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Commonwealth of Pennsylvania v. Michael J. Travaglia

September 28, 2011


Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Westmoreland County, Criminal Division, entered on July 26, 2005 at No. CP-65- CR-0000684-1980

The opinion of the court was delivered by: Madame Justice Todd


ARGUED: September 15, 2009


Michael J. Travaglia appeals the sentence of death imposed by the Westmoreland County Court of Common Pleas following a penalty hearing held pursuant to a grant of federal habeas corpus relief. For the reasons that follow, we affirm Appellant's judgment of sentence.

In the early morning hours of January 3, 1980, Apollo Police Officer Leonard Miller was on duty when a silver-colored Lancia sports car containing three men  Appellant, John Lesko, and Richard Rutherford  sped past his position at the Apollo Stop-and-Go convenience store several times. Officer Miller radioed for assistance, then pursued and stopped the sports car. When back-up officers arrived, they found Officer Miller lying on the highway, dead from two bullets fired from a .38 caliber handgun. His service revolver had been drawn, and all six rounds had been fired. Police subsequently located the sports car, which had been abandoned. The windows were shattered and the car had bullet holes in it. It was determined that the car was registered to a William Nichols of Pittsburgh, who had recently disappeared.

Prior to Officer Miller's homicide, state police received information indicating that Appellant may have been involved in a number of armed robberies and killings in Pittsburgh and surrounding counties. Pursuant to their investigation, the state police found a vehicle owned by a homicide victim abandoned near a motel where Appellant and Daniel Keith Montgomery had been staying.

Pittsburgh police located Montgomery in the early evening hours of January 3, 1980 in the downtown area of Pittsburgh. While questioning him, they discovered a .38 caliber handgun on his person. Montgomery told police Appellant gave him the weapon and that Appellant and Lesko had at that time talked about killing a police officer. Montgomery then told police that Appellant and Lesko were staying in a room at the Edison Hotel in downtown Pittsburgh. The police proceeded immediately to the Edison Hotel, where they arrested Appellant and Lesko. After having been given their Miranda warnings, the men were individually interrogated. Both gave statements implicating themselves in the killing of Officer Miller, as well as in the killings of William Nichols, Peter Levato, and Marlene Sue Newcomer.*fn1

Following various delays caused by two changes of venue and a mistrial, a joint trial of Appellant and Lesko for the murder of Officer Miller commenced in Westmoreland County on January 21, 1981, before Westmoreland County Common Pleas Court Judge Gilfert Mihalich and a jury that had been selected in Berks County. On January 30, 1981, the jury convicted both men of first-degree murder and conspiracy for the killing of Officer Miller, and, on February 3, 1981, both men were sentenced to death. On direct appeal, this Court affirmed the convictions. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256 (1984). Subsequently, Appellant filed a petition for relief under the Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S.A. §§ 9541 et seq.,*fn2 which the PCHA court denied on October 4, 1985. The PCHA court's order was affirmed on appeal. See Commonwealth v. Travaglia, 515 A.2d 620 (Pa. Super. 1986), appeal denied, 518 Pa. 639, 542 A.2d 1368 (1987), cert. denied, 491 U.S. 910 (1989).

On June 8, 1990, Governor Robert Casey signed a warrant for the execution of Appellant; on September 9, 1990, however, a stay of execution was issued to allow Appellant to file a petition for habeas corpus. Appellant filed another petition for collateral relief, this time under the PCRA, 42 Pa.C.S.A. §§ 9541-9546, the successor to the PCHA. Appellant's PCRA petition was denied, and, on appeal, this Court affirmed Appellant's sentence of death. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995), cert. denied, 516 U.S. 1121 (1996).

On May 21, 1996, Appellant filed a petition for writ of habeas corpus in federal court, and the district court issued the writ and ordered a new sentencing hearing on the basis that evidence of Appellant's guilty plea to the Nichols murder should have been excluded at trial pursuant to a plea agreement. Thereafter, Appellant filed an omnibus pre-trial motion seeking to bar resentencing pursuant to Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997). The trial court denied the motion, but granted Appellant the right to file an immediate appeal. On December 15, 1998, the Superior Court affirmed the trial court's order. Commonwealth v. Travaglia, 723 A.2d 190 (Pa. Super. 1998), appeal denied, 559 Pa. 704, 740 A.2d 232 (1999), cert. denied, 529 U.S. 1026 (2000).

