             [J-58A-2018, J-58B-2018 and J-58C-2018] [MO: Todd, J.]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,            :   No. 756 CAP
                                         :
                   Appellee              :   Appeal from the Judgment of
                                         :   Sentence entered on December 9,
                                         :   2016, in the Court of Common Pleas,
             v.                          :   Philadelphia County, Criminal Division
                                         :   at No. CP-51-CR-0002231-2015.
                                         :   (Post Sentence Motions denied on
TAM M. LE,                               :   May 30, 2017.)
                                         :
                   Appellant             :   ARGUED: September 25, 2018

COMMONWEALTH OF PENNSYLVANIA,            :   No. 757 CAP
                                         :
                   Appellee              :   Appeal from the Judgment of
                                         :   Sentence entered on December 9,
                                         :   2016, in the Court of Common Pleas,
             v.                          :   Philadelphia County, Criminal Division
                                         :   at No. CP-51-CR-0002232-2015.
                                         :   (Post sentence motions denied on
TAM M. LE,                               :   May 30, 2017.)
                                         :
                   Appellant             :   ARGUED: September 25, 2018

COMMONWEALTH OF PENNSYLVANIA,            :   No. 758 CAP
                                         :
                   Appellee              :   Appeal from the Judgment of
                                         :   Sentence entered on December 9,
                                         :   2016, in the Court of Common Pleas,
             v.                          :   Philadelphia County, Criminal
                                         :   Division, at No. CP-51-CR-0002233-
                                         :   2015. (Post sentence motions denied
TAM M. LE,                               :   on May 30, 2017.) (Same criminal
                                         :   episode pursuant to Pa.R.A.P.
                   Appellant             :   702(b).)
                                         :
                                         :   ARGUED: September 25, 2018
                       CONCURRING AND DISSENTING OPINION


JUSTICE WECHT                                                     DECIDED: May 31, 2019
       I join in the Majority’s rejection of Tam Le’s guilt phase claims.

       I respectfully dissent from the Majority’s decision to deny Le penalty phase relief.

A juror who automatically will vote for the death penalty is not impartial.1 It has long been

established that a defendant is entitled to inquire into venirepersons’ ability to impose a

sentence based upon the facts of the case and the trial court’s instructions.2 As a matter

of law, a defendant may pose questions designed to uncover bias tied to critical facts that

may be so influential that prospective jurors will be unable to render a fair and impartial

verdict despite following the court’s instructions.

       In this capital case, Le sought to question prospective jurors concerning Le’s prior

conviction for voluntary manslaughter. The trial court refused. The Majority upholds this

refusal. In my view, the right to an impartial jury warrants reversal. This result flows

inexorably from the principle that case-specific questions are often essential to satisfying

the requirement of an impartial jury.

       “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison,

349 U.S. 133, 136 (1955). The Sixth Amendment and the Fourteenth Amendment require

the impartiality of any jury empaneled in a criminal case. Morgan v. Illinois, 504 U.S. 719,

727-28 (1992); Turner v. Louisiana, 379 U.S. 466 (1965); Irvin v. Dowd, 366 U.S. 717

(1961). The primary means by which we ensure a defendant’s right to an impartial jury

is through voir dire. Without adequate voir dire, the trial court is unable to remove

prospective jurors who will not be impartial. Morgan, 504 U.S. at 729. Due process

1      Morgan v. Illinois, 504 U.S. 719, 729 (1992).
2       Id. at 723 (holding that the defendant was entitled to life-qualify the venire by asking
“[i]f you found [the defendant] guilty, would you automatically vote to impose the death
penalty no matter what the facts are?”).

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requires that voir dire be sufficiently flexible to allow the parties and the trial court to ferret

out bias on the part of prospective jurors. Rosales–Lopez v. United States, 451 U.S. 182,

188 (1981). For this reason, the trial court’s exercise of discretion in supervising voir dire

is subject to the essential demands that fairness imposes. Morgan, 504 U.S. at 730

(quoting Aldridge v. United States, 283 U.S. 308 (1931)).

