                              [J-37-2018] [MO: Todd, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,                  :   No. 745 CAP
                                                   :
                        Appellee                   :   Appeal from the Judgment of
                                                   :   Sentence entered on April 27, 2017 in
                                                   :   the Court of Common Pleas, Pike
                v.                                 :   County, Criminal Division at No. CP-
                                                   :   52-CR-0000019-2015.
                                                   :
    ERIC MATTHEW FREIN,                            :   ARGUED: May 17, 2018
                                                   :
                        Appellant                  :

                        CONCURRING AND DISSENTING OPINION

JUSTICE WECHT                                                     DECIDED: April 26, 2019
        I join the learned Majority’s fine opinion in all respects, save for Part III, and save

for the Majority’s ultimate disposition denying Eric Frein a new penalty phase hearing.

        Relying principally upon the general presumption that jurors follow a trial judge’s

instructions, the Majority in Part III rejects Frein’s claim that the victim impact evidence

presented to the jury violated his constitutional right to due process of law.1           The

overwhelming victim impact evidence in this case—some of which was not victim impact

evidence at all—exceeded constitutionally permissible limits. In view of the trial court’s

error in this regard, this Court is bound as a matter of constitutional law to vacate Frein’s

death sentence and to remand the case to the trial court for a new penalty phase. Thus,

as to Part III and the Court’s decision not to afford Frein a new sentencing hearing, I

respectfully dissent.

                                        *      *        *



1       See Maj. Op. at 35-36.
        Before delving into the issue of victim impact evidence, I am obliged to address

the viability of Frein’s contention that Pennsylvania State Police (“PSP”) personnel

violated his constitutional rights when they failed to inform him, before he waived his

Miranda2 rights, either: (1) that his parents had retained an attorney to assist him after

he was apprehended; or (2) that this attorney arrived at the PSP barracks during the initial

stages of the interrogation and was nonetheless prevented from accessing him. The

Majority appropriately declines to address this claim in light of its resolution of Frein’s

other suppression issue. See id. at 31 (“[A]ny error by the trial court in refusing to

suppress Appellant’s statement was harmless in light of the overwhelming, properly

admitted, evidence establishing Appellant’s guilt.”).

        I join this aspect of the opinion. Principles of judicial restraint counsel that, in the

ordinary course, this Court should not decide that which is not necessary to resolve a

case.   The prudential choice not to address the Miranda issue here should not be

construed as any holding concerning the substantive viability of a similar challenge in

future cases, nor as an endorsement of the actions undertaken by PSP personnel in this

case. Those actions, which I detail immediately below, raise troubling and significant

constitutional concerns that are not fully resolved or foreclosed by precedents of the

Supreme Court of the United States or this Court.

        On October 30, 2014, Frein’s parents watched local television news coverage of

Frein’s arrest for the murder of PSP Corporal Bryon K. Dickson. When Frein appeared

on the television screen, his parents noticed that he had sustained facial injuries.

Concerned about both Frein’s well-being and his legal rights, Frein’s parents contacted

Attorney James Swetz. Frein’s parents retained Attorney Swetz and asked him to go to

the PSP barracks where Frein was being held, in order to assess Frein’s physical


2       See Miranda v. Arizona, 384 U.S. 436 (1966).


                                [J-37-2018] [MO: Todd, J.] - 2
condition, to invoke Frein’s right to counsel, and to discuss with Frein his right to remain

silent.

          At 8:48 p.m., Attorney Swetz phoned PSP dispatch and told the dispatcher that he

was hired by Frein’s family and that he intended to go to the barracks to intervene before

PSP personnel began to interrogate Frein. The dispatcher responded by providing

Attorney Swetz a relevant telephone number.

          Attorney Swetz dialed that telephone number. A PSP trooper answered the call

and told Attorney Swetz that he would not be granted entry into the barracks, that Frein

was an adult who could make his own decisions, and that, up to that point in time, Frein

had not requested a lawyer. Attorney Swetz replied emphatically, telling the trooper that

he was invoking Frein’s right to counsel, an invocation that he believed would serve to

terminate or forestall the interrogation. The trooper responded by repeating that, if

Attorney Swetz showed up at the barracks, he would not be permitted to enter the

premises, let alone to see Frein.

          Despite the warning, Attorney Swetz drove to the PSP barracks. While en route,

Attorney Swetz received a call from someone at the barracks inquiring as to the time that

he expected to arrive, as well as the make and model of his vehicle. When Attorney

Swetz arrived, he encountered a multitude of PSP troopers, some in camouflage,

standing outside of the barracks. Attorney Swetz approached the troopers and tried to

explain that he was there to invoke Frein’s Miranda rights. He again was told that he was

not permitted to enter the building. He was directed to a parking spot on the side of the

road.

          While parked, Attorney Swetz attempted to reach Pike County District Attorney

Ray Tonkin by telephone. A dispatcher answered the call and took Attorney Swetz’ cell

phone number. Minutes later, two plainclothes troopers approached Attorney Swetz in




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his car and told him that District Attorney Tonkin would return his call shortly. While

Attorney Swetz waited, he telephoned Frein’s father, who told Attorney Swetz that

television news was covering a live press conference, at which it was being reported that

Frein was not represented by counsel. At that point, Attorney Swetz became convinced

that he was not going to be allowed into the barracks, so he drove home.