Prior to the resentencing hearing scheduled for October 16, 2000, the Commonwealth filed a motion in limine seeking a ruling that it would be permitted to introduce evidence of Appellant's previous homicide convictions in rebuttal to Appellant's character evidence. The trial court denied the motion, ruling that evidence of the previous homicides could not be used unless Appellant "opened the door." In this regard, the trial court ruled that evidence presented by the defense relating to Appellant's good behavior in prison, and character evidence relating to periods of time which did not encompass the homicides, did not constitute "opening the door." On October 13, 2000, the Commonwealth filed a notice of appeal, and the Superior Court reversed the trial court's order, holding the trial court erred in precluding the Commonwealth from introducing evidence of Appellant's prior convictions, for purposes of rebuttal, after Appellant introduced evidence of his good prison record and his change in personality while in prison, including becoming religious. Commonwealth v. Travaglia, 792 A.2d 1261, 1264 (Pa. Super. 2002), appeal denied, 572 Pa. 733, 815 A.2d 633 (2002) (table), cert. denied, 540 U.S. 828 (2003).

Appellant's second penalty hearing began on July 5, 2005, and concluded on July 26, 2005. On July 26, 2005, the jury returned a sentence of death, finding the one aggravating circumstance  that the victim was a police officer killed in the performance of his duty, 42 Pa.C.S.A. § 9711(d)(1)  outweighed the two mitigating circumstances established by Appellant under the catchall provision of Section 9711(e)(8)*fn3  that he had lived as a well-adjusted inmate in prison, and that he had changed his life and adopted a Christian lifestyle. Following the denial of his post-sentence motions, Appellant filed the instant appeal, wherein he raises 18 issues regarding his penalty hearing, which we have reordered for ease of discussion.

A. Challenges to Evidentiary Rulings

Appellant raises several claims relating to the trial court's evidentiary rulings at his penalty hearing. Preliminarily, we note that the admissibility of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon abuse of that discretion. Commonwealth v. Laird, 605 Pa. 137, 168, 988 A.2d 618, 636 (2010). An abuse of discretion will not be found "merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Id. (citation omitted). Moreover, "an erroneous ruling by a trial court on an evidentiary issue does not necessitate relief where the error was harmless beyond a reasonable doubt." Id. (citation omitted).

1. Trial Court's Exclusion of Kenneth Miller's Testimony

Appellant first argues that the trial court erred in excluding the testimony of Kenneth Miller, the Death Penalty Unit Manager at the prison where Appellant is incarcerated, regarding Appellant's future ability to adjust to the conditions of the general population. See Appellant's Brief*fn4 at 13 (Argument I). Mr. Miller testified at length regarding his knowledge of Appellant and Appellant's discipline record and work history, but when asked whether he believed Appellant would be able to function successfully in the general population if sentenced to life imprisonment, the Commonwealth objected, and the trial court sustained the objection on the basis that the evidence was speculative. When counsel attempted to lay a further foundation, the Commonwealth objected on the basis that the evidence was not relevant, and the trial court sustained that objection. Appellant contends the trial court erred in this regard, arguing that, under Skipper v. South Carolina, 476 U.S. 1 (1986), the issue of a defendant's future adaptability in prison is a potential mitigating circumstance that may be presented to a penalty phase jury. Appellant further alleges that the prosecutor exploited the absence of Mr. Miller's testimony by arguing to the jury in his closing argument:

We have shown you two aggravating circumstances. We've proven them beyond a reasonable doubt. But it doesn't end there. We've given you a picture of the defendant, Michael J. Travaglia, and the kind of person he is. He's cruel. He's brutal. He's heartless. He's a predator. And none of us know what's going to happen to him or how he will behave in the future.

N.T. Trial, 7/5/05-7/26/05, at 1105.

Although at trial the court indicated it would not allow Mr. Miller to offer an opinion as to whether he personally believed Appellant would adjust well to prison life in the general population because such testimony was both speculative and irrelevant, the trial court, in its subsequent opinion, explained:

Pennsylvania Rule of Evidence 602 states that "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." It is not possible for an individual to have personal knowledge of how someone will behave in the future. Any testimony as to how the Defendant would behave in the future would be speculative, thus this Court properly excluded the testimony.

Trial Court Opinion, 10/11/07, at 6. The trial court further noted that the Supreme Court's ruling in Skipper concerned "testimony regarding present and past adjustment to prison life not future adjustment. The issue in this case is future adjustment." Id. at 7. Finally, the trial court noted:

Defense counsel in his closing argument referred to Kenneth Miller's testimony and argued that "there hasn't been any problem with Mike Travaglia in prison nor is there any evidence that should cause you to believe there will be a problem if you allow him to finish his life in prison." He argued that the Defendant's past behavior in prison was indicative of his future behavior if given a life sentence. . Whether or not the Defendant would adjust to life in prison if given a life sentence was properly left to the jury. . . . The jury was also instructed that the Defendant's adjustment to life in prison was presented as a mitigating factor and that if they found it to be a mitigating factor[,] it was to be balanced against any aggravating factors, if any, they found.

