                          [J-69-2015] [MO: Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 702 CAP
                                              :
                     Appellee                 :   Appeal from the Judgment of Sentence
                                              :   entered on August 31, 2014 in the Court
                                              :   of Common Pleas, Westmoreland
              v.                              :   County, Criminal Division at No. CP-65-
                                              :   CR-0000851-2010. Post Sentence
                                              :   Motions Denied July 16, 2014.
MELVIN KNIGHT,                                :
                                              :   SUBMITTED: October 7, 2015
                     Appellant                :


                                 DISSENTING OPINION


JUSTICE MUNDY                                           DECIDED: November 22, 2016
       I respectfully dissent from the majority’s holding vacating Appellant’s judgment of

sentence and awarding a new penalty hearing.          I disagree that Commonwealth v.

Rizzuto, 777 A.2d 1069 (Pa. 2001) applies under the circumstances of this case.

Rizzuto held “where a mitigating circumstance is presented to the jury by stipulation, the

jury is required by law to find that mitigating factor.” Id. at 1089. I agree that if the

parties stipulate to a mitigating factor the jury must find that factor as a matter of law.

However, I cannot agree that a jury is required to find a factor which has been

presented for the jury’s determination absent a stipulation.

       I agree with Justice Baer’s statement in his concurring opinion that, based on

Detective Vernail’s testimony alone, he is “unconvinced that the jury was required as a

matter of law to find the Section 9711(e)(1) mitigating circumstance because the jury

was free to disbelieve the testimony presented, as a fact-finder has exclusive authority

to make credibility determinations.”    Concurring Op. at 2, citing Commonwealth v.
Diamond, 83 A.3d 119, 134 (Pa. 2013), cert. denied, Diamond v. Pennsylvania, 135 S.

Ct. 145 (2014).

       However, I write separately to distance myself from his conclusion the jury was

required to find the Section 9711(e)(1) mitigating circumstance based on “the

prosecutor’s explicit concession that Detective Vernail’s review of Appellant’s criminal

history was correct[.]”   Id.   A prosecutor’s closing statement is pure argument, not

evidence. See Commonwealth v. Johnson, 668 A.2d 97, 107 (Pa. 1995), cert. denied,

Johnson v. Pennsylvania, 519 U.S. 827 (1996). Thus, any perceived “concession”

contained in a closing argument is not evidence the jury is bound to consider.

       Appellant claims that the jury’s failure to find the Section 9711(e)(1) mitigator was

“arbitrary and capricious.” Appellant’s Brief at 37-39. I agree with the trial court and the

Commonwealth that the jury was solely responsible for determining if a mitigating factor

existed.   At sentencing, the Commonwealth explicitly refused to stipulate to the

existence of the mitigator at issue. Therefore, it was incumbent upon Appellant to prove

the mitigator by a preponderance of the evidence. See 42 Pa.C.S. § 9711(c)(1)(iii). It

was then the exclusive role of the jury to determine whether the mitigator existed and, if

so, whether it outweighed any proven aggravating circumstances.

       As this Court stated in Commonwealth v. Reyes, 963 A.2d 436 (Pa. 2009), cert.

denied, Reyes v. Pennsylvania, 558 U.S. 850 (2009), our authority to vacate a death

sentence is governed by statute.

              There is no legal mechanism by which a sentence of death
              may be overturned by this Court on the basis of an improper
              weighing of aggravating circumstances and mitigating
              circumstances because our authority to vacate a death
              sentence is circumscribed by the death penalty statute,
              specifically 42 Pa.C.S. [§] 9711(h)(3), which provides:

                     (h) REVIEW OF DEATH SENTENCE.—
                                                …



                            [J-69-2015] [MO: Dougherty, J.] - 2
                     (3) The Supreme Court shall affirm the sentence of
                     death unless it determines that:

                            (i) the sentence of death was the product of
                            passion, prejudice or any other arbitrary factor;
                            or

                            (ii) the evidence fails to support the finding of at
                            least one aggravating circumstance specified
                            in subsection (d).

              This restriction on our authority has caused this Court to
              reiterate many times that it is exclusively the function of the
              jury in the first instance to decide whether aggravating and
              mitigating circumstances exist and then whether the
              aggravating circumstances outweigh any mitigating
              circumstances.

Id. at 441.


