                            [J-70-2014][M.O. – Eakin, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 681 CAP
                                              :
              Appellee                        :   Appeal from the Judgment of Sentence
                                              :   entered on 3/28/13 in the Court of
              v.                              :   Common Pleas, Criminal Division of
                                              :   Delaware County at No. CP-23-
                                              :   0004586-1994
WAYNE A. SMITH,                               :
                                              :
              Appellant                       :   ARGUED: November 18, 2014




                                    DISSENTING OPINION


MR. CHIEF JUSTICE SAYLOR                               DECIDED: December 21, 2015


       I respectfully dissent in this case centered upon the propriety of a death-penalty

verdict. Primarily, I believe that the trial court erred in permitting the Commonwealth to

elaborate upon an aggravating circumstance via testimony from the sister of the victim

of a previous killing and in refusing to allow material and appropriate life qualification

questions during juror voir dire.

       Initially, although I take no issue with the majority’s explanation that the

Commonwealth is permitted to undertake some reasonable development of the facts

underlying a conviction serving as an aggravating circumstance, I am not comfortable

with the concept of “short-chang[ing]” a jury. Majority Opinion, slip op. at 8. Evidentiary

determinations are regulated by rules and precepts designed to maintain fundamental

fairness and administered through the exercise of sound discretion by the trial courts.

In the application, there are many instances in which relevant information -- favorable to
either the Commonwealth or the defense – properly is withheld from lay jurors. As

such, and since the jurors have no personal stake in the matter, respectfully, I find the

majority’s “short-changing” concept to be unsuited to the subject area.

      Moreover, while developing facts pertinent to prior convictions serving as

aggravating circumstances may be permissible in the abstract, doing so via contested

testimony of a homicide victim’s close relative is, in my view, unduly prejudicial,

particularly in a scenario in which the underlying conviction had been secured by guilty

plea. Accord Brief for Appellant at 20 (“To present evidence now that demonstrated a

brutal, unprovoked and malicious killing, a crime much worse than that agreed to by the

Commonwealth, is simply not fair.”). Injection of eyewitness testimony relative to an

aggravator merely centered on the fact of a conviction also fosters the potential for mini-

trials concerning collateral facts. While, again, I recognize that the Commonwealth is to

be afforded some latitude to present factual circumstances underlying previous

convictions serving as aggravating circumstances, I believe that the development

should be subject to judicious control by the trial courts and that the prosecution should

be required to employ a less problematic methodology (such as introduction of the guilty

plea colloquy).

      Concerning the life qualification issue, I note that Appellant has presented an

extensive argument predicated upon the insightful opinion of a federal district court in

United States v. Johnson, 366 F. Supp. 2d 822 (N.D. Iowa 2005). As Appellant relates,

Johnson elaborately explains the difference 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. See id. at 845-49. Johnson concludes, appropriately in my

view, that the former line of case-specific questions may, in fact, be constitutionally


                            [J-70-2014][M.O. – Eakin, J.] - 2
required to empanel a fair and impartial jury.        See id. at 848 (explaining that a

prohibition on such questions “may unconstitutionally impede a party’s ‘ability to

exercise intelligently [a] challenge for cause against those biased persons on the venire

who as jurors would unwaveringly impose’ either a life or death sentence after a finding

of guilt.’” (quoting Morgan v. Illinois, 504 U.S. 719, 733, 112 S. Ct. 2222, 2232 (1992))).

       The majority appears to implicitly reject Johnson’s approach to case-specific

questions   based    on    the   commonly-accepted      admonition,    as   articulated   in

Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), that “[n]either counsel for

the defendant nor the Commonwealth should be permitted to ask direct or hypothetical

questions designed to disclose what a juror’s present impression or opinion as to what

his decision will likely be under certain facts which may be developed in the trial of the

case.” Id. at 456, 826 A.2d at 849 (emphasis added); accord Ellington v. State, 735

S.E.2d 736, 754 (Ga. 2012) (“[V]oir dire is not intended to pre-try the case on

hypothesized facts and get jurors to commit to the outcome based on that speculative

proof.”). I believe, however, that this rationale applies only to pre-commitment-type

interrogatories (i.e., category “2” in the above paragraph) and not to case-specific

questions appropriately framed to inquire into juror biases relative to critical facts. See

Johnson, 366 F. Supp. 2d at 848-50; accord United States v. Fell, 372 F. Supp. 2d 766,

773 (D. Vt. 2005) (“A balance must be struck between seeking to discover biased jurors

who could not be impartial given particular facts and getting jurors to commit to support

a particular perspective on the evidence.”).

       For my part, I would follow the lead of the California Supreme Court in People v.

Cash, 50 P.3d 332 (Cal. 2002), which held that, by absolutely precluding case-specific

questioning pertaining to the fact of a previous homicide during life qualification, “the

trial court created a risk that a juror who would automatically vote to impose the death


                             [J-70-2014][M.O. – Eakin, J.] - 3
penalty on a defendant who had previously committed murder [or manslaughter] was

empaneled and acted on those views, thereby violating defendant’s due process right to

an impartial jury.” Id. at 342-43.

       I recognize that the form of case-specific questions geared to assessing juror

biases should be controlled by trial courts, and that Appellant’s specific framing was not

ideal, in that the interrogatory was not couched conditionally, in terms of what the trial

evidence might show. See Johnson, 366 F. Supp. 2d at 849 (explaining that case-

specific questions “should be prefaced by ‘if the evidence shows’ or some other

reminder that an ultimate determination must be based on the evidence at trial and the

court’s instructions.” (emphasis in original)). Nevertheless, since the Commonwealth

clearly had committed to pursuing the relevant aggravator and the Appellant’s proposed

question did not require jurors to commit to a particular result, but rather, concerned

whether they could fairly consider the evidence at large and the trial court’s instructions,

I do not find this factor to be dispositive. Indeed, only a modest adjustment to the query

was required to bring it into conformance with Johnson’s sound guidance.

       A fair trial before an impartial factfinder is a fundamental component of due

process of law. See Morgan, 504 U.S. at 727, 112 S. Ct. at 2228-29. Voir dire is a

primary mechanism by which the impartiality requirement is assessed and vindicated.

See Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 1634 (1981)

(“Without an adequate voir dire the trial judge’s responsibility to remove prospective

jurors who will not be able impartially to follow the court’s instructions and evaluate the

evidence cannot be fulfilled.        Similarly, lack of adequate voir dire impairs the

defendant’s right to exercise peremptory challenges where provided by statute or rule[.]”

(citation omitted)). In my view, the majority’s wholesale rejection of Appellant’s position




                             [J-70-2014][M.O. – Eakin, J.] - 4
that reasonable, material, properly-framed case-specific voir dire should have been

permitted squarely undercuts these core principles.



      Madame Justice Todd joins this dissenting opinion.




                           [J-70-2014][M.O. – Eakin, J.] - 5
