                                  [J-131-2016]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,               :   No. 711 CAP
                                            :
                     Appellee               :   Appeal from the Judgment of Sentence
                                            :   entered on June 9, 2015 in the Court of
                                            :   Common Pleas, Bucks County, Criminal
               v.                           :   Division at No. CP-09-CR-0001413-
                                            :   2014. PSM denied 07/20/2015
                                            :
MARCEL EMANUEL JOHNSON,                     :   ARGUED: December 6, 2016
                                            :
                     Appellant              :


                                       OPINION


JUSTICE DONOHUE                                               DECIDED: May 25, 2017
        In June 2015, Marcel Emanuel Johnson (“Johnson”) was convicted of killing

Ebony Talley (“Talley”), her unborn child, and her four-year-old daughter, R.R. He was

sentenced to death for R.R.’s murder. In this automatic direct appeal,1 Johnson raises

nine issues for our review. Following our thorough consideration of these issues and for

the reasons set forth below, we affirm his convictions and the imposition of the death

sentence.

        In November 2013, Talley was living in Apartment 604 of the Avalon Court

Apartments in Bristol Township, Bucks County with R.R.2 Early in the afternoon of


1
    42 Pa.C.S. § 9711(h)(1).
2
  The apartment belonged to a woman named Gisele Ucci. At the time of these events,
Ms. Ucci was temporarily residing in Argentina. She allowed Talley to stay in her
apartment and use her vehicle, a maroon Cadillac, while she was away. For ease of
(continued…)
November 25, 2013, Talley’s mother and sisters arrived at Avalon Court to visit. Talley,

who was twenty weeks pregnant, and her mother left briefly to obtain a money order for

a partial amount of Talley’s rent. Upon their return, Johnson arrived at the apartment.

Johnson and Talley were friends and he was well acquainted with her visiting family

members. Johnson was storing some of his belongings in the apartment and Talley

occasionally allowed him to stay overnight. Johnson socialized with Talley and her

family that afternoon. When Talley’s mother and sisters left at approximately 2:30 p.m.,

Johnson remained.

       Shortly thereafter, around 3:00 p.m, a fire was detected in Talley’s apartment.

The fire emitted a thick, black smoke that made it difficult for the responding firefighters

to gain entry. Once inside, firefighters discovered Talley’s lifeless body in the bedroom.

Talley was lying face-down with numerous stab wounds to her head, neck and body. A

plastic bag was also wrapped tightly around her head.3 Small, empty yellow wax bags

stamped in red ink with “#1 way to go” were found scattered around Talley’s body.

More of these distinctive empty wax bags were found in a shoebox in the bedroom. In

the living room, the firefighters found an unresponsive R.R. in a pool of blood beneath

an overturned couch. R.R. had been stabbed in the chest and bled profusely. She was

rushed to the hospital, but pronounced dead soon after her arrival. Minutes before the

fire was detected, a resident of Avalon Court observed Talley’s vehicle speed out of the

parking lot, hitting another vehicle in its haste. The resident noticed that vehicle was

being driven by a black male.


(…continued)
reference, we refer to the apartment as Talley’s residence and the maroon Cadillac as
Talley’s vehicle.
3
  Talley was also found to have been hit in the face with such force that one of her front
teeth was knocked out.



                                     [J-131-2016] - 2
      While emergency responders were still at the scene of the fire, Johnson placed a

series of calls to Talley’s cousin, Brittany Coles. Ms. Coles, who had been alerted to

what was happening at Talley’s apartment and was in a frantic state, told Johnson

about the fire. Because she was at work and could not leave, she implored Johnson to

return to the apartment complex to obtain more information.             Johnson refused,

explaining that he wanted to avoid the police because there were outstanding warrants

for his arrest. Later that afternoon, Johnson called Talley’s sister, Paulina Burke. Ms.

Burke informed Johnson that both Talley and R.R. had died. She asked Johnson to

turn Talley’s vehicle over to the police and otherwise aid in the police investigation.

Again, Johnson refused, citing the outstanding warrants as the basis for his refusal.

      In these phone conversations, Johnson indicated that he was calling from a

friend’s home in the Levittown Trace Apartment complex.4 Based on this information,

the police proceeded to the Levittown Trace Apartments at approximately 6:00 p.m. and

located Talley’s vehicle in the most remote portion of the apartment complex’s parking

lot. When the police approached the vehicle, they found it was vacant. They also

noticed that the license plate had been changed, but the VIN number, which is visible

through the windshield, verified that it was Talley’s vehicle. Shortly after 7:00 p.m.,

Johnson entered the vehicle and began to leave the parking lot. The police immediately

stopped him, utilizing a “felony stop” procedure. During a felony stop, the police officers

remain shielded by their vehicles and, with weapons drawn, they instruct the motorist to

exit his car, demonstrate that he does not possess a weapon, and lay on the ground

before they approach. The police then transported Johnson to their headquarters for

questioning. A subsequent search of Talley’s vehicle revealed, among other items, a


4
  Both Ms. Coles and Ms. Burke testified that they knew Johnson’s phone number but
on the day in question, he called from a phone number that they did not recognize.



                                     [J-131-2016] - 3
bundle of eight empty wax packets stamped in red with “# 1 way to go,” in the ash tray.

These packets were identical to the packets found around Talley’s body and in her

bedroom.

        At the police station, Johnson waived his Miranda5 rights and agreed to speak

with investigators. He explained his friendship with Talley and acknowledged that he

was at her apartment earlier that day. He stated that he left Talley’s home on foot and

met up with a friend named Eric Stahl, who was driving Talley’s vehicle, and that Stahl

gave him the keys later that day. After being confronted with evidence that conflicted

with this account, Johnson changed his story and admitted both to taking Talley’s car

and her Xbox gaming system and hitting another vehicle as he did. When asked why

he did not come to the scene of the fire or the police station at Talley’s family’s

requests, he reiterated his concern about the arrest warrants.       The police arrested

Johnson that evening on charges of possession of drug paraphernalia based on items

found in his possession when the police stopped him in Talley’s vehicle.6 That night,

while he was in custody, the police obtained and executed a warrant for samples of

Johnson’s DNA, fingernail scrapings, hair samples and clothes.

