Appeal from the Judgment of Sentence Entered on March 30, 2009, by the Lancaster County Court of Common Pleas, Criminal Division, at CP-36-CR-: 0003550-2007
The opinion of the court was delivered by: Mr. Chief Justice Castille
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
ARGUED: September 15, 2010
We review the direct appeal of Abraham Sanchez, Jr. ("appellant") from the sentence of death imposed on March 30, 2009, following a trial by jury before the Honorable Joseph C. Madenspacher of the Lancaster County Court of Common Pleas. Appellant raises eight claims of trial court error regarding aspects of the guilt and penalty phases of his trial, including a challenge to the timing and the use of the jury in adjudicating his claim of death penalty ineligibility under Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the U.S. Supreme Court held that execution of the mentally retarded violates the constitutional prohibition against cruel and unusual punishment. For the reasons that follow, we affirm the conviction and judgment of sentence. In addition, we take this opportunity to devise a procedure for implementing the Atkins decision in Pennsylvania. See Section VII, infra.
On May 2, 2007, appellant and his friends Lorenzo Schrijver, Robert Baker, and Emru Kebede met at the home of Susan Bass, Baker's then-fiancee, to plan a robbery. The four men gathered almost daily in the basement of the Mount Joy, Pennsylvania, home, where Bass shared a room with Baker; appellant and Schrijver were closest to each other. Schrijver, a citizen of the Netherlands and recent arrival in the United States, was dating and later became engaged to appellant's sister, Enid Orona. Appellant, Schrijver, Orona, and Orona's son lived together. Appellant and Schrijver had met Baker two months earlier, at a Burger King that Orona managed and where Schrijver's grandmother worked; Baker and Kebede had been friends for a few years.
Appellant and Schrijver discussed the robbery as a means to finance their burgeoning marijuana sale operation. When Bass returned home from work on May 2, 2007, she found appellant and Schrijver cleaning and "playing" with a gun that the two had left with Baker a few weeks earlier. Appellant had persuaded Schrijver in early April 2007 to purchase the handgun -- a .22 caliber Smith & Wesson black revolver -- from one of appellant's acquaintances. After one of their marijuana buyers was arrested, appellant and Schrijver had asked Baker to store the gun and some drugs. Baker kept the gun in a shoe box under Bass's bed. At the beginning of May 2007, appellant and Schrijver removed the gun from Bass's house because they learned Baker had been using it to shoot trees and street signs. Appellant and Schrijver stored the gun under the passenger seat of Schrijver's car, a green Geo Metro hatchback.
The night of May 2, 2007, after deciding to go through with the robbery, appellant and Schrijver asked Baker and Kebede to join them. Eventually, the four men agreed to either burglarize a home or break into a car. All obtained gloves. At the time, appellant was dressed in long black jeans and a red short-sleeve shirt with a gray logo on the front.
Schrijver was wearing a white T-shirt and blue jeans, and Baker was dressed in all-black. Appellant and his companions left Bass's house in Schrijver's Geo Metro and drove towards Elizabethtown.
After driving for a while, Schrijver noticed an isolated house with a light on and an elderly man, Ray Diener (the "victim"), sitting at a table inside. Schrijver parked the car and the four men walked up to the victim's house; Schrijver rang the door bell. The victim turned on the porch light and came to the door. Appellant, Baker, and Kebede remained hidden in the shadows on the right and left of the door. Schrijver asked to use the phone, telling the victim that his car had broken down. While the victim returned to the house to bring his cell phone, Schrijver handed the gun to appellant and prepared to attack the victim.
The victim returned, and Schrijver testified that he took the phone and pretended to make a call because he was uncertain how to proceed. At that point, appellant came out of the shadows, pointed the gun at Mr. Diener and told him to lie down. The victim grabbed the gun and screamed "No, no, no." The victim and appellant wrestled over the gun. Appellant discharged the gun, and the bullet hit the victim in the groin area and fractured his hip. The victim fell down, and began crying and pleading for help. After the shot, Baker and Kebede fled towards Schrijver's Geo Metro. Schrijver stayed and told appellant to shoot the victim again. Appellant put the gun in the victim's mouth and threatened him to keep quiet but the victim continued crying. Appellant backed up and shot the victim in the chest.