       At 1:13 a.m., District Attorney Tonkin returned Attorney Swetz’ earlier call. The

purpose of the call was to inform Attorney Swetz that Frein was scheduled for an

arraignment later that morning. District Attorney Tonkin also told Attorney Swetz that the

Commonwealth would file a motion to move the arraignment from a local magisterial

district judge’s office to the Pike County Courthouse. Attorney Swetz informed District

Attorney Tonkin that, due to a previously scheduled court appearance in another county,

he would not be able to attend the arraignment. Attorney Swetz did not appear at the

arraignment. Notably, however, in the Commonwealth’s motion to change the venue of

the preliminary arraignment, District Attorney Tonkin listed Attorney Swetz as Frein’s

counsel of record.

       At no point did anyone tell Frein that his parents had retained Attorney Swetz to

represent him during the interrogation, or that Attorney Swetz was present at the PSP

barracks for that purpose. As well, no one told Corporal Clark, Trooper Mulvey, or ATF

Agent Dressler, all of whom were involved in the interrogation of Frein, that Attorney

Swetz was at the barracks or that Swetz had attempted to invoke Frein’s right to counsel.

Presently, Frein argues that, by failing to inform him of Attorney Swetz’ presence at the

barracks, and by preventing Swetz from accessing him, the Commonwealth and its

agents violated Frein’s Fifth, Sixth, and Fourteenth Amendment rights, as well as his

rights under Article I, Section 9 of the Pennsylvania Constitution.




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       In Moran v. Burbine, 475 U.S. 412 (1986),3 the Supreme Court of the United States

held that similar actions by police officers did not offend either the Fifth or Sixth

Amendments to the United States Constitution. Shortly after Burbine was arrested in

Cranston, Rhode Island in connection with a burglary, police officers discovered

information connecting him to a murder that occurred in Providence, Rhode Island. The

arresting officers contacted officers from Providence and informed them of both their

suspicion that Burbine had committed the murder and the fact that Burbine was in police

custody. Id. at 416. Three Providence police officers drove to where Burbine was being

held, intent upon interrogating him about the murder. Id.

       In the meantime, Burbine’s sister, who was aware only of the burglary arrest,

contacted the local public defender’s office and sought legal representation for her

brother. An attorney from that office called the police station in Cranston where Burbine

was being detained and asked to talk with a detective. Id. at 417. When an unidentified


3      A brief note is in order regarding the short form of citation that I use when I refer to
Moran v. Burbine, 475 U.S. 412 (1986). According to The Bluebook, when using a short
form citation, one should “avoid using the name of a geographical or government unit, a
government official, or a common litigant.” THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION
R. 10.9(a)(i), at 116 (Columbia Law Rev. Ass’n et al. eds., 20 th ed. 2015). At the time
Moran v. Burbine was decided, John Moran was the Superintendent of the Rhode Island
Department of Corrections, i.e., a government official and, likely, a common litigant. Thus,
in compliance with standard Bluebook format, when using the short form citation, I use
“Burbine” rather than “Moran.”
        I note nonetheless that, with regard to Moran v. Burbine, courts generally have not
opted to cite the case as “Burbine.” For instance, in Commonwealth v. Arroyo, 723 A.2d
162 (Pa. 1999), this Court elected to use “Moran” in its short form references to the case.
Similarly, in several instances, Justices of the Supreme Court of the United States also
referred to the case in short form as “Moran.” See, e.g., Montejo v. Louisiana, 556 U.S.
778, 791 (2009); Rothgery v. Gillespie Cty., 554 U.S. 191, 207 (2008); Missouri v. Seibert,
542 U.S. 600, 625 (2004) (O’Connor, J., dissenting); McNeil v. Wisconsin, 501 U.S. 171,
181 (1991). However, in Berghuis v. Thompkins, 560 U.S. 370, 382 (2010), Justice
Kennedy, writing for the majority, elected to use “Burbine” as the title for the short form
citation. Like the Berghuis Court, I use “Burbine,” as that usage aligns most closely with
the applicable Bluebook rule.


                               [J-37-2018] [MO: Todd, J.] - 5
person answered, the attorney stated, among other things, that she would be acting as

Burbine’s attorney in the event that the police interrogated Burbine or placed him in a

lineup. The unidentified person told the attorney that the police would neither interrogate

Burbine that night, nor put him in a lineup. The person indicated that police officers had

ceased their interactions with Burbine for the night. The person neither informed the

attorney that Burbine was a suspect in a murder, nor that the Providence police had

arrived in Cranston to interrogate Burbine about that murder. Burbine was not informed

that his sister had arranged representation, nor that the attorney had contacted the police

on his behalf. Id.

       Despite the representations made to the public defender, the Providence police

conducted a series of interviews with Burbine regarding the murder.          Before each

interview, the police provided Burbine with Miranda warnings. Each time, Burbine waived

his constitutional rights by executing a written Miranda waiver form. At no point did

Burbine change his mind, revoke his waiver, or ask for an attorney. Id. at 417-18. Burbine

confessed to the murder in three written statements, and he was charged accordingly.