        In January 2014, Johnson was charged with the murders of Talley, R.R., Talley’s

unborn child and related crimes.     While detained in the Bucks County Correctional

Facility, Johnson admitted to another inmate that he killed Talley and that he killed R.R.

because she could identify him as her mother’s killer. Also while incarcerated, Johnson

phoned his brother, Marquis Johnson, and told him that he hid “evidence” in a precise

location at the Levittown Trace Apartments and asked him to retrieve it, admonishing

5
    Miranda v. Arizona, 384 U.S. 436 (1966).
6
  Specifically, the police found in his pocket a bundle of small, clear, plastic Ziploc
baggies commonly used to package controlled substances. N.T., 6/1/2015, at 87.



                                     [J-131-2016] - 4
that the items should never see the light of day. Marquis did as his brother requested

and retrieved a blue plastic glove containing 167 packets of heroin, all in wax packets

stamped in red with “# 1 way to go,” and a money order for eighty dollars.

         A jury trial commenced in May 2015, at the conclusion of which Johnson was

convicted of the first-degree murders of both Talley and R.R., third-degree murder of

Talley’s unborn child, arson (endangering people), and possessing instruments of

crime.7     During the penalty phase, the Commonwealth presented evidence of four

aggravating factors as to Talley: torture; conviction of another murder at the same time

of Talley’s murder; involvement in the sale of narcotics at the time of the murder; and

knowledge of Talley’s pregnancy.8 N.T., 6/8/2015, at 192-95. The Commonwealth

pursued three aggravating factors with regard to R.R.: that R.R. was a witness to a

murder and was killed to prevent her from testifying; conviction of another murder at the

same time as R.R.’s murder; and that R.R. was less than twelve years old.9 Id. at 197-

200.

         Johnson presented evidence in support of four mitigating factors: his lack of a

significant history of prior criminal convictions; extreme mental or emotional disturbance

at the time of the murders; and the fact that he was twenty-one at the time of the

murders.10 Id. at 200. Johnson also presented an assemblage of evidence under the

catchall mitigating factor, 42 Pa.C.S. § 9711(e)(8), including evidence that Johnson’s life

up until the time of the murders was characterized by chronic and pervasive abuse,

neglect and abandonment; that he suffered brain damage and had been diagnosed with

7
     18 Pa.C.S. §§ 2502(a),(c), 2603(a), 3301, 907.
8
     42 Pa. C.S. § 9711(d)(8), (11), (13), (17).
9
     42 Pa.C.S. § 9711(d)(5), (11), (16).
10
     42 Pa.C.S. § 9711(e)(1),(2),(4).



                                        [J-131-2016] - 5
various mental illnesses; cycles of placement in and out of treatment programs; and a

complete lack of any semblance of stability or permanence.             The jury ultimately

sentenced Johnson to death for R.R.’s murder and life in prison for Talley’s murder.11

       The trial court denied Johnson’s post-sentence motions, after which Johnson

filed this timely appeal. He presents several issues for our review, challenging the

denial of his motions to suppress, evidentiary rulings, the sufficiency of the evidence,

the trial court’s refusal to allow Johnson to present certain mitigating evidence, the trial

court’s jury instruction during the penalty phase, the denial of his motion to preclude the

Commonwealth from seeking the death penalty, and the constitutionality of the three

statutory aggravating factors presented by the Commonwealth in connection with R.R.’s

murder .

                             I. Sufficiency of the Evidence

       In all death penalty cases, this Court reviews the sufficiency of the evidence to

ensure that it supports the verdicts of first-degree murder, whether or not the appellant

raises the issue.    Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005).              When

reviewing the sufficiency of the evidence, we consider whether the evidence presented

at trial, and all reasonable inferences drawn therefrom, when viewed in a light most

favorable to the Commonwealth as the verdict winner, support the jury's verdict beyond

a reasonable doubt. Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014). The

determination of whether sufficient evidence exists to support the verdict is a question of

law; accordingly, our standard of review is de novo and our scope of review is plenary.

Id.

11
      Johnson also received consecutive sentences of twenty to forty years of
imprisonment for third-degree murder and ten to twenty years of imprisonment for
arson, and a concurrent sentence of two and a half to five years for the possessing
instruments of crime conviction.



                                     [J-131-2016] - 6
       To establish first-degree murder, the Commonwealth must prove that a human

being was unlawfully killed, the defendant perpetrated the killing, and the defendant

acted with malice and a specific intent to kill. Id. “Specific intent to kill may be inferred

by the use of a deadly weapon upon a vital part of the body, and the Commonwealth

may prove the specific intent to kill necessary for first-degree murder wholly through

circumstantial evidence.” Id.

       The evidence, when viewed in the light most favorable to the Commonwealth,

establishes these elements beyond a reasonable doubt. To begin, Johnson admitted to

killing both Talley and R.R., thereby establishing that they were unlawfully killed and

that Johnson killed them. In his confession, he stated that Talley “made [him] kill her[,]”

and acknowledged killing R.R. so that she could not identify him as her mother’s killer

N.T., 6/1/2015, at 230, 233-35.

       Substantial evidence also demonstrated that both victims were killed by the use

of a deadly weapon on vital parts of the victims’ bodies. Dr. Ian Hood, a forensic

pathologist, testified that Talley suffered thirty-five stab wounds to her head, neck, chest

and abdomen. N.T., 5/28/2015, at 205. One wound perforated the common carotid

artery in her neck and two others entered her chest cavity, causing a collapsed lung and

internal bleeding. Id. at 206-08. While Talley was incapacitated from blood loss, a

plastic bag was secured over her head, “providing terminal asphyxia as a final

mechanism of death[.]” Id. at 232. R.R. was stabbed in the upper chest, just below her

collarbone. Id. at 194-95.