The victim was still alive when his wife, Barbara Diener, who was awakened by her husband's screams, came outside. Mrs. Diener saw her husband on the ground and heard Schrijver say "There's the wife." She ran back inside, locked the doors, and called 911. Mrs. Diener told the 911 operator that two men were trying to open the door. Then, appellant, who was standing over the victim, shot the victim again, through the neck and shoulder. Schrijver fled towards his car, quickly followed by appellant, and the four men drove away. Mrs. Diener went back outside, covered her husband's body, and sat with him until the police arrived.
Appellant and his companions drove towards Elizabethtown. Appellant wiped down the gun and threw the spent shell casings out of the car window, one by one. Schrijver asked appellant how he felt about shooting a man, and appellant answered that he felt like a "G" -- a gangster. N.T., 3/3/2009, at 1641. According to Schrijver, appellant looked "excited" and showed no remorse. Schrijver gave appellant Mr. Diener's cell phone and suggested calling 911. At the suggestion of the other men, however, appellant turned off the cell phone. Then, appellant and his companions went to pick up Orona's son from the home of Schrijver's grandmother. From there, the men drove to an abandoned house where appellant and Schrijver normally hid drugs, and appellant got out and hid the gun under a concrete block on the floor of the abandoned house. Schrijver dropped off Baker and Kebede at Baker's house, and went with appellant to pick up Orona from work. Outside the Burger King, Schrijver asked appellant again about how it felt to shoot somebody. Appellant "shrugged it off," and told Schrijver that, at the third shot, he saw the victim's "hair fly up and the eyes rolling back in the head." N.T., 3/3/2009, at 1649. According to Schrijver, appellant was acting "tough" and bragging about his actions.
Barbara Diener called 911 at approximately 10:45 p.m., and police officers were dispatched to her home in West Donegal Township, on the outskirts of Elizabethtown. Officers Shuey and Cleland arrived at the scene and found Mrs. Diener on her porch, kneeling and holding the victim's body. Officer Shuey took Mrs. Diener inside and surveyed the property for the possible presence of perpetrators. Meanwhile, Officer Cleland approached the victim who was lying face-down in the flower bed, with the lower half of his body on the porch steps. Cleland concluded that the victim was dead and noted that blood was coming from wounds caused by a small caliber weapon to the victim's chest and thigh. Dr. Newman, a local assistant coroner and neighbor of the victim, arrived at the scene and confirmed Officer Cleland's observations. Subsequently, other emergency personnel and police arrived to begin the investigation, and secure and process the scene.
The main investigator, Police Officer Wahl, interviewed Mrs. Diener, who stated that, when she came outside to the porch, she was confused and her focus was on her injured husband. Mrs. Diener said that she briefly heard a man addressing another person, from which she concluded that there were two perpetrators. She described them as male, 5'8" or 5'9" in height. According to Mrs. Diener, "they were white because they weren't black. I don't know if they were Mexican or [H]ispanic or Spanish." Mrs. Diener also stated that one of the perpetrators may have been wearing a red T-shirt and khakis, but she was unable to describe his facial features. A sketch artist drew a composite from Mrs. Diener's description of a second perpetrator.
Following the murder, appellant spoke to several persons about the night of May 2, 2007. On May 4, while he was riding in Schrijver's Geo Metro, appellant opened the glove box and showed the other passengers the victim's cell phone, saying it was "[his] new cell phone." According to Bass, who was in the car, appellant boasted that he shot the victim "for fun" in the foot, stomach, and head. Around the same time, appellant also confessed to his friend Marcus Pendleton while the two played videogames. Appellant told Pendleton that he and his friends robbed and shot the victim, taking his cell phone. Finally, appellant described the night of the murder to his Burger King co-worker, Chad Forry, and admitted to shooting the victim three times. According to Forry, appellant said that he was trying "to shut the nigga up." N.T., 3/5/09, at 2129. Forry described appellant as smiling when he told the story. Bass, Pendleton, and Forry gave the police written statements after appellant and his companions were arrested.