Before trial, he moved to suppress the statements on the basis that the police officers’

actions violated his Fifth Amendment privilege against self-incrimination and his Sixth

Amendment right to counsel. The case made its way to the United States Supreme Court,

which granted certiorari to decide “whether a prearraignment confession preceded by an

otherwise valid waiver must be suppressed either because the police misinformed an

inquiring attorney about their plans concerning the suspect or because they failed to

inform the suspect of the attorney’s efforts to reach him.” Id. at 420.

       The Supreme Court rejected both of Burbine’s primary constitutional claims.

Regarding the Fifth Amendment privilege against self-incrimination, the Court first

explained that nothing about the actual Miranda waiver rendered it invalid. Burbine was




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not subjected to deceptive or psychological pressures, nor was there any evidence of

record to suggest that Burbine did not comprehend his rights or the impact of his decision

to relinquish them. The Court then held that an otherwise valid waiver of one’s Miranda

rights is not invalidated by forces unknown to the person in custody. “Events occurring

outside of the presence of the suspect and entirely unknown to him surely can have no

bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”

Id. at 422. The Court acknowledged that “additional information would have been useful”

to Burbine, but the Court had “never read the Constitution to require that the police supply

a suspect with a flow of information to help him calibrate his self-interest in deciding

whether to speak or stand by his rights.” Id. In short, once it is established that the

suspect knew, understood, and waived his applicable rights, including the prerogative to

stop the interrogation by invoking one of those rights, “the [Fifth Amendment] analysis is

complete and the waiver is valid as a matter of law.” Id. at 422-43.

       The Supreme Court also rejected Burbine’s Sixth Amendment challenge. The

Court noted first that the right to counsel included within the Miranda warnings is not a

substantive constitutional right, but instead is a procedural device created to provide an

extra level of protection over a suspect’s Fifth Amendment privilege against self-

incrimination. Id. at 429. The substantive Sixth Amendment right has no application at

the investigative/interrogative stage of the criminal process. The right does not attach

until the government’s role shifts from “investigation to accusation.” Id. at 430. Because

Burbine’s three confessions occurred prior to the initiation of formal criminal proceedings,

the Court found no Sixth Amendment right to be violated. Id. at 432.

       Although it foreclosed Burbine’s claims based upon the Fifth and Sixth

Amendments, the Court nonetheless acknowledged two other potential avenues for relief

in such circumstances: (1) the Due Process Clause of the Fourteenth Amendment; and




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(2) decisions premised exclusively upon state constitutional law. Id. at 428, 432-33. The

Court briefly considered whether Burbine’s due process rights were violated, but held that

the specific facts of the case fell “short of the kind of misbehavior that so shocks the

sensibilities of civilized society as to warrant a federal intrusion into the criminal processes

of the States.” Id. at 433-34. The Court expressly left open the possibility that “on facts

more egregious than those presented here police deception might rise to the level of a

due process violation.” Id. at 433.

       A number of state supreme courts have accepted the Burbine Court’s invitation to

reconsider the issue as a matter of state constitutional law, with some concluding that

such deceptive police behavior violates their respective state constitutions. See, e.g.,

State v. Reed, 627 A.2d 630, 646 (N.J. 1993) (holding that “the failure of the police to

inform defendant that an attorney was present and asking to speak with him violated

defendant’s State privilege against self-incrimination”); State v. Stoddard, 537 A.2d 446,

451-55 (Conn. 1988) (holding that the Due Process Clause of the Connecticut

Constitution imposes a duty upon police officers to act reasonably, diligently, and

promptly to inform a suspect that an attorney presently is making efforts to offer legal

assistance).

       Our Court has addressed the question only once, in Commonwealth v. Arroyo, 723

A.2d 162 (Pa. 1999). There, we did not resolve the issue in a manner that would preclude

a future challenge. Quite the opposite. In Arroyo, police officers interviewed Arroyo

regarding his suspected role in the death of his eight-month-old son. Id. at 164. The

police provided Arroyo with a standard Miranda warnings form, which Arroyo understood

and signed. Arroyo eventually admitted to punching his son in the chest and stomach

several times. During the interrogation, an attorney retained by Arroyo’s girlfriend called

the police station and asked to speak with Arroyo, seeking specifically to ask Arroyo




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whether he desired the attorney’s assistance during questioning. The police refused to

put the attorney in contact with Arroyo and never informed Arroyo that the attorney had

attempted to contact him. Id.

       Arroyo challenged the police conduct under the Pennsylvania Constitution,

asserting violations of his right against self-incrimination, his right to due process, and his

right to counsel. Ultimately, this Court only addressed substantively (and extensively)

Arroyo’s right to counsel claim, holding that Pennsylvania’s Article I, Section 9 right to

counsel is coterminous with the Sixth Amendment right to counsel, and, therefore,

provides no greater protection at the investigative/interrogatory stage of the criminal

process. Id. at 170.