       There was also circumstantial evidence of Johnson’s guilt. Talley’s mother and

sister testified that when they left Talley’s home, Johnson remained in the apartment

with Talley and R.R. N.T., 5/28/2015, at 271; N.T., 5/27/2016, at 112. Fires were set

on or immediately beside the incapacitated Talley and R.R, N.T., 5/27/2015, at 186-88,




                                      [J-131-2016] - 7
and were discovered approximately half an hour after Talley’s mother and sister left, just

minutes after Johnson was observed fleeing the scene at a high rate of speed in

Talley’s vehicle. N.T., 5/29/2015, at 300. This evidence, when viewed in the light most

favorable to the Commonwealth, places Johnson in the apartment at the relevant time.

Moreover, Talley’s DNA was found under Johnson’s fingernails, which, according to

expert testimony, was not the result of casual contact with Talley. Id. at 186-87. Dr.

Hood testified that Talley’s body bore multiple defensive wounds and that the relatively

shallow depth of many of the stab wounds was the result of Talley’s struggle against her

assailant.   N.T., 5/28/2015, at 205, 210.      Johnson was observed to have recent

lacerations on his hands and fingers just a few hours after the murders, and he had

changed his clothes. N.T., 5/29/2015, at 233, 237-38.

       Johnson raises a single challenge to the sufficiency of the evidence, claiming that

it is insufficient to establish that he was the person who killed Talley and R.R. and set

the apartment on fire. Johnson’s Brief at 37. Notably, Johnson does not dispute the

evidence detailed above.     Instead, he directs our attention to other evidence.      For

instance, Johnson acknowledges that he fled Talley’s apartment complex in a hurry, but

argues that flight alone does not establish guilt. Id. at 38. He suggests that other

people involved in the drug trade could have wanted to harm Talley, and presents an

alternative scenario in which he arrived at the apartment only to find that it had been set

on fire and fled in a panic. Id. at 38-39. He also points to the lack of blood found on his

clothes and body, that his blood was not found in Talley’s apartment, and that his DNA

was not found on Talley. Id. at 39-40.

       These alleged deficiencies of physical evidence were, however, offset by other

evidence. For example, although Johnson points to the lack of blood on his clothing,

there was testimony that Johnson changed his clothes between the time of Talley’s




                                     [J-131-2016] - 8
family’s visit and his apprehension by the police a few hours later. N.T., 5/27/2015, at

113; N.T., 5/29/2015, at 41. Likewise, Johnson’s focus on the absence of incriminating

blood or DNA at the scene of the crime may be explained by testimony from a

Commonwealth witness that the blood and DNA samples recovered from Talley’s

apartment proved to be unsuitable for testing. N.T., 5/29/2015, at 122-126.

      More importantly, Johnson does not genuinely contest that the evidence

presented by the Commonwealth, when viewed in the light most favorable to it, was

legally sufficient to prove his guilt. Instead, his arguments seek to vitiate the weight of

the evidence supporting his convictions and to undermine the credibility of the

Commonwealth’s witnesses. Seen in this light, Johnson’s arguments are addressed to

the weight of the evidence supporting his convictions, not the sufficiency of the

evidence.   See, e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281–82 (Pa. Super.

2009). Johnson has not raised a weight of the evidence claim in this direct appeal, and

as such, it has not been preserved for appellate review. Pa.R.A.P. 302(a); see also

Commonwealth v. Freeman, 827 A.2d 385, 402 (Pa. 2003).

                                 II. Suppression Issues

      Johnson raises two issues in connection with the trial court’s denial of his

motions to suppress his statement to the police and evidence of him selling drugs with

Talley. Our standard of review for such claims provides that we may consider only the

Commonwealth's evidence and so much of the defense’s evidence as remains

uncontradicted when read in the context of the record as a whole. Commonwealth v.

Arter, 151 A.3d 149, 153 (Pa. 2016).       Where the record supports the suppression

court’s factual findings, we are bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error. Id. As an appellate court, however, we are

not bound by the suppression court's conclusions of law. Id.




                                     [J-131-2016] - 9
       Johnson first argues that the trial court should have suppressed his statement to

the police because the police did not inform him that they were going to question him

about the deaths of Talley and R.R. until after he waived his Miranda rights. Johnson’s

Brief at 25.     Johnson protests that he had no indication as to the purpose of the

interrogation and was under the reasonable (but mistaken) assumption that he was

stopped by the police and brought in for questioning because of outstanding arrest

warrants issued for summary, non-traffic citations. Id. at 28.

       A waiver of Miranda rights is valid where the suspect is aware of the general

nature of the transaction giving rise to the investigation. Commonwealth v. Dixon, 379

A.2d 553, 556 (Pa. 1977). “[O]nly when such knowledge is possessed by a suspect …

can [he] be said to understand the consequences of yielding the right to counsel.” Id.

This is because “[i]t is a far different thing to forgo a lawyer where a traffic offense is

involved than to waive counsel where first degree murder is at stake.” Commonwealth

v. Collins, 259 A.2d 160, 163 (Pa. 1969). When a defendant challenges the validity of

his Miranda waiver on this basis, the Commonwealth must establish, by a

preponderance of the evidence, that the defendant was aware of the reason for the

interrogation.   Dixon, 379 A.2d at 556.     The Commonwealth can meet this burden

through evidence of the circumstances surrounding the interrogation, such as “the fact

that the interrogation follows hard upon the criminal episode and there is no

circumstance lending ambiguity to the direction and purpose of the questioning.” Id.

       In the present case, the trial court found that substantial evidence supported

Johnson’s awareness that the police intended to question him about the fire and

murders rather than warrants for non-traffic summary offenses. Trial Court Opinion,

3/23/2016, at 16-17. This evidence included: Johnson’s knowledge of the fire and of

Talley’s and R.R.’s deaths, his understanding that the police wanted to inspect Talley’s




                                    [J-131-2016] - 10
vehicle as part of the investigation, and his possession of that vehicle. In light of these

facts and the tight timeline between the murders and the police taking Johnson into

custody, it was “completely illogical” for Johnson to think that a number of officers would

“swoop down on him, [and] tak[e] him into custody in a car that was owned by a

homicide victim or potential homicide victim … for some old summary citations, basically

what amounts to a dispute between himself and the local [d]istict [c]ourt.”          N.T.,

11/26/2014, at 19.

