                            [J-3-2014][M.O. – Stevens, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                   :    No. 680 CAP
                                                :
              Appellee                          :    Appeal from the Judgment of Sentence
                                                :    entered on 10/4/12 (post-sentence
              v.                                :    motions denied on 2/13/13) in the Court
                                                :    of Common Pleas Criminal Division of
CHRISTOPHER LYNN JOHNSON,                       :    Adams County at No. CP-01-CR-
                                                :    0001180-2010
              Appellant                         :
                                                :
                                                :    ARGUED: March 11, 2014




                                 CONCURRING OPINION


MR. JUSTICE SAYLOR                                  DECIDED: December 30, 2014


       I join Parts I, VII, VIII, and XI of the majority opinion, concur in the result relative

to the balance, and write to the following points.

       As to Part III and Appellant’s efforts to rely upon voluntary intoxication in

mitigation, I support the majority’s holding solely on the basis of precedent. Beyond

that, I merely note that the continuing application of a “stringent standard” in construing

the Section 9711(e)(3) mitigator, Commonwealth v. Flor, 606 Pa. 384, 421 n.7, 998

A.2d 606, 627 n.7 (2010), is out of sync with the narrowing construction required of

death-penalty statutes.    Indeed, as I have previously observed, there is a marked

tendency, on the part of this Court, to construe aggravating circumstances broadly, see,

e.g., Commonwealth v. Daniels, ___ Pa. ___, ___, ___ A.3d ___, ___, 2014 WL

5505024, at *46 (2014) (Saylor, J., concurring and dissenting), and mitigators narrowly

(with the present decision and the precedent upon which it relies serving as an apt
example). Again, such manner of analysis, in my view, remains in strong tension with

governing federal constitutional mandates. See id. (citing, inter alia, Commonwealth v.

Stallworth, 566 Pa. 349, 373, 781 A.2d 110, 124 (2001) (“[I]n the context of a statute

defining a category of persons against whom it is permissible to impose a sentence of

death, such strict construction should militate in favor of the least inclusive

interpretation.” (citing Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742

(1983))).

       The above comments dovetail with my position concerning Part VI of the majority

opinion, since, left to my own devices, I also would implement the constitutionally-

required narrowing construction relative to the in-perpetration-of-a-felony aggravator

consistent with my dissent in Commonwealth v. Robinson, 583 Pa. 358, 392-99, 877

A.2d 433, 453-58 (2005) (Saylor, J., concurring and dissenting).

       With regard to Part IV and the prosecutorial practice of attempting to inject a

non-statutory weighing equation into the jury’s deliberations centered on the value of a

victim’s life, I believe that the district attorney’s remarks were plainly inappropriate and

prejudicial, and that the judgment of sentence may only be sustained on the basis of the

prompt and explicit curative measures taken by the trial court.

       Respecting Part V and Appellant’s attempts to introduce extrajudicial expressions

of his asserted remorse, the majority opinion appears to suggest a rule by which a

defendant might introduce otherwise inadmissible hearsay statements of his own, as

long as he undertakes to testify at trial. See Majority Opinion, slip op. at 45-46. To the

extent that this is the majority’s intention, I disassociate myself from these passages,




                            [J-3-2014][M.O. – Stevens, J.] - 2
since I know of no authority to support such a general rule, which I believe is unsound in

any event.1

       In Part VIII, the Court refers to residual doubt as a “non-statutory mitigator,” and,

quoting dictum from Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883 (2004), to

suggest that the concept may be one of “statutory irrelevance.” Majority Opinion, slip

op. at 55 (quoting Edmiston, 578 Pa. at 304, 851 A.2d at 895). In the first instance, I

note that the term “non-statutory mitigator” is sometimes used to refer to mitigation

which actually is statutorily authorized under the umbrella of the Section 9711(e)(8)

catchall. See, e.g., Commonwealth v. Mattison, ___ Pa. ___, ___, 82 A.3d 386, 399-

400 (2013). Indeed, in my view, residual doubt may indeed fall within this category of

permissible mitigation evidence under subsection (e)(8), broadly construed, as it should

be per governing federal constitutional law. Nevertheless, I do not believe that it is

necessary for the trial courts to issue a particularlized instruction to account for residual

doubt arguments.

       Finally, with regard to Part X, I differ with the majority’s position that chronic

alcohol or drug abuse is irrelevant to whether more acute use of such substances may

have occurred. See Majority Opinion, slip op. at 69-70. Relevant evidence is such

evidence as tends to to make a material fact more or less likely, see Pa.R.E. 401, and it

is difficult to dispute, for example, that a chronic and untreated alcoholic would be more

likely to be intoxicated on any given occasion than a social drinker. It would thus seem

to me that the ongoing prohibition against the use of broader evidence of substance


1
  Indeed, our evidentiary rules undertake to specifically delineate the instances in which
a hearsay statement is not excluded by the rule against hearsay if the declarant testifies
and is subject to cross-examination about the prior statement. See Pa.R.E. 803.1.
Notably, none of which instances appears to be present relative to the extrajudicial
statements about Appellant’s remorse.


                            [J-3-2014][M.O. – Stevens, J.] - 3
abuse relative to mens rea in criminal cases is better understood and assessed as a

matter of materiality, or, perhaps more straightforwardly, as a prophylactic measure

instituted to minimize the number of collateral evidentiary forays and disputes in criminal

cases.




                            [J-3-2014][M.O. – Stevens, J.] - 4