       Arroyo’s remaining constitutional claims did not receive detailed, substantive

treatment. Rather, this Court rejected both claims essentially on procedural grounds. As

to self-incrimination, this Court observed that Arroyo “pa[id] scant attention” to this

argument in his brief. Id. at 166. This Court then criticized Arroyo for “utterly fail[ing] to

take cognizance of the fact that this [C]ourt has repeatedly stated that . . . the provision

in Article I, § 9 which grants a privilege against self-incrimination tracks the protection

afforded under the Fifth Amendment.” Id. Essentially, this Court dismissed Arroyo’s self-

incrimination argument as substantively undeveloped, and for failing to provide an

analysis under Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), that might support

any effort to distinguish our Constitution from its federal counterpart. Lacking such

advocacy, this Court declined to deviate from the existing parallel jurisprudence under the

United States Constitution. Arroyo, 723 A.2d at 167.

       Arroyo’s due process challenge met a similar fate. This Court explained that

Arroyo’s “references to a due process violation are hopelessly intertwined with his




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argument that his right to counsel was denied.” Id. Accordingly, this Court refused to

“separate it out and, in effect, raise an issue for him sua sponte.” Id.

       In the two decades since Arroyo, we have not had an opportunity to address

substantively the questions that our decision left open. As I read Arroyo, this Court did

not resolve with precedential finality whether the police action (or inaction) at issue in this

line of cases violates a suspect’s Pennsylvania constitutional privilege against self-

incrimination. To be sure, the question superficially is governed by the general parallelism

heretofore recognized between the applicable state and federal constitutional provisions.

However, the coterminous nature of these provisions remains susceptible to a

comprehensive Edmunds analysis, one that the Arroyo Court did not engage in

substantively due to Arroyo’s briefing inadequacies.           Unless and until this Court

undertakes an Edmunds review, I view the issue as ripe for reconsideration, particularly

in light of Burbine’s invitation to state courts to consider the issue under the independent

protections afforded by state constitutions.

       Similarly, due process remains a viable avenue to test the constitutionality of this

type of police conduct. We resolved Arroyo’s due process claim with no more finality than

his self-incrimination challenge, as Arroyo did not develop the claim in a meaningful way

that would permit this Court to address it substantively. Additionally, in Burbine, the

United States Supreme Court rejected a federal due process challenge only as to the

facts of that case, and expressly left open the possibility that other facts could give rise to

such a challenge. Burbine, 475 U.S. at 432-33.

       From my perspective, a due process challenge could be particularly compelling.

We have in the past explained that “[t]he due process inquiry, in its most general form,

entails an assessment as to whether the challenged proceeding or conduct offends some

principle of justice so rooted in the traditions and conscience of our people as to be ranked




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as fundamental and that defines the community's sense of fair play and decency.”

Commonwealth v. Kratsas, 764 A.2d 20, 27 (Pa. 2001) (internal citations and alterations

omitted). “Substantive due process is the esoteric concept interwoven within our judicial

framework to guarantee fundamental fairness and substantial justice[.]” Khan v. State

Bd. of Auctioneer Exam'rs, 842 A.2d 936, 946 (Pa. 2004) (internal citation omitted).

       Miranda warnings are not mandated by the text of any of the amendments

contained in the Bill of Rights. Nonetheless, in Dickerson v. United States, 530 U.S. 428

(2000), the Supreme Court recognized that “Miranda announced a constitutional rule.”

Id. at 444. A primary purpose of that rule is “to [e]nsure that the [suspect’s] right against

compulsory self-incrimination is protected.” New York v. Quarles, 467 U.S. 649, 654

(1984) (internal citation omitted). “The purpose of the Miranda warnings [] is to dissipate

the compulsion inherent in custodial interrogation and, in so doing, guard against

abridgment of the suspect’s Fifth Amendment rights.” Burbine, 475 U.S. at 425. One

way in which the warnings attempt to mitigate the coercive atmosphere of police

interrogation is by clearly informing the suspect that he or she has the right to an attorney

to assist in the decision of whether to surrender the right not to incriminate himself or

herself. Another is by permitting the suspect to stop the interrogation at any time to invoke

the right to silence or to speak with an attorney.

       It is difficult to square the right to counsel as afforded by Miranda, and the

fundamental fairness required by due process, with the actions undertaken by PSP

personnel in this case. It strikes me as starkly ironic that a suspect is (and must be)

informed that he may have an attorney to help him make the decision of whether to

cooperate with the police, yet need not be told that in fact an attorney has arrived on the

premises seeking to do exactly that. Irony aside, a substantial question remains as to

whether what happened at the PSP barracks in this case comports with any conception




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of fundamental fairness, let alone the robust one heretofore recognized in Pennsylvania.

See generally, Commonwealth v. Brown, 52 A.3d 1139, 1162 (Pa. 2012).

       Here, Frein was informed that he had the right to consult an attorney before waiving

his constitutional rights. What he did not know was that Attorney Swetz was at the

barracks ready and willing to assist him but was prohibited from going inside the building.

Before Frein waived his rights, no one told him that, although District Attorney Tonkin

would recognize Attorney Swetz as Frein’s counsel of record, agents of this

Commonwealth would not allow that lawyer actually to fulfill the function envisioned for

counsel in Miranda. Frein was advised that he could stop the interrogation at any time,

but he did not know that, if he did so, there was an attorney on the premises, hired by his

parents, ready and waiting to advise him. Due process mandates adherence to fair play

and decency. I find it quite difficult to believe that, under paradigms of criminal justice

prevailing today, the police conduct surrounding Attorney Swetz and Frein’s interrogation

can be reconciled with substantive norms of fair play and decency. What the PSP

personnel did in this case was actively prevent Frein from receiving that to which he

constitutionally was entitled. There is nothing fair about that. The ends do not justify the

means.