Id. at 7-8 (citations to trial transcript omitted).

As noted above, in support of his argument, Appellant relies on the United States Supreme Court's decision in Skipper. In Skipper, the petitioner sought to introduce at his capital sentencing trial the testimony of two jailers and one regular visitor, who would have testified that petitioner had "made a good adjustment" during the seven months he had been in prison awaiting trial. The trial court, however, held that such evidence was irrelevant and inadmissible because whether petitioner could adjust to life in prison, if spared the death penalty, was not an issue in the case. On appeal, the United States Supreme Court reversed, noting, inter alia, that evidence of a defendant's past conduct in prison may be "indicative of his probable future behavior." 476 U.S. at 5. The Court further opined "a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by nature relevant to the sentencing determination." Id. at 7. The Court concluded a defendant cannot be precluded "from introducing otherwise admissible evidence for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment." Id.

The trial court's finding in the instant case that evidence of Appellant's ability to make a favorable adjustment to life in prison was not relevant as a mitigating factor clearly is inconsistent with the Supreme Court's pronouncement in Skipper. However, as this Court previously explained in our decision affirming the denial of Appellant's second petition for post-conviction relief, "neither Skipper nor Pennsylvania's sentencing scheme suspends the rules and law of evidence; the proffered evidence must be competent, or it may not be presented to the jury." Travaglia, 541 Pa. at 133, 661 A.2d at 364; Skipper, 476 U.S. at 7 (prison adjustment evidence must be "otherwise admissible"). In the instant case, the trial court determined that Mr. Miller's testimony as to his personal opinion regarding how Appellant would adjust to prison life if placed in the general population was speculative under Rule 602 of the Pennsylvania Rules of Evidence, and, therefore, inadmissible. Appellant does not challenge the trial court's determination that Mr. Miller's testimony was speculative, and, indeed, a review of the record reveals that Mr. Miller testified as a fact witness, not an expert. Thus, any error by the trial court in concluding that Mr. Miller's testimony was not relevant was harmless, as the trial court properly excluded Mr. Miller's personal opinion testimony under Rule 602. Accordingly, we reject Appellant's first claim.

2. Trial Court's Exclusion of Other Mitigation Evidence

Appellant additionally asserts the trial court erred in prohibiting him from introducing the following mitigation evidence related to his good character:

1. Evidence from Reverend Kathy Kay Higgins, Prison Chaplain, concerning her professional opinion as to the sincerity of [Appellant's] Christian faith;

2. Evidence from [the] Department of Corrections counselor, Rocky Farmartino, concerning his opinion about the sincerity of [Appellant's] beliefs and remorse for the crimes he committed; and

3. [Testimony from Appellant's] prior attorney, Joseph Luciano [sic], . . . concerning the positive attributes of [Appellant's] attitude and his ability to cooperate with his counsel as compared to those of other inmates that the attorney had represented.

See Appellant's Brief at 32-33 (Argument IV). Appellant claims the testimony of these three individuals was crucial because they are part of the small group who know him, and their testimony regarding the sincerity of his beliefs was important to Appellant's rebuttal of the arguments made by the Commonwealth in its closing argument. Appellant's Brief at 34.

While, as we recognized in Commonwealth v. Lesko, "a defendant is to be accorded wide latitude in demonstrating mitigating circumstances," 553 Pa. at 246, 719 A.2d at 223 (1998),*fn5 the record belies Appellant's claim that the trial court denied him the opportunity to present crucial evidence relating to mitigating circumstances. As the trial court explained:

Joseph Lucciano the Defendant's former attorney testified as to his interaction with the Defendant. Lucciano provided testimony that the Defendant was appreciative of the work he had done for him on the case and was cooperative when asked for information. Lucciano also served as the best man at the Defendant's wedding and spoke to his observations of the Defendant prior to and after the wedding. He explained that he had been informed that the Defendant had become a Christian. He observed after the Defendant's wedding that the Defendant no longer used rough language. The Defendant explained that his wife had indicated that the use of rough language was not consistent with genuine faith. Lucciano also testified that the Defendant expressed that he was sorry for the crimes he had committed and that "he was very sorry for the pain that he had caused to the families, he was genuinely sorry for all the things that he had been involved with..."

