognizable group. As a result of the death qualification process, a significant viewpoint goes unrepresented on the capital jury, rendering that jury unrepresentative.

The strong empirical evidence amassed in the wake of Witherspoon has been well summarized as follows:

The evidence . . . clearly establishes that a juror's attitude toward the death penalty is the most powerful known predictor of his overall predisposition in a capital criminal case. That evidence shows that persons who favor the death penalty are predisposed in favor of the prosecution and are uncommonly predisposed against the defendant. The evidence shows that death penalty attitudes are highly correlated with other criminal justice attitudes. Generally, those who favor the death penalty are more likely to trust prosecutors, distrust defense counsel, to believe the state's witnesses, and to disapprove of certain of the accepted rights of defendants in criminal cases. A jury so selected will not, therefore, be composed of a cross section of the community. Rather, it will be composed of a group of persons who are uncommonly predisposed to favor the prosecution, a jury "organized to convict." Grisby v. Mabry, supra at 1273.

[ 505 Pa. Page 176]

In view of this compelling evidence of the unfairness of our present system, I cannot accept the execution of a death sentence resulting from such a process. The interest of justice cries out against the inequity of our present situation and our sense of fairness should respond. Appellant is entitled to a new trial before an impartial and representative jury.

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