       As I noted at the outset, the Majority declines to address these claims due to the

posture of this particular case, and I join the Court’s opinion in that regard. Nonetheless,

I note that a challenge to such law enforcement tactics remains viable under the

Pennsylvania Constitution. Neither Burbine nor Arroyo permanently foreclosed judicial

review of such conduct. At the very least, five decades after Miranda, police action that

prevents an attorney from accessing a client, particularly during the inherently coercive

process of a custodial interrogation, should be consistently discouraged as a matter of

law enforcement practice, even apart from the dubious constitutionality of such conduct.




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                                      *      *      *

       I return now to Frein’s challenge to the quantity and nature of the victim impact

evidence proffered by the Commonwealth during the penalty phase of this case. Frein

acknowledges that the Commonwealth’s presentation began with “traditional victim

impact” evidence, but asserts that it “soon crossed the line and developed into emotionally

charged, cumulative, and much more prejudicial than probative” evidence, violating his

constitutional right to “fairness and due process.” Brief for Frein at 39. Presumably

anticipating the application of the general presumption that a jury follows a trial court’s

instructions, Frein argues that “[e]xceptions to the assumption that juries hear and follow

instructions do exist[,]” particularly when the evidence at issue is so “overpowering,

emotional, [and] highly prejudicial” that the “practical and human limitations of the jury

system cannot be ignored.” Id. at 42. Frein insists that this is in fact such a case, one in

which the presumption must yield to the unavoidable effect of the victim impact evidence.

After close review, I am constrained to agree.

       “Pennsylvania jurisprudence favors the introduction of all relevant evidence during

a capital sentencing proceeding[.]” Commonwealth v. Eichinger, 915 A.2d 1122, 1139

(Pa. 2007). This includes victim impact evidence. Victim impact evidence technically is

irrelevant to any of the aggravating factors that the Commonwealth may seek to prove in

support of a death sentence. See Commonwealth v. Rios, 920 A.2d 790, 807 (Pa. 2007),

overruled on other grounds by Commonwealth v. Tharp, 101 A.3d 736 (Pa. 2014); 42

Pa.C.S. § 9711(d)(1-18). Nonetheless, courts have determined that the evidence is

admissible at the penalty phase in capital cases, in part, to enable the jury to know and

understand the “victim’s uniqueness as an individual human being.” Payne v. Tennessee,

501 U.S. 808, 823 (1991); Commonwealth v. Flor, 998 A.2d 606, 633 (Pa. 2010).




                             [J-37-2018] [MO: Todd, J.] - 13
       Victim impact testimony often is raw and heartrending. It can stir passions in a

way that is not generally permitted for a jury’s consideration in our system of criminal

justice due to the potential that the emotional impact of such testimony either can

prejudice the jury or distract it from the issues that must be resolved in the particular case.

Nevertheless, at the sentencing phase of a capital case, “a criminal defendant does not

have the right to have all evidence presented against him at trial sanitized of anything that

could cause jurors to sympathize with the victim or his family.” Rios, 920 A.2d at 807.

“Testimony that is a personal account describing the devastating impact the murders had

on the surviving families is wholly appropriate and admissible at the sentencing phase of

a capital case.” Commonwealth v. Baumhammers, 960 A.2d 59, 93 (Pa. 2008) (internal

citation omitted).

       Victim impact evidence is defined by statute as “evidence concerning the victim

and the impact that the death of the victim has had on the family[.]” 42 Pa.C.S. §

9711(a)(2). By its terms, the statute establishes two categories of evidence that fall within

the definition: (1) evidence about the victim as an individual; and (2) evidence regarding

how the victim’s death impacted his or her family. See Flor, 998 A.2d at 634. Section

9711(a)(2) does not grant a prosecutor carte blanche authority to submit evidence about

every person or place upon which the victim had an impact. “Victim impact testimony is

permissible when the Commonwealth establishes that the victim's death had an impact

on the victim's family as opposed to presenting mere generalizations of the effect of the

death on the community at large. Once this threshold has been met, the trial court has

discretion over the testimony admitted.” Eichinger, 915 A.2d at 1139-40. Freed from

such limits, the focus of capital sentencing hearings would be on the victim and not upon

the aggravating and mitigating circumstances that the General Assembly has required




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jurors to weigh in order to decide whether to impose the death penalty upon the person

convicted.

       In Payne, the United States Supreme Court explained that victim impact evidence

conveys to the jury that “the victim is an individual whose death represents a unique loss

to society and in particular to his family.” Payne, 501 U.S. at 825 (internal citation

omitted). Notably, our General Assembly chose not to adopt so broad an understanding

of victim impact evidence when it enacted Section 9711(a)(2), a provision that does not

encompass the societal impact resulting from the victim’s death. On occasion, we have

permitted, within the context of admissible victim impact evidence, statements that related

to circumstances beyond the two statutory classes. For instance, in Commonwealth v.