The police arrested appellant, Schrijver, Baker, and Kebede on May 22, 2007. Appellant, Schrijver, and Baker gave the police statements regarding the events of May 2, 2007, and minimized their involvement in the victim's murder. Both Schrijver and Baker identified appellant as the victim's killer. Subsequently, both men provided other statements to the police, again identifying appellant as the shooter. Further investigation by the police also led to the recovery of the murder weapon and ammunition, two pairs of gloves, and the victim's cell phone. No usable fingerprints or DNA were found on the weapon or the plastic bag in which the weapon was wrapped. One pair of gloves revealed Schrijver's DNA; both sets of gloves tested negative for gunpowder residue and blood.
On August 3, 2007, appellant was charged with one count each of criminal homicide, 18 Pa.C.S. § 2501(a); robbery, 18 Pa.C.S. § 3701(a)(1)(i); and criminal conspiracy to commit robbery, 18 Pa.C.S. § 903(a). Appellant was tried before a jury and found guilty of murder in the first degree, robbery, and criminal conspiracy. On March 11, 2009, the jury sentenced appellant to death. The jury found one aggravator, 42 Pa.C.S. § 9711(d)(6) (appellant committed killing while in the perpetration of a felony, i.e., robbery), and no mitigators. The trial court also sentenced appellant to ten to twenty years for robbery, and a consecutive term of ten to twenty years for criminal conspiracy. Appellant filed a direct appeal to this Court on October 2, 2009. The trial court ordered appellant to file a Rule 1925(b) concise statement of matters complained of on appeal, and appellant complied. See Pa.R.A.P. 1925(b). On December 1, 2009, the trial court issued its Rule 1925(a) opinion.
On appeal, appellant raises the following issues:*fn1
1. Whether the evidence presented by the Commonwealth was insufficient as a matter of law to establish [appellant]'s guilt beyond a reasonable doubt on Count 1 -- Murder of the First-Degree, thereby warranting a Judgment of Acquittal and/or vacat[ur of] [appellant]'s conviction on said count.
2. Whether the evidence presented by the Commonwealth in [its] case in chief was insufficient as a matter of law to establish [appellant]'s guilt beyond a reasonable doubt and/or was the verdict against the weight of the evidence, due to the fact that the only evidence presented to establish [appellant]'s guilt beyond a reasonable doubt came from the Commonwealth's key witnesses,
[c]o-defendants, Robert Baker and Lorenzo Schrijver who were admitted liars, guilty of numerous false reports to the investigating officers, extremely biased, contradictory, inconsistent, and highly motivated to lie or fabricate false statements to gain favor with the Commonwealth and were patently unreliable, to such an extent, [that] the Court is compelled to grant a judgment of acquittal and/or a new trial.
3. Whether the evidence presented by the Commonwealth was insufficient as a matter of law to establish [appellant]'s guilt beyond a reasonable doubt on Count 2 -- Robbery, thereby warranting a Judgment of Acquittal and/or vacat[ur of] [appellant]'s conviction on said count and further warranting the vacat[ur] of the sentence of death due to the lack of any aggravating factors to justify the imposition of the death sentence by the jury.
4. Whether the [t]rial [c]court committed reversible error in denying [appellant]'s "Batson[*fn2] challenge" to the Commonwealth's intentional striking of prospective juror #34, a black female who was otherwise a "death penalty qualified juror."
5. Whether [appellant] was denied a fair trial due to the repeated emotional outbursts by the victim's family during critical parts of the trial causing significant jury distraction and significant prejudice to [appellant] and whether the [t]rial [c]court committed error by refusing to remove the disruptive family members after an objection was made to their continued presence in the courtroom without a reprimand or warning from the court to cease any further outbursts.