       In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court of the United States

held that “the proper standard for determining when a prospective juror may be excluded

for cause because of his or her views on capital punishment . . . is whether the juror’s

views would prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’” Id. at 424 (quoting Adams v. Texas, 448

U.S. 38, 45 (1980)). A juror who will never vote for capital punishment is not impartial,

and must be removed for cause. Morgan, 504 U.S. at 728. Likewise, a juror who will

vote to impose death automatically in every case of first-degree murder must be removed

for cause. Id. at 728-29, 732-33. As the United States Supreme Court has explained,

       A juror who will automatically vote for the death penalty in every case will
       fail in good faith to consider the evidence of aggravating and mitigating
       circumstances as the instructions require him to do. Indeed, because such
       a juror has already formed an opinion on the merits, the presence or
       absence of either aggravating or mitigating circumstances is entirely
       irrelevant to such a juror. Therefore, based on the requirement of
       impartiality embodied in the Due Process Clause of the Fourteenth
       Amendment, a capital defendant may challenge for cause any prospective
       juror who maintains such views. If even one such juror is empaneled and
       the death sentence is imposed, the State is disentitled to execute the
       sentence.
Morgan, 504 U.S. at 729.

       In Morgan, the Court addressed a defendant’s right to inquire as to a prospective

juror’s impartiality concerning capital sentencing in the event of a first-degree murder

verdict. The concern for fundamental fairness that underlies the right to an impartial jury,

and which animated the decision in Morgan, necessitates that a defendant be permitted


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to inquire as to whether a prior conviction would prevent a prospective juror in a capital

case from following the law in accord with her oath and the trial court’s instructions.

       Morgan’s rationale was that the presence of mitigating circumstances is irrelevant

to a juror who automatically would impose the death penalty. The presence of mitigating

circumstances similarly would be irrelevant to a juror who believes that a defendant who

has a voluntary manslaughter conviction automatically must receive the death penalty.

Such a juror ultimately would fail to perform his or her duties to weigh evidence neutrally

and objectively in accord with the trial court’s instructions and the juror’s oath.        A

defendant’s right to an impartial jury is nullified if the defendant is prohibited from

identifying those potential jurors who would always impose the death penalty upon

learning that the defendant already has another conviction. By barring the requested

questioning at voir dire, the trial court here created a risk that at least one juror who

automatically would vote to impose a sentence of death on a defendant with a prior

manslaughter conviction was empaneled and acted upon those views, thereby violating

Le’s due process right to an impartial jury.

       A multitude of jurisdictions have recognized that the right to an impartial capital

jury requires voir dire that is not limited to whether the prospective juror would consider a

life sentence following a first-degree murder verdict. Both federal and state courts have

held that case-specific questioning of prospective jurors during voir dire is appropriate.

See, e.g., United States v. Johnson, 366 F.Supp.2d 822, 840 (N.D. Iowa 2005) (defining

“case-specific” questions as “questions that ask whether or not jurors can consider or

would vote to impose a life sentence or a death sentence in a case involving stated facts,

either mitigating or aggravating, that are or might be actually at issue in the case that the

jurors would hear”); see also Ellington v. State, 735 S.E.2d 736, 750 (Ga. 2012) (holding

that the trial court erred in precluding voir dire questioning of prospective jurors as to




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whether they would automatically impose the death penalty, as opposed to fairly

considering all of the sentencing options, in a case involving the murder of young

children); United States v. Fell, 372 F.Supp.2d 766, 773 (D. Vt. 2005) (holding that

defense counsel could ask prospective jurors whether they could fairly weigh aggravating

and mitigating circumstances given the existence of certain case-specific facts, as long

as the primary purpose was to ensure impartiality); People v. Cash, 50 P.3d 332, 342-43

(Cal. 2002) (holding that the defense should have been permitted to inquire during voir

dire as to whether prospective jurors automatically would vote for the death penalty if the

defendant had previously committed another murder).

       In accepting Le’s argument in this regard, I am persuaded by a distinction drawn

by the courts in Johnson, Fell, Ellington, and Cash. Johnson distinguished between case-

specific questions, which the court defined generally to encompass particular facts that

will be at issue in the case, and “stake-out” or “pre-commitment questions,” which the

court defined as those seeking to commit the prospective juror to vote based upon

particular facts. Johnson, 366 F.Supp.2d at 840. The court explained that a properly

framed case-specific question would ask whether the venireperson could fairly consider

sentencing options notwithstanding proof of certain facts.       A stake-out question, by

contrast, would ask how a prospective juror would vote at sentencing if presented with

proof of certain facts. Id. at 845. According to the court, case-specific questions are

necessary to empanel a fair and impartial jury, while stake-out questions are improper.