Singley, 868 A.2d 403 (Pa. 2005), we considered as permissible victim impact evidence

a statement that concerned the impact that the victim’s death had at his job. The victim's

fiancée explained that the victim's boss shut down the business for a few days after the

victim's murder. The victim’s boss also asked the fiancée to participate in an award

ceremony recognizing the victim. Id. at 415. We explained that the victim’s fiancée did

not relay the information in a vacuum, but presented it in the context of the fiancée's

involvement in the award ceremony and her family relationships after the victim's death.

Id. We did not create—nor could we—an expansive exception to the statute that would

permit evidence pertaining to a victim’s impact on society, on his or her employer, or on

anyone other than his or her family.

       Before examining some of the victim impact evidence introduced to the jury in this

case, it is important to recognize the juncture at which the jury receives such proof. The

Commonwealth opens the evidentiary aspect of the capital sentencing hearing by offering

evidence related to the proffered aggravating circumstances and to victim impact, if it so

chooses, in its case-in-chief. However, because the sentencing phase of a death penalty




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trial principally entails proof and consideration of aggravating and mitigating

circumstances, the role of victim impact evidence necessarily is secondary.              That

evidence can be used by the jury only after it determines that at least one aggravating

and at least one mitigating factor have been proven, such that the jury now is set to weigh

those factors against one another. The jury is instructed that, if it finds no mitigating

factors, it is not to consider the victim impact evidence at all.

       The difficulty that this formula presents is patent and obvious. The jury hears and

sees the emotionally compelling victim impact evidence before it decides whether (and

which) aggravating and mitigating factors exist. The jury is told to ignore that victim impact

evidence temporarily, an instruction that would challenge even the most austere and

detached juror, until the jury completes its primary task. Where, as here, the victim impact

evidence is extensive and overwhelming, ignoring that evidence, even momentarily,

becomes even more challenging. Jurors hear and see intensely emotional evidence, but

then are told that they cannot let that evidence influence their initial decisions as to the

existence of aggravating and mitigating factors. But this is the regime created by our

General Assembly. It is accordingly the sequence that the trial court directed the jury to

follow in this case.. We must bear this evidentiary sequence and order of proof in mind

when we consider whether a particular body of victim impact evidence improperly

influenced a jury’s decision.     In my view, this statutorily-prescribed sequence has

particular relevance to this particular case, a case in which, as I describe below, the victim

impact evidence that the court admitted was overwhelming, to an unconstitutional degree.

       Critically, Frein’s claim is not premised upon whether any specific item of evidence

may, or may not, have exceeded the statutory limitations. Rather, he seeks relief on

constitutional grounds. More specifically, Frein contends that, both as to quantity and

nature, the trial court’s admission of the victim impact evidence was not only an error of




                              [J-37-2018] [MO: Todd, J.] - 16
law or an abuse of discretion, but, more importantly, a violation of his right to due process,

a claim that the Supreme Court of the United States has recognized as viable. In Payne,

the high Court held that “the Due Process Clause of the Fourteenth Amendment provides

a mechanism for relief” when victim impact evidence “is introduced that is so unduly

prejudicial that it renders the trial fundamentally unfair[.]” Payne, 501 U.S. at 825. Having

reviewed the record closely, I conclude that such circumstances are present here.

       The Majority recognizes that the victim impact evidence proffered by the

Commonwealth in this case was “extensive.” Maj. Op. at 32. But this characterization is

an understatement. On April 20, 2017, the sentencing phase of Frein’s trial commenced.

In support of its proposed aggravating factors, the Commonwealth incorporated the

entirety of the trial testimony into the sentencing record, a common (and judicially

appreciated) effort that avoids duplicative and lengthy witness examinations during the

Commonwealth’s case-in-chief at the penalty phase.              Then, the Commonwealth

commenced presentation of its victim impact evidence. The Commonwealth’s proof was

not limited in scope or in duration. The Commonwealth introduced testimony from ten

different witnesses, each of whom provided sensitive or passionate information for the

jury to consider. The jury heard this testimony over the course of two days. The

witnesses included Corporal Dickson’s wife, sister, mother, and father. A number of

Corporal Dickson’s fellow PSP troopers also testified. The Commonwealth presented to

the jury over thirty photographs showing Corporal Dickson at graduations, on vacations,

and with his children and nephew, as well as a video of Corporal Dickson interacting with

his family. The Commonwealth also played for the jury a fifteen minute film of Corporal

Dickson’s graduation ceremony from the Pennsylvania State Police Academy, a film that

included several speeches by law enforcement personnel.




                              [J-37-2018] [MO: Todd, J.] - 17
      The constitutional difficulty in this case arises not because some of this evidence

may have exceeded Section 9711(a)(2)’s statutory limits.4          The presentation was

problematic because the amount and the substance of that evidence, taken as a whole,

overwhelmingly infected the fairness of the sentencing proceeding, in violation of Frein’s

due process rights. As noted, the Commonwealth introduced over thirty photographs.