       The trial court’s factual findings are supported by evidence of record. Talley’s

cousin, Brittany Coles, testified that she knew Johnson through Talley.                N.T.,

11/25/2014, at 27.    At about 4:30 p.m. on the day of the murders, Ms. Coles told

Johnson that there was a fire in Talley’s apartment and that she could not get in touch

with Talley. Id. at 31. Talley’s sister, Paulina Burke, testified that while she was at the

hospital on the day of the fire, she received a phone call from Johnson. During this

conversation, she told him that Talley and R.R. died.        N.T., 9/16/2014, at 6; N.T.,

6/30/2014, at 134. Ms. Burke knew that Johnson was driving Talley’s car, and when

she asked him to bring it to the police station for their investigation, Johnson refused,

citing his outstanding warrants. N.T., 9/16/2014, at 6-7. At approximately 7:30 that

evening, only a few hours after being told of the fire and Talley’s and R.R.’s deaths,

uniformed police officers stopped Johnson while he was driving Talley’s vehicle, the

plates on which had been changed. N.T., 6/30/2014, at 123. When brought to the

police station following this felony stop, Johnson was taken to an interview room to be

interrogated by Detective Slattery and Detective Fuhrmann.            Id. at 100-01.      In

consideration of these facts,12 we find no error in the trial court’s conclusion that

12
   The record developed at trial established that the officers performed a felony stop
when taking Johnson into custody, N.T., 6/1/2015, at 25, and that the felony stop
procedure is more confrontational than a traffic stop. Id. No such evidence was
(continued…)

                                    [J-131-2016] - 11
Johnson was aware that the police intended to question him with regard to what

occurred in Apartment 604 of the Avalon Court Apartments.

       Johnson argues that his case is factually indistinguishable from Dixon.           We

disagree. In Dixon, a local magistrate convicted the defendant of malicious mischief

and ordered her to pay restitution at the rate of fifty dollars a month, beginning in March

1973, until the $500 judgment was satisfied. Dixon, 379 A.2d at 555. The magistrate

pointedly told the defendant that if she defaulted on her payments, a warrant would be

issued for her arrest and police officers would be sent to arrest her. Id. The defendant

failed to make even one payment, and as a result, a warrant for her arrest issued. Id.

       That summer, the body of the defendant’s young son was discovered in a

wooded area and a police investigation ensued. Id. at 554. On August 14, 1973, three

police officers appeared at the defendant’s home and asked her to go with them to the

police barracks. Id. The officers had in their possession the arrest warrant related to

defendant’s restitution delinquency, but because the defendant agreed to go with them,

they did not show it or mention it to the defendant. Id. at 555. The officers did not tell

the defendant why they wanted to speak with her. Id. at 554. At the barracks, the

defendant was placed in an interrogation room and asked whether she knew why the

officers wanted to speak with her. Id. at 555. The defendant responded affirmatively

and executed a Miranda wavier.

       The police immediately began to question the defendant about her son’s death,

to which she quickly confessed. Id. On appeal following her conviction for her son’s


(…continued)
presented during the suppression phase of these proceedings, and so we may not
consider it in our review of this suppression issue. See, e.g., In re L.J., 79 A.3d 1073,
1085 (Pa. 2013) (holding that this Court’s scope of review for suppression rulings is
limited to the record developed at the suppression hearing).



                                    [J-131-2016] - 12
murder, the defendant argued that her Miranda waiver was not knowing and voluntary

because she believed that the police appeared at her house because of her failure to

make restitution payments. Id. This Court agreed, concluding that the circumstances

exhibited that a “palpable ambiguity” existed as to the defendant’s understanding of why

she was being questioned. Id. at 557. Because the interrogating police officers took no

measures to dispel the ambiguity before obtaining her waiver, the defendant’s waiver

could not be deemed to have been knowingly and intelligently made. Id.

      It is Johnson’s position that, just like the defendant in Dixon, he knew that there

were outstanding arrest warrants for him on summary citations. Johnson’s Brief at 28.

He also points out that he was apprehended in a vehicle that was not his, thus creating

another ambiguity as to the topic of the interrogation. Id. at 29. Johnson’s arguments,

however, entirely ignore all of the other above-reviewed information he possessed at

the time of his arrest and interrogation. In Dixon, the ambiguity stemmed, in large part,

from a magistrate’s explicit warning that the defendant would be arrested if she did not

comply with the terms of the restitution order (and her knowledge that she had not made

any payments).     Dixon, 379 A.2d at 557.      Here, in significant contrast, Johnson’s

knowledge of relevant events at the time of his arrest and interrogation do not support a

finding of any such ambiguity.

      For his second suppression issue, Johnson claims that no probable cause

existed to support the issuance of a warrant for samples of his DNA. Johnson’s Brief at

31. Generally, to be valid, a search warrant must be issued by a neutral and detached

magistrate and supported by probable cause. U.S. Const. amend. IV; Pa. Const. art. 1

§ 8; Commonwealth v. Lyons, 79 A.3d 1053, 1063–64 (Pa. 2013). Probable cause

exists where the totality of the circumstances set forth in the affidavit provide a fair

probability that evidence of a crime will be found in a particular place. Lyons, 79 A.3d at




                                    [J-131-2016] - 13
1064. The issuing magistrate must apply this “totality of the circumstances” test in a

practical, common-sense, and not overly-technical, manner.             Commonwealth v.

Johnson, 42 A.3d 1017, 1031 (Pa. 2012).          When a trial court reviews an issuing

authority's decision to issue a search warrant, it must affirm unless there was no

substantial basis for the issuing authority’s decision. Lyons, 79 A.3d at 1064. In turn,

on appeal, this Court will affirm the decision of the trial court unless we conclude that it

committed an error of law or made a factual finding without record support. Id.

