J-A18020-15


                                  2015 PA Super 239

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DAVID ALLEN SATTAZAHN

                            Appellee                  No. 490 MDA 2014


                   Appeal from the Order dated March 4, 2014
                 In the Court of Common Pleas of Berks County
                Criminal Division at No: CP-06-CR-0002194-1989


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                          FILED NOVEMBER 20, 2015

       The Commonwealth appeals from an order1 of the Court of Common

Pleas of Berks County (“trial court”), granting Appellee David Allen

Sattazahn’s motion in limine. Upon review, we reverse.

       The facts and procedural history underlying this case are undisputed

and have been detailed fully in prior appellate decisions.2 Briefly, in 1991,

Appellee was convicted of first-degree murder for the April 12, 1987

shooting death of Richard Boyer during a robbery. Appellee was sentenced

____________________________________________


1
   Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth certified in its notice of appeal “that the order will terminate
or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
2
  See, e.g., Commonwealth v. Sattazahn, 631 A.2d 597 (Pa. Super.
1993), Commonwealth v. Sattazahn, 763 A.2d 359 (Pa. 2000);
Commonwealth v. Sattazahn, 952 A.2d 640 (Pa. 2008).
J-A18020-15



to life imprisonment because of a sentencing jury impasse. Subsequently,

this Court reversed Appellee’s first-degree murder conviction and remanded

for a new trial.

      On retrial, Appellee once again was convicted of first-degree murder.

At the penalty phase, the Commonwealth sought to prove, inter alia, the

aggravating circumstance set forth in Section 9711(d)(9) of the Sentencing

Code, 42 Pa.C.S.A. § 9711(d)(9). Section 9711(d), relating to aggravating

circumstances, provides in part:

      Aggravating circumstances shall be limited to the following:

              ....

            (9) The defendant has a significant history of felony
            convictions involving the use or threat of violence to
            the person.


42 Pa.C.S.A. § 9711(d)(9). A jury recommended a sentence of death based

upon its finding that aggravating circumstances, beyond a reasonable doubt,

outweighed mitigating circumstances.      The trial court formally sentenced

Appellant to death on February 16, 1999. Our Supreme Court upheld the

sentence.    See Commonwealth v. Sattazahn, 763 A.2d 359, 369 (Pa.

2000). The United States Supreme Court granted certiorari and, eventually,

affirmed the judgment of sentence. See Sattazahn v. Pennsylvania, 537

U.S. 101, 116 (2003).

      Appellee petitioned for relief under the Post Conviction Relief Act

(PCRA), alleging that his trial counsel failed to explore adequately all

mitigating circumstances. The PCRA court agreed, awarding Appellee only


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another penalty phase.          Our Supreme Court affirmed the PCRA court’s

decision.    See Commonwealth v. Sattazahn, 952 A.2d 640, 657 (Pa.

2008).

       During jury selection for the new penalty phase, the Commonwealth

again sought to introduce, inter alia, the aggravating circumstance of a

significant history of felony convictions under Section 9711(d)(9).             To

establish this, the Commonwealth indicated to the trial court that it would

introduce evidence that Appellee was convicted of third-degree murder for a

killing that occurred on December 26, 1987. In response, Appellee made an

oral motion in limine, asserting that, under Section 9711(d)(11), the

Commonwealth was prohibited from introducing evidence that Appellee was

convicted of third-degree murder for the December 26, 1987 killing, because

the killing had occurred after the Boyer murder sub judice.3                Section

9711(d)(11)       of   the    Sentencing       Code   provides   that   aggravating

circumstances include whether “[t]he defendant has been convicted of

another murder committed in any jurisdiction and committed either before

or at the time of the offense at issue.” 42 Pa.C.S.A. § 9711(d)(11). Thus,

Appellee argued that, because the December 26, 1987 killing occurred after

the Boyer murder, the Commonwealth was precluded from relying on the


____________________________________________


3
  The record reveals that the killing for which Appellee was convicted of
third-degree murder occurred almost 9 months after the murder of Richard
Boyer.