6. Whether the [t]rial [c]court committed reversible error by allowing the jury to review graphic photographs depicting the victim lying dead under a sheet with body parts sticking out from under the sheet and/or displaying the victim's blood stained clothing, all of which had no evidentiary value but an extreme prejudicial effect on the jury.
7. Whether the [t]rial [c]court committed reversible error by refusing to conduct an evidentiary hearing and issue a ruling on [appellant]'s eligibility to face the death penalty due to his mental retardation, as set forth in the standards and rulings of "Atkins v. Virginia"[*fn3] and Pennsylvania case law prior to the commencement of the jury selection and trial and further compounded the reversible error by refusing to make a judicial determination regarding [appellant]'s mental retardation and allowing the jury to make a post-verdict determination of whether [appellant] was mentally retarded and therefore not eligible for the [d]eath [p]enalty.
8. Whether the trial court failed to properly instruct the jury on the applicable standards regarding mental retardation and the subsequent eligibility of [appellant] to receive the [d]eath [p]enalty.
Appellant's Brief at 6-8. Setting aside the argumentative framing of the questions, appellant raises eight distinct issues: (1) whether the evidence was sufficient to establish first-degree murder; (2) whether the overall verdict of guilt was against the weight of the evidence; (3) whether the evidence was sufficient to establish robbery; (4) whether the trial court erred in denying appellant's Batson challenge to the Commonwealth's peremptory striking of prospective juror #34; (5) whether the trial court erred by refusing to remove from the courtroom, reprimand, or warn the victim's family members for sobbing during the trial; (6) whether the trial court erred in allowing the jury to review photographs of the victim's body and clothing; (7) whether the trial court erred by refusing to decide appellant's Atkins claim prior to jury selection and trial; and (8) whether the trial court failed to instruct the jury properly on the applicable standards of mental retardation. Appellant requests judgment of acquittal on the counts of murder in the first degree and robbery. In the alternative, appellant seeks a new trial or vacatur of his death sentence. We address each issue individually. The record will be developed further infra, as necessary to resolve the issues on appeal.
I. Sufficiency of the Evidence: Murder in the First-Degree*fn4
Appellant's first claim is that the evidence introduced by the Commonwealth at trial was insufficient to establish his guilt on all charges and with respect to first-degree murder specifically. According to appellant, his sufficiency and weight of the evidence claims are "essentially one in the same." Appellant's Brief at 28. In support of both claims, appellant contends that the testimony of his co-defendants Schrijver and Baker was the sole evidence to place him at the scene of the crime, evidence that was unreliable, contradictory, and an insufficient basis for a verdict. Id. at 29 (citing Commonwealth v. Farquharson, 354 A.2d 545 (Pa. 1976) ("[W]here evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding.")). Appellant requests a judgment of acquittal or a new trial. The Commonwealth responds that appellant's sufficiency of the evidence argument is underdeveloped and hinders any meaningful review by the Court. Commonwealth's Brief at 25. According to the Commonwealth, appellant forwards arguments regarding the weight of the evidence, which requires a separate and distinct analysis from a sufficiency claim. Upon review of the record, the trial court concluded that the evidence was sufficient to establish that appellant was guilty of first-degree murder.
On appeal, we agree with the Commonwealth that appellant fails to meaningfully develop his sufficiency claims regarding the first-degree murder and conspiracy convictions.*fn5 See Commonwealth v. DeJesus, 860 A.2d 102, 105-07 (Pa. 2004) (challenge to verdict pursuant to Farquharson is to weight, not sufficiency, of evidence). But, in all capital direct appeals, this Court reviews the evidence to ensure that it is sufficient to support the first-degree murder conviction, whether or not the appellant raises or develops the issue. Commonwealth v. Blakeney, 946 A.2d 645, 651 n.3 (Pa. 2008). We conduct sua sponte review of the sufficiency of evidence only as to the capital first-degree murder verdict and not with regard to any related convictions. Commonwealth v. May, 887 A.2d 750, 753 n.10 (Pa. 2005).