       Here, the application for a search warrant and accompanying affidavit of

probable cause were filed by Detective Fuhrmann at 1:33 a.m. on November 26, 2013,

within hours of the end of the interrogation of Johnson. The warrant application sought,

inter alia, DNA samples by means of oral swabbing, swabbing of both hands, fingernail

scrapings from both hands, and hair samples.13           Application for Search Warrant,

11/26/2013, at 1. In the affidavit of probable cause, Detective Fuhrmann detailed the

fire in Apartment 604 and discovery of the bodies of Talley and R.R; the determination

that Talley had multiple stab wounds, including some that looked to be defensive

wounds; and the conclusion that the fire appeared suspicious in nature. Affidavit of

Probable Cause, 11/26/2013, at 1-2.         He stated that based on his training and

experience, he was aware that “arson is sometimes used to destroy or conceal

evidence of a crime.” Id. at 2. Detective Fuhrmann stated that Nigeria Gary, a resident

of the apartment complex, observed Talley’s vehicle speed out of the parking lot

approximately ten minutes before the fire was detected. Id. at 3. Detective Fuhrmann

also explained that earlier that evening, Paulina Burke informed the police that Johnson


13
  Beyond this biological evidence, the warrant also sought to collect Johnson’s clothing
and to photograph his body. Application for Search Warrant, 11/26/2013, at 1. Johnson
does not challenge the seizure of his clothes or photographs of his body.



                                     [J-131-2016] - 14
was at the Levittown Trace Apartments, and as a result, the police found Johnson there,

in possession of Talley’s vehicle, the license plates on which had been changed. Id. at

2. Detective Fuhrmann further explained that in his interview with Johnson earlier that

evening, Johnson admitted to being with Talley and R.R. just prior to their deaths and to

taking the Cadillac from Avalon Court, and that he “gave conflicting accounts as to his

possible involvement.” Id. The detective also indicated that Johnson had a cut that

appeared recent on the outside edge of one of his fingers. Id.

       The magistrate issued the search warrant based on these sworn allegations.

The trial court found the warrant sufficiently supported by probable cause, reasoning as

follows:

             The probable cause affidavit … set forth the facts regarding
             the time and place of the fire, the death of [Talley] and R.R.
             and the stab wounds observed on the bodies. The affidavit
             also set forth facts regarding [Johnson’s] connection with
             those events. [Johnson] admitted that he was in the
             apartment with the victims [on] the day of the fire. Within
             minutes of the fire being detected, [Johnson] fled the scene
             in a Cadillac at a high rate of speed, striking a parked car in
             the process. Within four hours of the fire, [Johnson] was
             stopped driving the Cadillac. At that time, the Cadillac
             displayed a license plate that did not belong to the vehicle.
             Just hours after the murders, police observed a cut on
             [Johnson’s] hand. When he was questioned by the police as
             to his whereabouts at the time of the murders, [Johnson]
             gave conflicting accounts. [Johnson’s] presence at the
             scene both before and after the fire started, his hasty flight
             from the scene in the apartment owner’s car, his inconsistent
             statements to police and the injury to his hand provided
             sufficient circumstances, when viewed in a practical,
             common sense and realistic fashion, for the issuing authority
             to conclude that there was a fair probability that evidence of
             a crime would be found on [Johnson’s] person. The motion
             to suppress … for failure to set forth probable cause was,
             therefore, properly denied.


Trial Court Opinion, 3/23/2016, at 20-21.



                                   [J-131-2016] - 15
      Based upon our standard of review, we find no error in the trial court’s ruling.

The trial court’s findings are grounded in the affidavit’s allegations and the trial court

applied the proper legal standard, as it considered whether the allegations established a

fair probability that evidence that could tie Johnson to these crimes could be found

through his DNA.

      Johnson complains that while the allegations might establish that he was present

at Talley’s apartment and then fled, neither of these facts by themselves establishes

probable cause for a warrant related to his involvement in the murders. Johnson’s Brief

at 34-35.   To begin, Johnson’s argument ignores many of the other substantive

allegations set forth in the affidavit of probable cause, such as that he was found in

possession of Talley’s vehicle; the change of license plates; the cut on his hand and

Talley’s defensive wounds; and the inconsistent nature of his answers to police

questions. Moreover, allegations amounting to probable cause need not be considered

in isolation; rather, a probable cause determination is based on the totality of the

circumstances. Lyons, 79 A.3d at 1064. Consideration of these facts, in addition to

Johnson’s admitted presence in Talley’s home immediately before the fire was detected

(and his frenzied flight from the apartment), all coalesce to establish a sufficient basis

for the issuance of the search warrant.

      Johnson further claims that there was no basis for the issuance of a nighttime

warrant. In addition to probable cause, an application for a warrant for a nighttime

search must also show “some reason why the search cannot wait until morning.”

Commonwealth. v. Bowmaster, 101 A.3d 789, 794 (Pa. Super. 2014); see also

Pa.R.Crim.P. 203(E) (“No search warrant shall authorize a nighttime search unless the

affidavits show reasonable cause for such nighttime search.”).            This additional

requirement is in recognition of the long-established doctrine that a nighttime intrusion




                                    [J-131-2016] - 16
imposes a greater burden on a person’s privacy interests. See Pa.R.Crim.P. 203(E),

Cmt. This enhanced burden on an individual’s privacy, however, is not implicated when

the subject is in police custody. See Commonwealth v. Cross, 496 A.2d 1144, 1149

(Pa. 1985) (finding a challenge to issuance of nighttime warrant failed because

appellant was in custody); Commonwealth v. Berkheimer, 57 A.3d 171, 179 n.10 (Pa.

Super. 2014) (same). Furthermore, with regard to a nighttime warrant for the collection

of biological evidence, this Court has held that where a defendant has been lawfully

arrested and is in police custody, the seizure of hair samples and fingernail scrapings is

“so minor an imposition as to constitute only the slightest intrusion, if indeed such

constituted an intrusion,” especially in light of the fact that “the hair and fingernails could

easily have been washed and brushed clean of any traces of relevant evidence.”

Cross, 496 A.2d at 1150.