       Fell also adopted this nomenclature as well, holding that there is a crucial

difference between questions that seek to discover how a prospective juror might vote,

and those that ask whether a prospective juror will be able to consider potential

aggravating and mitigating evidence fairly (or at all). Fell, 372 F.Supp.2d at 771; see also

Cash, 50 P.3d at 342 (explaining that death-qualification voir dire “must not be so abstract




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that it fails to identify those jurors whose death penalty views would prevent or

substantially impair the performance of their duties as jurors in the case being tried,” but

also “must not be so specific that it requires the prospective jurors to prejudge the penalty

issue based on a summary of the mitigating and aggravating evidence likely to be

presented”); State v. Henderson, 574 S.E.2d 700, 706 (N.C. Ct. App. 2003) (internal

citation omitted) (recognizing the difference between an improper “stakeout” question and

a question “designed to measure a prospective juror’s ability to follow the law,” which is

“proper within the context of jury selection voir dire”).

       Similarly, the Supreme Court of Georgia acknowledged that the “line between

permissible inquiry into ‘prejudice’ (a juror’s fixed opinion that a certain result should

automatically follow from some fact, regardless of other facts or legal instructions) and

impermissible questions of ‘pre-judgment’ (speculation about or commitment to the

appropriate result based on hypothesized facts) can be hazy.” Ellington, 735 S.E.2d at

754. Regardless of where the line is, the court held that the defendant was entitled to ask

whether prospective jurors “would automatically vote for a death sentence in any case in

which two murder victims were young children, regardless of any other facts or legal

instructions.” Id. at 755.

       In rejecting the requested voir dire question, the trial court in this case relied upon

our decision in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), a case that clearly is

distinguishable. In Bomar, the defendant argued that he was unconstitutionally restricted

from asking prospective jurors about specific aggravating and mitigating circumstances

that might cause them to impose the death penalty. Id. at 847. This Court found no

instance in which Bomar attempted to ask the venirepersons questions concerning

aggravating circumstances and was then denied the opportunity to do so. Id. The Court

turned to three questions that Bomar did attempt to ask regarding mitigating




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circumstances. Id. at 848.3 The Court held that the particular questions Bomar attempted

to ask were intended “to elicit what the jurors’ reactions might be when and if [Bomar]

presented certain specific types of mitigating evidence.” Id. at 849. The questions were

aimed at gauging potential mitigation strategies, rather than ensuring jury impartiality. Id.

       In Bomar, this Court precluded the same types of pre-commitment or pre-judgment

questions with which the courts in Johnson, Fell, Ellington, and Cash were concerned.

The questions Bomar sought to ask were premised upon information that the defendant

might, or might not, choose to present in mitigation.        They were not case-specific

questions premised upon particular facts that the prosecution would introduce as an

aggravating circumstance in the sentencing phase. Unlike Bomar, there is no concern in

this case for what the jurors’ reactions “might” be upon hearing mitigation evidence

presented by the defense. The jurors in this case were sure to hear evidence of Le’s prior

conviction, as it was going to be offered by the Commonwealth in support of aggravating

circumstances. Indeed, the Commonwealth made quite clear that it sought to rely upon

Le’s prior conviction for voluntary manslaughter, as evidenced by its March 20, 2015 pre-

trial notice of aggravating circumstances, which identified this prior conviction. The

question for the prospective jurors was not how they would react to potential mitigation

strategies, but whether the fact of the prior conviction would cause them to weigh that


3      In particular, Bomar sought to ask the following three questions: (1) “If you were
chosen as a juror in this case would you want to hear or would you consider evidence of
the defendant’s childhood as supported by the facts?” (2) “[S]ome mitigating
circumstances may be presented by the defense. That would include the defendant’s
character or the defendant’s record, the defendant’s good deeds. Would these types of
circumstances be considered by you? Would they be considered by you or would you
consider them irrelevant if you had to make a decision?” (3) “Would you consider
circumstances about the Defendant, if it came to a situation where we’re in a sentencing
hearing, would you consider, would you be able to consider circumstances about the
Defendant if the judge instructed you to listen to those circumstances?” Bomar, 826 A.2d
at 847-48.



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aggravating factor to the exclusion of all other evidence, and thereby automatically

impose a sentence of death.

       Following Bomar, this Court decided Commonwealth v. Smith, 131 A.3d 467 (Pa.

2015).4 There, the defendant argued that the trial court denied him due process and the

right to a fair and impartial jury by refusing to permit the following voir dire question: “You

will hear that [appellant] was convicted, by plea of guilty, to the crime of [v]oluntary

[m]anslaughter in 1980. Is there any one of you who feels that[,] because of the

defendant’s prior convictions, that you would not consider a sentence of life

imprisonment[?]” Id. at 476 (internal citations omitted).