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third-degree     murder     conviction     to   establish   the   Section   9711(d)(9)

aggravator.      In other words, Appellee argued that Section 9711(d)(11)

limited the Commonwealth’s ability to introduce, under Section 9711(d)(9),

a conviction for a murder that occurred after the murder at issue here. The

trial court agreed, granting Appellee’s in limine motion. The Commonwealth

timely appealed to this Court under Pa.R.A.P. 311(d).

       On appeal, the Commonwealth raises a single issue for our review:

       Did the trial court err when it ruled that, for purposes of proving
       the aggravating circumstance set forth at 42 Pa.C.S.A.
       § 9711(d)(9), the Commonwealth may not submit evidence that
       [Appellee] was convicted of third[-]degree murder for a killing
       that occurred after the murder of which he was convicted in this
       case.

Appellant’s Brief at 4.      Subsumed within the Commonwealth’s issue is its

argument that the trial court erred in concluding that Section 9711(d)(11)

imposes a limitation on the use of a subsequent murder conviction to

establish the Section 9711(d)(9) aggravator.4 Id. at 16.

       The Commonwealth presents the issue here as “one of statutory

interpretation, which, as a question of law, requires that we apply a de novo

standard of review.” Commonwealth v. Segida, 985 A.2d 871, 874 (Pa.

2009) (citation omitted). When interpreting a statute, this Court is guided

by the Statutory Construction Act (Act) of 1972, 1 Pa.C.S.A. §§ 1501-1991,
____________________________________________


4
  To the extent Appellee argues that the phrase “threat of violence” as
contained in Section 9711(d)(9) is ambiguous and uncertain, we reject this
argument as waived. Appellee failed to raise this argument before the trial
court. See Pa.R.A.P. 302(a).



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which provides that “[t]he object of all interpretation and construction of

statutes is to ascertain and effectuate the intention of the General

Assembly.”     1 Pa.C.S.A. § 1921(a).    “The clearest indication of legislative

intent is generally the plain language of a statute.”     Commonwealth. v.

Coto, 932 A.2d 933, 935 (Pa. Super 2007) (citation omitted), appeal

denied, 948 A.2d 802 (Pa. 2008). “[W]hen the words of a statute are clear

and free from all ambiguity, the letter of it is not to be disregarded under

the pretext of pursuing its spirit.” Commonwealth. v. Fedorek, 946 A.2d

93, 99 (Pa. 2008) (citing, inter alia, Section 1921(b) of the Act, 1 Pa.C.S.A.

§ 1921(b)). Only “[w]hen the words of the statute are not explicit” may this

Court resort to statutory construction.      1 Pa.C.S.A. § 1921(c).     Indeed,

“[e]very statute shall be construed, if possible, to give effect to all its

provisions.” 1 Pa.C.S.A. § 1921(a).      It is presumed “[t]hat the General

Assembly intends the entire statute to be effective and certain.” 1 Pa.C.S.A.

§ 1922(2).     Thus, no provision of a statute shall be “reduced to mere

surplusage.”     Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004).             It is

presumed “[t]hat the General Assembly does not intend a result that is

absurd, impossible of execution or unreasonable.”      1 Pa.C.S.A. § 1922(1).

Finally, “we construe our sentencing statutes or parts of those statutes in

pari materia.” Commonwealth. v. Stultz, 114 A.3d 865, 885 (Pa. Super.

2015) (citing Section 1932 of the Act, 1 Pa.C.S.A. § 1932).

      The      question   of   whether   Section   9711(d)(9)     permits    the

Commonwealth to submit evidence of a felony, including murder, that was

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committed subsequent to the crime for which the Commonwealth seeks the

death penalty was addressed conclusively by our Supreme Court in a prior

appeal in the case sub judice. In Commonwealth v. Sattazahn, 763 A.2d

359 (Pa. 2000), wherein Appellant challenged evidence under Section

9711(d)(9), our Supreme Court reasoned:

     The criminal history of [Appellee] changed since the original trial
     in May 1991. At the time of the retrial, he had a significant
     history of felony convictions that involve the threat of violence to
     the person. The fact that the offenses occurred after the instant
     murder is irrelevant under the law.