       We face a similar scenario here. In addition to Johnson being in police custody,

the transient nature of the evidence sought to be collected supports the trial court’s

determination. The trial court fairly concluded that the requisite reasonable cause for a

nighttime warrant existed because “[i]nvestigators were searching for trace evidence on

[Johnson’s] person, evidence that is easily lost by the simple act of washing or the mere

passage of time.” Trial Court Opinion, 3/23/2016, at 21. For these reasons, we find no

trial court error on this issue.

                                     III. Prior Bad Acts

       Johnson challenges the trial court’s decision to introduce evidence relating to his

drug dealing partnership trade with Talley pursuant to Rule 404(b) of the Pennsylvania

Rule of Evidence.14 This evidence included the empty, clear Ziploc baggies found on

14
    We review these claims mindful that the admission of evidence is within the
discretion of the trial court, and we will not disturb its rulings absent an abuse of
discretion. Commonwealth v. Weiss, 776 A.2d 958, 967 (Pa. 2001).



                                      [J-131-2016] - 17
his person at the time of his arrest as well as the bags of heroin retrieved by Johnson’s

brother, Marquis, at Johnson’s request from the Levittown Trace Apartments laundry

room. Johnson’s Brief at 44, 46. The bags retrieved from Levittown Trace Apartments

were stamped “#1 way to go” and were identical to bags found in Talley’s car (used by

Johnson when hastily leaving Talley’s apartment), and scattered around Talley’s head

at the murder scene.     Id. at 46.    The trial court also permitted the introduction of

statements made by Johnson to Marquis in which he admitted to selling drugs with

Talley. Id. Finally, the trial court allowed the introduction of various electronic evidence

of Johnson’s drug sales conducted with Talley, including text messages between them

and a videotaped drug buy executed by a confidential informant in Talley’s apartment.

Id. at 44, 46.

       The trial court rejected Johnson’s contention that this evidence of prior drug

dealing activities was inadmissible under Rule 404(b)(1) of the Pennsylvania Rule of

Evidence, which prohibits the use of evidence of “a crime, wrong, or other act … to

prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Pa.R.E. 404(b)(1). The trial court ruled that

the evidence was admissible under one or more of the exceptions to Rule 404(b)(1) in

order to prove “motive, opportunity, intent, preparation, plan, knowledge and identity.”

Trial Court Opinion, 3/23/2015, at 25 (citing Pa.R.E. 404(b)(2)). On appeal, Johnson

argues that no exceptions in Rule 404(b)(2) apply in these circumstances because there

was no logical connection between the admitted evidence and the murders. Johnson’s

Brief at 52. Johnson argues that there was no actual proof as to when the heroin bags

were hidden in the laundry room or that they were stolen from Talley’s apartment. Id.

       In its written opinion, the trial court presents a general statement of the decisional

law relating to Rule 404(b), including citation to appellate decisions applying various of




                                      [J-131-2016] - 18
the Rule 404(b)(2) exceptions in specific factual scenarios.            Trial Court Opinion,

3/23/2015, at 24-26. In ruling that the disputed evidence was admissible under one or

more of these exceptions, however, the trial court did not conduct a principled analysis

of any of the Rule 404(b)(2) exceptions. For example, while the trial court ruled that the

evidence was admissible to prove “identity,” it failed to acknowledge that the “identity”

exception under Rule 404(b)(2) requires proof that the bad acts and the crime on trial

share “an almost uncanny similarity in all the details,” Commonwealth v. Wable, 114

A.2d 334, 337 (Pa. 1955), and be “so nearly identical in method as to earmark them as

the handiwork of the accused … like a signature.” Commonwealth v. Rush, 646 A.2d

557, 560-61 (Pa. 1994) (quoting McCormick, Evidence, § 190 (1972 2d ed.);

Commonwealth v. Bryant, 530 A.2d 83, 86 (Pa. 1987). Of course, Johnson’s prior drug

selling activities with Talley were plainly not “signature crimes” at all vis-a-vis his alleged

crimes on November 25, 2013 (e.g., arson and murder). These were not “signature

crimes.”

       Instead of attempting to analyze whether the contested evidence fit into one of

the Rule 404(b)(2) exceptions, the trial court focused on whether it was admissible

circumstantial evidence that Johnson committed the crimes with which he was charged.

In connection with its “identity” analysis, the trial court determined that “heroin was

inextricably intertwined with the murders of [Talley] and her children and the fires that

were set inside their apartment.” Trial Court Opinion, 3/23/2015, at 25. Reviewing the

challenged evidence, the trial court then concluded that it demonstrated that Johnson

“was the individual who took the heroin, killed the victims and then lit two fires, making

the death of the victims and the destruction of the evidence certain.” Id. at 25-26. On

appeal, the Commonwealth likewise insists that the evidence in question was

admissible, but not because it was propensity evidence allowable under a Rule




                                      [J-131-2016] - 19
404(b)(2) exception.    Instead, the Commonwealth argues that the evidence was

circumstantial proof that Johnson committed the crimes with which he was charged, as

it was “inextricably linked with the murder of Ms. Talley and the fire set inside her

apartment.” Commonwealth’s Brief at 45.

       Despite the lack of a cogent argument to support the trial court’s decision to

permit the introduction of the evidence, we nonetheless conclude that there was no

error in admitting the evidence pursuant to Rule 404(b), although we do so for reasons

other than those relied upon by the trial court.15 To begin, Rule 404(b)(2) sets forth nine

exceptions to Rule 404(b)(1)’s prohibition against the use of propensity evidence.16 The

official Comment to Rule 404 explains that this list of exceptions is non-exhaustive.

Pa.R.E. 404, Comment.       As such, courts are not restricted to the nine exceptions

expressly listed in Rule 404(b)(2) when exercising their discretion to permit the

admission of evidence of prior crimes, wrongs and acts, so long as the evidence is used

for purposes other than to prove character or a propensity to act in accordance with

traits of character.

       Although not specifically referencing Rule 404(b), this Court identified one such

additional exception in our decision in Commonwealth v. Stanley, 446 A.2d 583 (Pa.