In performing sufficiency review of a first-degree murder conviction, this Court ascertains whether evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish beyond a reasonable doubt all elements of the offense. Id. at 753. Evidentiary sufficiency is a question of law and, therefore, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). First-degree murder is an intentional killing, i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a), (d). The Commonwealth proves a person guilty of first-degree murder by establishing that: (1) a human being was killed; (2) the accused caused the death; and (3) the accused acted with malice and a specific intent to kill. See 18 Pa.C.S. §§ 2501(a), 2502(a), (d); Commonwealth v. Montalvo, 986 A.2d 84, 92 (Pa. 2009); Commonwealth v. Pagan, 950 A.2d 270, 278-79 (Pa. 2008). Furthermore, the jury, as a factfinder, may infer that the accused intended to kill a victim based on the accused's use of a deadly weapon on a vital part of the victim's body. May, 887 A.2d at 753.
At trial, the Commonwealth introduced uncontested forensic evidence and eyewitness testimony that the victim had been shot three times with a small caliber weapon: once in the groin area, once in the chest, and once in the neck/shoulder area. The last two gunshots were fatal and the victim died at the scene. Based on this evidence, the jury properly could conclude that a human being was unlawfully killed, that the killing was with malice, and that the killing was intentional because the deadly weapon was used on vital parts of the victim's body.
With respect to the identity of the murderer, the Commonwealth offered into evidence testimony from co-defendants and eyewitnesses Schrijver and Baker, from Susan Bass and her brother Jeffrey, from appellant's friend Marcus Pendleton, and from appellant's Burger King co-worker Chad Forry. Schrijver and Baker recounted that, on May 2, 2007, together with appellant and Kebede, they drove by the victim's house, planning a robbery. Schrijver rang the doorbell and asked to use the telephone, while the others hid in the shadows on the victim's front porch. When the victim returned with his cell phone, appellant came out of the shadows with his gun pointed at the victim. In the ensuing struggle, appellant shot the victim in the groin. The struggle having ended, and with the victim pleading for his life, appellant coldly backed up and shot the victim again in the chest and neck/shoulder area, thereby causing the victim's death.
Susan Bass's brother testified that he saw appellant and his co-defendants leave the house he shared with his sister and Baker on the night of the robbery; all four men were wearing gloves. Susan Bass stated that she saw appellant and Schrijver handle the murder weapon on the evening of the murder. She also asserted that on May 4, 2007, she heard appellant boast about shooting the victim in the foot, stomach, and head. Finally, Pendleton and Forry testified that appellant admitted to them that he shot the victim. The trial testimony of Bass, Pendleton, and Forry was consistent with statements they had given to police in May 2007, shortly after appellant and his companions were arrested. This evidence was in addition to that of appellant's co-defendants and was on its own sufficient to permit the jury to conclude that appellant shot the victim and caused his death.
The Commonwealth clearly met its burden to prove, beyond a reasonable doubt, that appellant intentionally caused the victim's death. 18 Pa.C.S. §§ 2501(a), 2502(a), (d). Accordingly, the record supports appellant's conviction for murder in the first degree.
II. Weight of the Evidence
Appellant's second claim is that the jury's verdict is against the weight of the evidence. Appellant argues that, although this Court may not substitute its assessment of the witnesses' credibility for that of the jury, the Court should recognize that the verdict in this case was based upon "mere surmise or conjecture." According to appellant, the verdict was premised on the unreliable testimony of "the more culpable defendant" -- Schrijver -"who among other damning pieces of evidence, admitted bringing the gun to the exact scene of the shooting, hiding the gun after the shooting and admittedly lied to the police on so many occasions, about [too] many things" to include in the brief. Appellant's Brief at 28-29 (citing Farquharson, 354 A.2d at 550). Appellant asserts that the prosecution's sole evidence of his participation in the murder was testimony from co-defendants, who had motive to lie and implicate appellant. According to appellant, both Schrijver and Baker were exposed as liars on cross-examination and by Mrs. Diener's testimony.