Lucciano was precluded from testifying to how seriously he had contemplated being the best man in the Defendant's wedding. He was further precluded from comparing his relationship with the Defendant to his relationship with other prisoners. The testimony was precluded for lack of relevance. "Evidence which tends to establish some fact material to the case, or which tends to make a fact at issue more or less probable, is relevant." The precluded testimony does not make the Defendant's contention that he had conformed and become a Christian more or less likely. Thus the testimony was properly excluded.

Rocky Farmartino was a Corrections Counselor II who was assigned to work with the Defendant. Mr. Farmartino was permitted to read from his report about discussions he had with the Defendant in which the Defendant claimed he had converted to Christianity. Farmartino testified that as a result of his meetings with the Defendant he recommended in a commutation summary that the Governor show mercy. Farmartino was prohibited from testifying as to his opinion of the sincerity of the Defendant's beliefs. This Court ruled that Farmartino's personal opinion as to whether or not the Defendant was sincere in his religious beliefs was irrelevant. Farmartino's opinion in that regard does not make the Defendant's contention that he had become a Christian more or less likely. While the specific opinion of the witness was not allowed in testimony, the witness' opinion was admitted by way of Defense Exhibit R, in which Farmartino stated that "In the opinion of this counselor, Mr. Travaglia seems quite sincere with regards to his expressed beliefs. He seems to be remorseful with regards to his crimes . . ."

There is no evidence that the Court precluded this witness from providing relevant mitigating evidence.

Reverend Kathy Higgins is a Chaplain at the state correctional facility where the Defendant is housed. The Defendant's specific objection is that Reverend Higgins was not permitted to provide her professional opinion as to the sincerity of the Defendant's Christian faith. However, Reverend Higgins was permitted to read from a letter she wrote, on the Defendant's behalf, for admission into an external Christian congregation. She described her interactions with the Defendant and stated that she believed what she wrote in the letter to be true. In the letter she stated "I do believe that Michael is genuinely seeking after Jesus Christ." This statement is an opinion of her belief that the Defendant was sincere about his faith and the Court notes that the letter was admitted into evidence as Defense Exhibit Z.

The defense witnesses were permitted to provide mitigating evidence as to the Defendant's character. The Jury, after instructions on how to determine what was mitigating evidence and how to use that evidence in their decision as to sentencing, found two mitigating factors. The first being that the Defendant had lived as a well adjusted inmate in prison and the second being that the Defendant had changed his life and adopted a Christian lifestyle. There is no evidence that the court precluded these witnesses from providing relevant mitigating evidence thus the Defendant's argument lacks merit.

Trial Court Opinion, 10/11/07, at 13-15 (case citations and citations to transcript omitted, emphasis added).

Although Appellant contends the three witnesses "could have added so much more to the evidence of mitigation had they been permitted to testify," Appellant's Brief at 35, it is clear that the evidence of mitigating circumstances Appellant sought to have admitted was, in fact, admitted by the trial court, albeit through different means than Appellant desired. Accordingly, Appellant is not entitled to relief on this claim.

3. Superior Court's Ruling that Evidence of Positive Prison Adjustment is Rebuttable Appellant next argues that, on the Commonwealth's appeal of the trial court's denial of its motion in limine, the Superior Court erred in holding that, in capital penalty hearings, evidence of positive prison adjustment may be rebutted by otherwise inadmissible evidence of crimes that were committed before a defendant was incarcerated. See Appellant's Brief at 19 (Argument II) (citing Commonwealth v. Travaglia, 792 A.2d at 1264).*fn6 In so arguing,

Appellant contends that evidence of positive prison adjustment is not character evidence, as it does not suggest that a defendant "is a good person, but that, as a sentencing factor, he can be a good prisoner." Appellant's Brief at 20. Thus, according to Appellant, the Commonwealth should have been precluded from introducing evidence of the Levato and Newcomer homicides to rebut evidence of his positive prison adjustment.*fn7

Appellant further argues that, to the extent evidence of his good behavior in prison is considered character evidence, it pertains only to evidence of his character in prison, and should not be subject to rebuttal through evidence of crimes committed outside of or prior to his incarceration. In this regard, Appellant maintains, "the evidence appropriate to rebut 'good' prison behavior is 'bad' prison behavior, not behavior external to the prison setting." Appellant's Brief at 22 (citing Skipper, supra).