       Moreover, in Commonwealth v. Walter, 966 A.2d 560 (Pa. 2009), cert. denied,

Walter v. Pennsylvania, 558 U.S. 1052 (2009) this Court held:

              [t]he law is clear that the task of determining the existence of
              mitigating factors is for the jury alone. A capital jury is not
              required to find a mitigating factor presented by a defendant,
              even if the Commonwealth fails to present evidence
              rebutting the existence of that factor. As in [Commonwealth
              v.] Treiber, [874 A.2d 26 (Pa. 2005), cert. denied, 547 U.S.
              1076 (2006)] the jury here was presented with evidence and
              chose, in its discretion, to reject it. Appellant points to no
              error that occurred at the penalty hearing.
Id. at 568 (quotation marks and some citations omitted). In Walter, this Court concluded

that the appellant pointed to no error at the penalty hearing, but rather asked us “to

substitute our own judgment for that of the jury, a charge we are without authority to

undertake.” Id.

       In Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013), cert. denied, Ballard v.

Pennsylvania, 134 S. Ct. 2842 (2014), the appellant asked this Court to review the

jury’s failure to find the catchall mitigator despite presenting what he deemed to be

“unrebutted” evidence of 15 reasons why it should be found. Noting that the catchall

mitigator is subjective, this Court found that the appellant failed to set forth a legal


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argument, noting that “[i]rrespective of why the jury determined not to find this particular

mitigating circumstance, the point remains that the determination was reposed with the

fact finder. See Reyes. We cannot set it aside, based upon speculation that the jury

did not do its duty.” Id. at 411.

       Instantly, the jury was charged with the specific task of determining whether or

not Appellant had a “significant history of prior criminal convictions.” Id. § 9711(e)(1).

The only evidence adduced was the testimony of one witness, which the jury was free

to consider and reject. See Walter, 966 A.2d at 568. However, under the majority’s

view, the Commonwealth’s closing argument regarding the weight the jury should give

to Appellant’s prior criminal history provides the linchpin to require the jury to find that

mitigator, as a matter of law, in favor of Appellant.

       The following is an excerpt of the specific argument made by the Commonwealth

to the jury in its closing.

                Lastly, I expect the defendant will argue, rightfully so, that he
                has no significant history of criminal convictions. And that is
                true. You remember that he asked - - the defendant’s lawyer
                asked Detective Vernail yesterday whether he had obtained
                a criminal history of the defendant and Detective Vernail did
                and it did not show any convictions. So, certainly this is a
                mitigating circumstance that is permitted to be offered in a
                death penalty trial. And, again, you must consider that. But
                I ask you to balance that against the horrific events of this
                particular crime. It wasn’t simply a killing. It was a murder
                that was committed during the course of a felony, during the
                course of kidnapping, aggravated assault, a rape. And it
                was worsened by the fact that it wasn’t done by the
                defendant himself, that he joined with other people to keep
                her, Jennifer away from her family, from anybody who would
                help her, to kidnap her in effect. He had no prior convictions,
                but in this particular case he pled guilty to first degree,
                second degree, two conspiracy charges and kidnapping.
                Five separate felonies.
N.T., 8/30/12, at 1768-1769.

       The defense then argued that Appellant’s prior criminal history should mitigate

his sentence.


                              [J-69-2015] [MO: Dougherty, J.] - 4
              Now, we know that he spent time in jail. You’ve heard about
              that. These are for traffic - - not traffic citations, but a citation
              more or less equivalent to a traffic offense or thereabouts.
              Why is he in jail? He’s in jail because he doesn’t get the
              citation, he doesn’t show up for court. It’s not because
              someone threw him in jail for being guilty. He doesn’t show
              up for the hearing. That’s why he got put in jail and that’s
              how he came to be acquainted with Ricky Smyrnes. These
              citations, disorderly conduct or harassment, certainly you
              wouldn’t want your kids involved in it, you wouldn’t want your
              kids to bring home a citation, but you know these are the
              sorts of things that happen. The point is, he didn’t have a
              significant prior history. No history of misdemeanors or
              felonies at the time of this offense despite all that you’ve
              heard.
Id. at 1776-77.

       In line with our previous cases, the trial court instructed the jury, that if any

member of the jury finds that the defense proved a mitigating factor they are to consider

it and list it on the verdict sheet. In explaining the jury’s role in determining mitigating

factors the trial court instructed as follows.

              The following mitigating circumstances are submitted to the
              jury and must be proved by the defendant by a
              preponderance of the evidence. And, again, preponderance
              is not the same as beyond a reasonable doubt. It makes it
              more likely than not. Think of a scale, and if it tips a little bit
              more one way, that’s the preponderance of the evidence.
              And there are four that are listed for you. And the same as
              the aggravators, you might decide one of these, you might
              decide all of them, you might decide none of them.
N.T., 8/30/12, at 1845 (emphasis added).