       The Smith Court rejected the defendant’s argument, holding that the question was

not permissible under Bomar. The Court reached this conclusion without analysis. The

Court did not examine the questions barred in Bomar or compare those questions with

the question that Smith sought to ask.

       Chief Justice Saylor dissented, agreeing with Smith that the trial court erred “in

refusing to allow material and appropriate life qualification questions during juror voir dire.”

Id. at 478 (Saylor, C.J., dissenting). Chief Justice Saylor agreed with Smith’s reliance

upon Johnson, and with the Johnson court’s distinction between “1) case-specific voir

dire questions designed to determine whether jurors harbor some bias relative to critical

facts to be demonstrated by trial evidence, and 2) interrogatories seeking to pre-commit

jurors to a particular verdict.” Id. at 479 (citing Johnson, 366 F.Supp.2d at 845-49).

Applying this distinction, Chief Justice Saylor explained that the rationale of Bomar


4      Following Bomar, the Court also decided Commonwealth v. Mattison, 82 A.3d 386
(Pa. 2013). As the Majority observes, the Court rejected the argument that the trial court
abused its discretion by precluding voir dire questioning that would have disclosed the
defendant’s prior murder conviction. Maj. Op. at 20 n.16. In doing so, the Court did not
examine the extra-jurisdictional precedent upon which Le now relies. Accordingly, this
Court presently is confronted with more developed and persuasive advocacy on this issue
than was available in Mattison.

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precludes only the second type of interrogatories, and expressed a desire to “follow the

lead” of the California Supreme Court in Cash. Id. (citing Cash, 50 P.3d 332).

       I agree with the position that Chief Justice Saylor articulated in dissent in Smith.

Bomar is distinguishable from the circumstances presented in Smith.             Where the

defendant seeks to uncover juror bias relative to critical facts that the Commonwealth will

present, the approach embraced by the courts in Johnson, Fell, Ellington, and Cash is

consistent with a fair trial before an impartial factfinder.     Smith’s rejection of the

defendant’s argument undermines this constitutional guarantee.          This Court should

abandon Smith and should realign itself with fundamental constitutional precepts.5

       The Majority declines to revisit Smith, based upon Le’s failure to confront the Smith

majority opinion in his brief. The Majority’s evaluation of Le’s argument is unduly narrow.

In arguing for reversal on this issue, Le relies upon the guarantee of an impartial jury,

urges this Court to distinguish Bomar and to examine the approach of the courts in

Johnson and Cash, and relies explicitly upon Chief Justice Saylor’s dissent in Smith.

While Le does not expressly analyze the majority opinion in Smith, that analysis is

nevertheless implicit in his adoption of Chief Justice Saylor’s dissent, which demonstrated

that the Smith majority was incorrect.      More importantly, this Court is tasked with

addressing the issue presented. If, in doing so, it becomes apparent that Smith is not

supported by precedent, this Court certainly is not constrained from saying so simply




5       The Majority protests that Smith has not proven itself to be “unworkable” or
“otherwise infirm.” Maj. Op. at 22, n.17. The “unworkable” and “infirm” nature of Smith
lies in its approval of a potentially biased jury in a death penalty case. If an
unconstitutional jury selection process in a death penalty case is neither “unworkable” nor
“infirm,” it is difficult to discern what would be.



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because Le’s discussion focused on the dissenting opinion in Smith, rather than upon the

majority opinion which that dissent criticizes.6

        Here, the Commonwealth committed to presenting evidence of Le’s prior

conviction.   Accordingly, Le sought to voir dire potential jurors regarding this prior

conviction. The trial court denied this request in reliance upon Bomar, a precedent that

is distinguishable. Moreover, Smith was wrongly decided and should no longer serve as

a barrier to the vindication of Pennsylvanians’ fundamental right to trial by an impartial

jury.

        Because I would grant Le’s request for a new penalty phase, I respectfully dissent.




6      See, e.g., Balentine v. Chester Water Auth., 191 A.3d 799, 812 (Pa. 2018) (Wecht,
J., concurring) (“[A]gainst the critical importance of stability we must balance our duty as
a court of last resort to refine or even abandon precedent when time and experience
reveal its infirmity.”); see also Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S.
595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one
ought not to reject it merely because it comes late.”).

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