1982). In Stanley, the appellant objected to the introduction of evidence to prove his

prior first-degree murder conviction while on trial for a violation of 18 Pa.C.S. § 6105,

which prohibits an individual convicted of a “crime of violence” from possessing

15
   “We may affirm a trial court's evidentiary ruling if we deem it to have been correct on
grounds other than those specified by the court itself, particularly where the additional
reason is apparent from the record.” Commonwealth v. Edwards, 903 A.2d 1139, 1157
n.19 (Pa. 2006).
16
   “Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence
of mistake or accident.” Pa.R.E. 404(b)(2).



                                    [J-131-2016] - 20
firearms.    Id. at 588.   The appellant argued that introduction of this evidence was

prejudicial, particularly in light of his willingness to stipulate to the conviction. Id. The

Commonwealth disagreed, arguing that section 6105 required proof of the commission

of a separate prior crime, and that as a result it was entitled to introduce evidence of the

separate prior crime in order to prove the crime presently at issue. Id. This Court

agreed with the Commonwealth, ruling that “appellant's murder conviction was

undisputedly material and relevant to proving that he committed a ‘crime of violence.’”

Id. As a result, it was “proper” evidence that the Commonwealth was entitled to use to

prove its case. Id.

        Accordingly, our decision in Stanley confirms that where proof of an offense with

which a defendant is charged requires proof of another crime or wrong, evidence of the

other crime or wrong is necessarily admissible.17             In the present case, the

Commonwealth charged Johnson with, inter alia, two counts of second-degree murder,

alleging that the murders of Talley and R.R. were committed in the course of a robbery

of Talley’s heroin.18 See N.T., 6/2/2015, at 165-66. As a result, the Commonwealth

was entitled to introduce evidence that was relevant to, and probative of, Johnson’s

alleged robbery of Talley’s heroin -- even if the introduction of that evidence disclosed

Johnson’s prior bad acts to the jury.

        The evidence challenged by Johnson was in fact all directly relevant and

admissible to prove that Johnson stole heroin from Talley during the course of events


17
   See also 1 Imwinkelried, Uncharged Misconduct Evidence § 2:11 (2005) (explaining
that evidence of an uncharged act is admissible where “the proponent can characterize
the act as part of a discrete event charged[;]” for instance, where “[t]he charge is
robbery, but the predicate proving the force is the rape. … the prosecutor is entitled to
prove the rape as an essential part of the charged event.”).
18
     The jury acquitted Johnson of these charges.



                                     [J-131-2016] - 21
leading to her murder and that of her daughter. Evidence of Johnson’s collaborative

drug selling activities with Talley (including his statements, the electronic evidence and

the videotape) were all relevant and admissible to prove his knowledge of her heroin

supply, including the quantities she possessed and where they were located in her

apartment.     The bags of heroin that Marquis recovered from Levittown Trace

Apartments at Johnson’s direction, in packaging identical to those found in Talley’s

apartment, were relevant and admissible to prove that Johnson had stolen these drugs

from Talley.

       Accordingly, although we do so for reasons other than those relied upon by the

trial court, we conclude that there was no error in connection with the admission of this

evidence. The evidence was relevant and admissible to prove that Johnson committed

a robbery in connection with the murders of Talley and R.R., and was therefore

admissible to prove the second-degree murder charges.

                                   IV. Statement to Marquis

       Johnson next challenges the admission of certain testimony by his brother

Marquis.     Johnson’s Brief at 55.    Marquis testified that during a conversation with

Johnson “no more than five days” before the murders, Johnson told him, “I’m willing to

do anything to make a come up.” N.T., 6/1/2015, at 63-64. Marquis further stated that

his brother said that “anything” included his willingness to “shoot someone … or be

involved with anything[.]” Id. at 64. Marquis indicated that he understood “make a

come up,” to refer to “coming up with income.” Id. Over objections by Johnson that this

testimony was not relevant and constituted impermissible “prior bad acts” evidence that

did not fit within any of the exceptions provided in Rule 404(b)(2), the trial court

disagreed, ruling that this testimony was admissible to “establish motive, identity, intent




                                      [J-131-2016] - 22
and premeditation.” Trial Court Opinion, 3/23/2016, at 27. Johnson raises the same

objections here.

       Rule 404(b) has no applicability in this context. On prior occasions, this Court

has ruled that extrajudicial statements relating to a specific “crime, wrong or act” may be

admissible so long as they do not constitute impermissible hearsay.               See, e.g.,

Commonwealth v. May, 887 A.2d 750, 762 (Pa. 2005); Commonwealth. v. Simmons,

662 A.2d 621, 635 (Pa. 1995). Here, however, Marquis’ testimony regarding Johnson’s

alleged statements were not evidence of any particular “crime, wrong or act” by

Johnson. Rather, they constituted mere statements of his desire to make money (or,

more generally, to attain success) and his willingness to do anything (even to kill) to

accomplish this end.

       As a result, Marquis’ testimony was not inadmissible under Rule 404(b), as this

rule was not implicated. Moreover, the trial court did not err in denying Johnson’s

relevance objection, as the testimony was clearly relevant evidence. Rule 401 of the

Pennsylvania Rules of Evidence provides a broad definition of relevant evidence, as

evidence is relevant if it “logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable, or supports a reasonable inference or

presumption regarding the existence of a material fact.” Commonwealth v. Hawk, 709

A.2d 373, 376 (Pa. 1998) (quoting Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa.

1992)). Even evidence that merely advances an inference of a material fact may be

admissible.   Id.   Marquis’ testimony describing Johnson’s alleged statements is an

example of such an inference, as one of the Commonwealth’s theories at trial was that

Johnson’s expression of his intention to “make a come up” provided him with a motive

to kill Talley and steal her heroin supply. See N.T., 9/16/2014, at 91-92; N.T., 6/2/2015,

at 108-09.




                                     [J-131-2016] - 23
       Importantly, Johnson did not assert at trial or present here on appeal, any

hearsay objections to Marquis’ testimony about his (Johnson’s) extrajudicial statements.