Appellant states that Mrs. Diener identified only two, not four, males at the scene, both white and who could be brothers, one with facial hair and the other with a bowl cut. According to appellant, Mrs. Diener's description matched Schrijver and Baker, and not appellant. Both co-defendants were corrupt sources of evidence with an incentive to implicate appellant, who had no ties to the victim and no motive to shoot him. Appellant asserts that the verdict is contrary to the weight of the evidence and that, as a result, he is entitled to a judgment of acquittal or a new trial.
The Commonwealth responds that the jury credited the testimony of the co-defendants, both of whom identified appellant as the shooter. Further, other evidence supported the verdict. Chad Forry, appellant's co-worker, testified that appellant bragged to him about shooting the victim. The Commonwealth contends that this Court should defer to the jury, which was in the best position to assess the credibility of witnesses. According to the Commonwealth, an assertion that a different conclusion could have been drawn from the same facts is not sufficient for relief on a challenge to the weight of the evidence. The Commonwealth emphasizes that the verdict was not "irreconcilably contradictory to incontrovertible facts, human experience of the laws of nature or based on mere conjecture." Commonwealth's Brief at 33 (citing Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000)).
The trial court agreed with the Commonwealth. The court reasoned that the jury was instructed that Schrijver and Baker were accomplices and on how the jury should evaluate the testimony of accomplices. According to the trial court, the jury could choose whether to accept or reject Schrijver's and Baker's testimony, and the jury "obviously chose to believe them in this case." The court thus rejected appellant's weight of the evidence argument.
The finder of fact -- here, the jury -- exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence. DeJesus, 860 A.2d at 107. Issues of witness credibility include questions of inconsistent testimony and improper motive. Id. A challenge to the weight of the evidence is directed to the discretion of the trial judge, who heard the same evidence and who possesses only narrow authority to upset a jury verdict. Blakeney, 946 A.2d at 652-53. The trial judge may not grant relief based merely on "some conflict in testimony or because the judge would reach a different conclusion on the same facts." Id. at 653. Relief on a weight of the evidence claim is reserved for "extraordinary circumstances, when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Id. (quotation marks omitted). On appeal, this Court cannot substitute its judgment for that of the jury on issues of credibility, or that of the trial judge respecting weight. DeJesus, 860 A.2d at 107. Our review is limited to determining whether the trial court abused its discretion; the Court's role precludes any de novo consideration of the underlying weight question. Commonwealth v. Vandivner, 962 A.2d 1170, 1178 (Pa. 2009); Blakeney, 946 A.2d at 653.
Here, appellant cites this Court's decision in Farquharson for the proposition that the verdict was "pure conjecture" because it was premised on trial testimony from co-defendants with motives to lie, who were admitted liars, and who provided several versions of the events to the police and at trial. Appellant also emphasizes supposed "inconsistencies" between Mrs. Diener's identification of two perpetrators and the co-defendants' testimony that four persons participated in the murder.
The Farquharson Court indeed stated that "where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding." 354 A.2d at 550. But, the evidence in this case required no jury conjecture. Schrijver and Baker gave direct evidence. Moreover, the evidence was not limited to testimony from the co-defendants. The Commonwealth introduced testimony from other witnesses, i.e., Marcus Pendleton and Chad Forry, who testified that appellant confessed to shooting and killing the victim. This evidence, combined with the physical evidence, proved guilt independently of Schrijver and Baker. Also, the trial statements of Susan Bass, her brother, Mrs. Diener, and the police and forensic investigators corroborated essential parts of Schrijver and Baker's testimony, including that the four men left Bass's house together wearing gloves; that the four men were secretive about the purpose of their outing; that the victim pled for his life; and that the victim was shot in the chest and neck after falling down on the porch. Mrs. Diener confirmed that one of the men was wearing a red shirt, which matched that worn by appellant on the night of the murder. Mrs. Diener also emphasized that she was focused on her fallen husband when she walked onto the porch on May 2, 2007, and that it was her belief there were but two men there only because of their conversation. This testimony corroborates Schrijver's statements that ...