Many of the photographs depicted Corporal Dickson at various points in his life and with

members of his family. Other photographs did not.5

4      I disagree with Justice Donohue’s suggestion that Frein cannot succeed on his
due process claim because he did not object to some of the Commonwealth’s evidence
on statutory grounds. C.O. at 5-6. The constitutional and statutory claims are distinct.
The viability of one is not dependent upon taking any action relative to the other.
        Frein’s due process claim rests upon both the quantity and the quality of the
evidence presented by the Commonwealth. As a general matter, the success of a
constitutional claim does not depend upon statutory objections. Justice Donohue may be
correct that Frein’s best argument would have been that some of the evidence did not
meet the statutory definition of victim impact evidence. See C.O. at 6 n.2. That does not
change the fact that objecting to the admissibility of evidence on statutory grounds is not
a prerequisite to a due process claim. I am not aware of any precedent that requires a
defendant to take such an action. The cases cited by Justice Donohue, Commonwealth
v. Eichenger, 915 A.2d 1122 (Pa. 2007), and Commonwealth v. Means, 773 A.2d 143
(Pa. 2001), stand only for the general principle that a trial court is endowed with the
authority and discretion to govern the admission of evidence, and that, even with regard
to victim impact evidence, the court may exclude unduly prejudicial information. These
cases do not require a defendant to object to potentially prejudicial material on statutory
grounds before a constitutional challenge can ripen.
       It may well be that, from Frein’s perspective, the best course of action would have
been to object on both constitutional and statutory grounds. However, whether tactical
decision or blunder, Frein’s counsel did not raise any statutory objections. Failure to do
so does not defeat or extinguish an otherwise valid due process claim, nor does it render
the record any less prejudicial for such purpose. The Commonwealth either violated
Frein’s due process rights, or it did not. That inquiry is a constitutional question, not a
statutory one.
5       For example, the Commonwealth introduced photographs of Tiffany Dickson,
Corporal Dickson’s widow, in her nursing uniform as a student, at her nursing school
graduation, and with her sons on the beach. These latter photographs do not concern
the victim or the impact that his death had on his family. Rather, they served unavoidably
to elicit human sympathy for Tiffany Dickson in any juror. There was also a photograph



                             [J-37-2018] [MO: Todd, J.] - 18
       As I view the record, it is clear that the number and the nature of the photographs

presented to the jury overwhelmed the statutory purpose of victim impact evidence and

created instead a passionate and emotional impression that was difficult, if not

impossible, for any juror to set aside, even after a trial court’s instruction. It is no easy

task that we ask jurors to perform in death penalty cases. They are required to hear all

of the victim impact testimony, but then to ignore it until ascertaining whether any

aggravating or mitigating circumstances have been established. Standing alone, many

of these photographs constitute fair and admissible victim impact evidence, capable of

measured consideration by a jury. In the aggregate, however, the photographs are

overwhelming, and they contribute to my conclusion that the extent of the victim impact

evidence created a very real possibility of unfair prejudice.

       But let us set aside the emotionally powerful photographs for now, because there

is more. And, from a due process perspective, it is these additional items that tip the

matter quite far over the constitutional brink. These other aspects of the Commonwealth’s

victim impact evidence exceeded any reasonable bounds for such proof, and indeed did

of the Dicksons on their honeymoon, which appears to have less to do with the impact of
Corporal Dickson’s death than it does to create a photographic, emotional history of the
Dicksons’ relationship.
        The Commonwealth also introduced numerous photographs of Corporal Dickson’s
children. Those photographs depicted the following: Corporal Dickson and Tiffany
Dickson with their elder son at the beach; Corporal Dickson and his eldest son holding
his younger son shortly after his birth; Corporal Dickson teaching both children how to
sing a children’s song; the boys in Halloween costumes; the boys wearing Corporal
Dickson’s uniform; Corporal Dickson and his sons at the beach; Corporal Dickson
teaching his eldest son to fish; Corporal Dickson assembling a play set with both boys;
Corporal Dickson with his sons at the ceremony where he was promoted to Corporal;
Corporal Dickson with his youngest son on a cruise ship; Corporal Dickson’s oldest son
in front of his casket; and Tiffany Dickson and both sons with Corporal Dickson’s uniform
on Mother’s Day. Some of these photographs undeniably conveyed to the jury the fact
that the children no longer had a father as a result of Frein’s crime, normally a valid
statutory purpose. Some of the photographs went further afield, such as the children
alone in Halloween costumes or wearing their father’s trooper uniform.


                              [J-37-2018] [MO: Todd, J.] - 19
not constitute fair victim impact evidence at all. One of the most pronounced examples

occurred during Tiffany Dickson’s testimony. She described in detail for the jury the

complications that she endured during the birth of the couple’s second child.          The

description was impactful and powerful. In this context, it was also unduly prejudicial. The

delivery-related complications led to Tiffany. Dickson being placed under anesthesia.