Sattazahn, 763 A.2d at 369 (emphasis added); see also Commonwealth

v. Johnson, 985 A.2d 915, 927 (Pa. 2009) (“[T]he fact that the offenses

offered to establish [a]ppellant’s history of prior violent felony convictions

occurred   after   [the   victim’s]   murder   is   irrelevant   [under   Section

9711(d)(9)].”).

     Given the clear status of the law, as explained by our Supreme Court

in Sattazahn, we must conclude that the trial court erred in prohibiting the

Commonwealth from introducing evidence of Appellee’s third-degree murder

conviction for a crime that occurred after the Boyer murder in this case for

purposes of establishing the Section 9711(d)(9) aggravator.

     We next address the Commonwealth’s argument that the trial court

erred in concluding that Section 9711(d)(11) imposes a limitation on the

Commonwealth’s ability to use Appellee’s subsequent third-degree murder

conviction to establish the Section 9711(d)(9) aggravator.




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      At the outset, we note that the parties appear to agree that

subsections 9711(d)(9) and (11) are clear and unambiguous.                See

Appellee’s Brief at 7 (“The words of [Section] 9711(d)(11) are clear and

unambiguous and must not be ignored or circumvented[.]”); see also

Appellant’s Brief at 17. Because the words of subsections 9711(d)(9) and

(11) are clear and free from all ambiguity, we must apply the subsections

according to their plain language.

      As noted, Section 9711(d), relating to aggravating circumstances,

provides in part:

      (9) The defendant has a significant history of felony convictions
      involving the use or threat of violence to the person.

      ....

      (11) The defendant has been convicted of another murder
      committed in any jurisdiction and committed either before or at
      the time of the offense at issue.

42 Pa.C.S.A. § 9711(d)(9), (11).

      To understand Section 9711(d)(11)’s limitations, if any, we must

examine its origins.   As our Supreme Court noted in Commonwealth v.

Moran, 636 A.2d 612 (Pa. 1993), the legislature added Section 9711(d)(11)

as a specific response to the Court’s decision in Commonwealth v. Goins,

495 A.2d 527 (Pa. 1985). Moran, 636 A.2d at 613 n.1. In Goins, a jury

imposed a capital sentence upon the appellant because the Commonwealth

established the Section 9711(d)(9) aggravator by submitting only evidence

of the appellant’s prior conviction for second-degree murder.    Goins, 495

A.2d at 533, n.1.      On appeal, the Supreme Court vacated the death

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sentence, holding that a single felony conviction for a crime of violence is

insufficient to establish a significant history under Section 9711(d)(9). Id.

at 532-34. After the sentencing verdict in Goins, our legislature amended

Section 9711(d) to include as an aggravating circumstance a single prior

murder conviction. See Moran, supra.

       As the foregoing illustrates, the legislature did not include Section

9711(d)(11) to limit the effectiveness or application of Section 9711(d)(9). 5

Rather, the legislature included the Section 9711(d)(11) aggravator to allow

the Commonwealth to introduce a single prior murder conviction as an

aggravating     circumstance      at   the     penalty   phase.     Thus,   subsections

9711(d)(9) and (11) are distinct aggravating circumstances that are self-

contained     and     self-sustaining.          Under     Section    9711(d)(9),   the

Commonwealth is permitted to introduce a defendant’s significant history

of felony convictions so long as the defendant has more than two such

convictions. See Goins, supra. Section 9711(d)(11), on the other hand, is

triggered when a defendant has a single murder conviction for a murder

that occurred before, or at the same time as, the murder for which a death

sentence is sought.       Accordingly, we conclude that the trial court erred in

determining that Section 9711(d)(11) limits the application of Section

9711(d)(9) by prohibiting the Commonwealth from presenting evidence of

____________________________________________


5
  Section 9711(d)(11) contains no language limiting the application of
Section 9711(d)(9).



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J-A18020-15



Appellee’s third-degree murder conviction for a crime that occurred after the

murder sub judice.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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