It is clear that a defendant may present any admissible evidence relevant to any mitigating circumstance, including any evidence regarding the character and record of the defendant. 42 Pa.C.S.A. § 9711(a)(2) and (e)(8); Skipper, supra. However, "it is equally clear that the defendant is not entitled to present, without challenge or rebuttal by the Commonwealth, false or misleading evidence or to create a false impression of his character or record." Commonwealth v. O'Shea, 523 Pa. 384, 404, 567 A.2d 1023, 1032 (1989).

Furthermore, contrary to Appellant's contentions, this Court considers evidence of a defendant's good behavior in prison, at least when presented along with other more traditional character evidence, to be character evidence subject to rebuttal by the Commonwealth. For example, in Commonwealth v. Fisher, we rejected the appellant's argument that the trial court erroneously allowed the Commonwealth to question him regarding the meaning of a tattoo of the word "Kuda"*fn8 he had on his arm, reasoning:

At the penalty phase hearing, Appellant presented the testimony of his Corrections Counselor Bradley Newman as to Appellant's reputation for being kind, courteous and relating well with others while imprisoned. Appellant's defense counsel characterized Appellant as a war hero (since Appellant received a Purple Heart in Vietnam) and a model prisoner. Appellant presented evidence that he was devoutly religious. By presenting this evidence as to his good character, Appellant put his character at issue. Having done so, the prosecution was entitled to cross-examine Appellant regarding his tattoo in order to rebut the inference of good character.

559 Pa. 558, 579, 741 A.2d 1234, 1245 (2000).

As noted above, Appellant introduced the testimony of Kenneth Miller, who testified extensively, and favorably, regarding Appellant's discipline record and work history while Appellant was in prison. However, this testimony comprised only a portion of the character evidence introduced by Appellant. Indeed, as the Commonwealth points out in its brief, Appellant presented the testimony of approximately 20 witnesses who testified to Appellant's character, including that, as a student, Appellant was well-behaved, respectful, disciplined, and well-liked; that Appellant had become addicted to drugs prior to the occurrence of the crimes; and that, since his imprisonment, Appellant has found religion and become a "new man." Although Appellant attempts to isolate the testimony regarding his good behavior in prison from the remainder of his character evidence, such evidence of good behavior was not presented in a vacuum, and the prosecution was entitled to rebut Appellant's portfolio of character evidence with evidence of behavior that occurred prior to Appellant's incarceration. See 42 Pa.C.S.A. § 5918(1) (defendant may be cross-examined regarding prior crimes if he introduces evidence in support of his own good character or reputation). Accordingly, we hold that Appellant is not entitled to relief.

4. Evidence of Appellant's Guilty Plea to the Nichols Homicide

Appellant next contends that the trial court erred in denying his motion for a mistrial when, after being warned by the trial court against attempting to introduce evidence of Appellant's guilty plea to the Nichols homicide in Indiana County, the prosecutor twice mentioned the same. See Appellant's Brief at 24 (Argument III). A mistrial is an extreme remedy that is required only where the challenged event deprived the accused of a fair and impartial trial. Laird, 605 Pa. at 170, 988 A.2d at 638. We review the denial of a mistrial under the abuse of discretion standard. Id.

The basis of Appellant's claim is the November 7, 1996 order by the Honorable Alan N. Bloch of the United States District Court for the Western District, which was issued at the conclusion of the hearing on Appellant's habeas petition:

IT IS ORDERED that the petition for writ of habeas corpus filed by Michael Travaglia is granted and that he is to be discharged from custody unless, within one-hundred twenty days, the County of Westmoreland holds a resentencing hearing at which evidence of his Indiana County guilty plea is excluded.

Order, Civil Action No. 90-1469, 11/7/96, at 1.

The impact of the above order was the subject of sidebar discussion at Appellant's sentencing hearing. The trial court determined that the order precluded evidence of Appellant's guilty plea to the Nichols homicide, but not evidence of the facts and circumstances surrounding the homicide. N.T. Trial, 7/5/05-7/26/05, at 527. Subsequently, however, the prosecutor argued that evidence of Appellant's guilty plea to the Nichols homicide was precluded only if introduced as an aggravating circumstance. Id. at 532. The trial court disagreed, and instructed the prosecutor not to mention Appellant's guilty plea. Id. at 540-41.

Thereafter, on two occasions, the prosecutor asked two of Appellant's character witnesses, Ruth Ellis Gamble and Ruth Miller, whether they knew that Appellant had been convicted in Indiana County for the murder of William Nichols. On both occasions, trial counsel objected and requested a mistrial, but the trial court denied the request. In its opinion and order, the trial court acknowledged there was some confusion and/or disagreement regarding the impact of the ...

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