When she awoke, she learned that Corporal Dickson had held his newborn son to her

breast for feeding while she was unconscious. The obvious point of the testimony was to

provide another example of Corporal Dickson performing a worthy act for his family,

which, again, normally is not inadmissible or otherwise problematic for victim impact

evidence purposes. However, the striking and graphic testimony concerning the child’s

delivery that preceded Corporal Dickson’s involvement carried with it too great a

potentiality to prejudice the emotions of average (indeed, any) jurors. Such testimony

can serve only to inflame the passions of those called upon to decide between life and

death.6

       The Commonwealth also played the film of Corporal Dickson’s graduation

ceremony from the Pennsylvania State Police Academy, a ceremony that occurred in

2007.7 This film, which I have reviewed closely, included a speech by Mark Tranquilli,

Esquire, who was then a Deputy District Attorney and the chief homicide prosecutor for



6       I agree with the Majority that Tiffany Dickson’s recollection of the delivery of her
child was consistent with that which many women experience. I intend nothing here to
downplay or disparage that experience. The Majority misses my point. My point is that,
as the Majority puts it, the testimony was indeed “vivid,” M.O. at 33-4 n.23, and it was
“vivid” to such a degree that I am not convinced that the jury was permitted to perform its
weighty function according to the sober dictates of due process. This is particularly so in
light of the fact that Tiffany Dickson’s emotional testimony must be considered in
conjunction with the rest of the Commonwealth’s evidence.
7      See N.T., 4/21/2017, at 80-81, Exh. 574.



                             [J-37-2018] [MO: Todd, J.] - 20
Allegheny County.8 Attorney Tranquilli’s speech was moving, articulate, and powerful.

The speech also was wholly irrelevant and exceptionally prejudicial here. The speech

was not victim impact evidence at all.      It was error for the trial court to allow the

Commonwealth to play the speech for this jury. Extolling the virtues and values of law

enforcement, Attorney Tranquilli commended the graduating PSP troopers for entering

the “war . . . between servants of light and the forces of darkness.” Attorney Tranquilli

then detailed the facts of an ambush murder of a PSP corporal by a drug dealer, a case

that Attorney Tranquilli had recently, successfully prosecuted. Attorney Tranquilli used

the story to highlight the bravery and valor displayed by the murdered PSP corporal, and

he challenged the new graduates to be the same type of dedicated and courageous law

enforcement officer. Considering that the instant case also involved the ambush murder

of a law enforcement officer (indeed, a fellow PSP corporal), and that Attorney Tranquilli’s

2007 speech did not concern Corporal Dickson or the impact that Corporal Dickson’s

subsequent death had on his family, the screening of the speech served only to arouse

and inflame the emotions and passions of the jury.

       It may be that, viewed item by item and in isolation, much of the victim impact

evidence was relevant and admissible as such. But our inquiry does not end there. When

considered together in light of the sentencing phase as a whole, the victim impact

evidence was so emotionally overpowering, and so extensive, that it necessarily inhibited

the ability of this jury fairly to assess this case.    The effect of this evidence was

transformative. The victim impact evidence no longer was secondary—an aid in the jury’s

ultimate deliberation.   Instead, whether by the quantity of emotionally evocative

photographs, the graphic childbirth description, the irrelevant, and inarguably prejudicial


8     The Honorable Mark Tranquilli now serves as a Judge of the Court of Common
Pleas of Allegheny County.


                             [J-37-2018] [MO: Todd, J.] - 21
speech by Attorney Tranquilli, or a combination of all these things, it is impossible not to

conclude that the victim impact evidence took on the predominant evidentiary role for the

Commonwealth.       It far exceeded, in quantity and quality, the inquiry concerning

aggravating and mitigating circumstances upon which the death penalty decision

principally (and statutorily) depends. The extent and nature of the victim impact evidence

in this case displaced the calculus designed and prescribed by our death penalty statute

and, indeed, rendered that statute’s provisions functionally irrelevant.

       At minimum, there existed a strong likelihood that the victim impact evidence was

so extensive, and so emotionally charged, that it prejudiced the jury to the degree that the

jurors were incapable fairly of assessing the existence of aggravating and mitigating

factors. For this reason, I am compelled to disagree with the Majority’s holding that the

general presumption that juries follow a trial court’s instructions sufficed to ensure that

the jury here was not influenced by this overwhelming body of emotional evidence. A

presumption of the kind that the Majority invokes serves as the starting point of the

analysis; it is not the entirety of that analysis. The presumption is not irrebuttable, else

there would be no limit to the Commonwealth’s ability to present victim impact evidence,

so long as the trial court provided the instruction. A litigant always can attempt to

demonstrate that an instruction was incapable of curing any defect, and that the general

presumption should not apply. In my view, this is one of the rare cases in which that

occurred.

                                      *      *      *

       I would hold that the victim impact evidence was of such a quantity and character

that, even considering the trial court’s instruction to the jury, the resultant prejudice

rendered the proceeding fundamentally unfair. See Payne, 501 U.S. at 825. Our death

penalty system requires the jury to hear victim impact evidence before determining




                             [J-37-2018] [MO: Todd, J.] - 22
whether aggravating and mitigating factors were established.         Where, as here, the

evidence was so prejudicial as to constitute a due process violation, the core deliberative

process necessarily was tainted and the error in permitting such extensive evidence was

not harmless. Frein is entitled to a remand for a new sentencing hearing. As the Majority

holds otherwise, I respectfully dissent as to Part III of its opinion and as to the ultimate

decision not to afford Frein a new sentencing hearing.




                             [J-37-2018] [MO: Todd, J.] - 23