       Further, the trial court correctly instructed the jury that they were the sole fact

finders in this matter.     Importantly, the trial court’s charge to the jury specifically

instructed that the prosecutor’s closing statement is argument, not evidence.

              Members of the jury, now that all of the evidence has been
              presented and the attorneys for both sides have made their
              closing arguments, it becomes my duty to instruct you in the
              law which you will apply to the facts as you find them in
              reaching your verdict.
                                                 …



                             [J-69-2015] [MO: Dougherty, J.] - 5
              As I mentioned to you at the outset, it is my responsibility to
              decide all questions of law, and you must accept and follow
              my rulings and instructions on matters of law. I am not,
              however the judge of the facts. It is not for me to decide
              what facts are true facts in this matter. You, the jury are the
              sole and only judge of the facts. It is your responsibility to
              weigh the evidence, and based on that evidence and the
              logical inferences which flow from that evidence, to find the
              facts, to apply the rules of law which I give you, to the facts
              as you find them, and then decide whether the defendant
              should be sentenced to death or life imprisonment.

                                            …

              Ladies and gentlemen, you have now heard evidence and
              arguments of counsel. Once again, I will reiterate to you that
              the arguments of counsel are not evidence.
N.T., 8/30/12, at 1813-16. This statement reaffirms that counsels’ statements are not

evidence or binding, but merely persuasive argument in favor of their respective

positions. See Johnson, 668 A.2d at 107.

       Because there was no stipulation regarding Appellant’s prior criminal history, the

jury was free to weigh Detective Vernail’s testimony and consider the arguments of

counsel. The Commonwealth did not argue that the jury must find Appellant had no

prior significant criminal history, only that they must consider Detective Vernail’s

testimony regarding it. Defense counsel did not argue Appellant’s prior criminal history

was uncontradicted, only that Appellant “didn’t have a significant prior criminal history.”

The defense undoubtedly makes an argument that this was met by a preponderance of

the evidence, but nevertheless, this is clearly a question for the jury, and the jury after

consideration, did not find it. Therefore, I would decline to substitute the judgment of

this Court for that of the jury. See Walter, 966 A.2d at 568. I am cognizant of the facts

of this case and that as objective reviewers it is possible to disagree with the jury’s

failure to find the mitigating factor based on the evidence presented. However, the

potential negative consequences that could arise from extending our current

jurisprudence which states a mitigating factor that is presented by stipulation must be



                           [J-69-2015] [MO: Dougherty, J.] - 6
found by the jury, to directing a jury to find a factor based on what we deem

uncontradicted evidence, usurps the jury’s very specific role in our bifurcated capital

case law.

       A stipulation, as in Rizzuto, is a different circumstance, one the trial court in this

instance recognized, and specifically described in its instruction to the jury.

                     Earlier in my preliminary instructions I told you that
              statements made by counsel are not evidence and are not
              binding on you.       There are exceptions to this. The
              stipulation that was read to you earlier in the trial regarding
              the toxicology report … is one of those exceptions. … When
              the District Attorney and counsel for the defendant stipulate,
              that is when they agree that a certain fact is true, their
              stipulation is evidence of fact. You should regard the
              stipulated or agreed fact as proven.
Id. at 1822. In the absence of a stipulation the jury cannot be faulted for failing to find a

mitigator in favor of the defendant, when it was explicitly within its discretion to reject the

evidence presented.

       Of equal importance, I also write to note that the jury’s failure to find the Section

9711(e)(1) factor does not lead to an arbitrary and capricious result. The jury in this

case unanimously found two aggravating factors beyond a reasonable doubt; that the

killing was committed during the commission of a felony, and that the killing was

committed by a means of torture. The jury heard about the extensive abuse and torture

the victim incurred prior to her murder at the hands of Appellant and his co-defendant.

The jury also found the catchall mitigating factor and weighed this against the two

aggravating factors. See Reyes, 963 A.2d at 441. Ultimately, the jury concluded the

aggravating factors outweighed the mitigating factor and unanimously returned a verdict

of death. N.T., 8/30/12, at 1865.

       Accordingly, I dissent from the majority’s conclusion that Appellant is entitled to a

new penalty hearing and I would affirm Appellant’s judgment of sentence.




                            [J-69-2015] [MO: Dougherty, J.] - 7