Accordingly, whether this testimony constituted inadmissible hearsay or, conversely,

satisfied one or more exceptions to the hearsay rule, is not before this Court.

               V. Unconstitutional Limitation of Mitigating Evidence

       Section 9711(e) enumerates eight mitigating circumstances for which a

defendant may present evidence during the penalty phase of a capital prosecution. See

42 Pa.C.S. § 9711(e).     Section 9711(e)(8), sometimes referred to as the “catchall”

mitigator, permits a capital defendant to present evidence “concerning the character and

record of the defendant and the circumstances of his offense.” 42 Pa.C.S. § 9711(e)(8).

Under section 9711(e)(8), Johnson sought to have his mitigation expert, Carol Krych, 19

testify to “a multi-generational history of … continuous abusive, neglectful behavior,” as

well as chronic poverty, drug abuse and mental illness suffered by Johnson’s

grandparents, parents, and aunts and uncles. Johnson’s Brief at 62.20 Johnson sought

to introduce such evidence in support of his “concept” that due to the pervasiveness of

abuse in his extended family’s history, abusive and criminal behavior had become

normalized and “he … never had a chance to get out of this environment[.]”           N.T.,

6/5/2015, at 19.



19
   Ms. Krych described herself as “a capital mediation specialist, as well as a licensed
alcohol and drug counselor” and “also a private investigator.” N.T.,6/5/2015, at 5.
20
    Johnson identifies the following areas of Ms. Krych’s testimony as wrongfully
excluded: allegations of abuse; neglect or drug abuse spanning three generations of
Johnson’s family (as substantiated by court or agency records); the lack of “consistent
supportive resources” throughout the large family due to “poverty, extreme dysfunction
and arrests;” multi-generational reports of mental health issues, sibling and parental
animosity, corporal punishment; and involvement with the criminal justice system.
Johnson’s Brief at 66.



                                    [J-131-2016] - 24
       The trial court limited the admission of this evidence.21 Drawing a boundary, the

trial court reasoned that testimony regarding “any event in a relative’s life that was

somehow made part of the family structure or that was made known to [Johnson], and

therefore could be said to have had an impact upon him, would be relevant and

admissible[,]”22 but that “[e]vidence from generations past regarding events at which

[Johnson] was not present or of which he had never been made aware is not relevant or

material to the personal history or character of [Johnson]” and were therefore

inadmissible.   Trial Court Opinion, 3/23/2016, at 36-38.       Heralding that the Eighth

Amendment requires a jury to “consider and give full mitigating effect to any relevant

mitigating evidence[,]” Johnson argues that the trial court’s ruling was an

unconstitutional infringement on his right to present mitigating evidence.        Johnson’s

Brief at 63.

       It is unconstitutional for a court to bar the presentation of relevant mitigation

evidence during the penalty phase of a capital trial. Commonwealth v. King, 721 A.2d

763, 776 (Pa. 1998) (discussing Lockett v. Ohio, 438 U.S. 586 (1978)); Saffle v. Parks,

494 U.S. 484, 490 (1990); Eddings v. Oklahoma, 455 U.S. 104 (1982)).                    This

pronouncement only applies to mitigation evidence that is relevant. Commonwealth v.

Hairston, 84 A.3d 657, 674 (Pa. 2014) (providing that evidence of mitigating

circumstances must satisfy the threshold requirements of being both relevant and

admissible). As a general matter, evidence is relevant if it has any tendency to make a

21
   The admission of mitigation evidence is within the discretion of the trial court. See,
e.g., Commonwealth v. Hairston, 84 A.3d 657, 674 (Pa. 2014).
22
   It is noteworthy that the trial court permitted testimony regarding Johnson’s mother’s
turbulent life not only prior to his birth, but also prior to her relationship with Johnson’s
father, as well as substantial testimony regarding the violent, dysfunctional and deeply
unstable relationship that existed between Johnson’s parents before he was born. See
N.T., 6/5/2015, at 27-45.



                                     [J-131-2016] - 25
fact more or less probable than it would be without the evidence and the fact is of

consequence in determining the action. Pa.R.E. 401.

      Johnson attempts to establish the relevance of the excluded evidence based

upon a comment to the American Bar Association Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases 10.7 (“Guideline 10.7”).

Johnson’s Brief at 63-64.    Guideline 10.7 provides that when developing mitigation

evidence, defense counsel should seek records and information “concerning not only

the client, but also his parents, grandparents, siblings, cousins and children” because

“[a] multi-generational investigation extending as far as possible vertically and

horizontally frequently discloses significant patterns of family dysfunction and may help

establish or strengthen a diagnosis or underscore the hereditary nature of a particular

impairment.” Id. at 64 (quoting Guideline 10.7, Cmt.). Based on this comment, Johnson

declares that his evidence of three generations’ worth of “trauma inducing bio-psycho-

social risk factors” and agency intervention in the family should have been deemed

relevant and admissible. Id. at 65.

      Johnson argues that this Court has recognized this concept in two prior cases,

Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006), and Commonwealth v. Williams,

863 A.2d 505 (Pa. 2004). Johnson’s Brief at 65. A review of these cases, however,

indicates that this Court has never endorsed Guideline 10.7 as a basis for the admission

of evidence in death penalty cases. In Spotz, we acknowledged only that Guideline

10.7 recognizes that defense counsel’s duty to pursue mitigation evidence extends to

investigating prior convictions that could be used as aggravating circumstances. Spotz,

896 A.2d at 1226. In Williams, Chief Justice Saylor cited to Guideline 10.7 (among

other guidelines) for the same proposition in a dissent. Williams, 863 A.2d at 528




                                      [J-131-2016] - 26
(Saylor, J., dissenting). Notably, Chief Justice Saylor acknowledged that this Court “has

not endorsed or adopted [the ABA Guidelines] on a wholesale basis.” Id. at 527 n.6.

       Beyond drawing our attention to Spotz and Williams, Johnson does not articulate

a principled argument for the adoption of the comment to Guideline 10.7 as a reason for

the admission of evidence. On its face, the comment is merely a prescriptive for capital

defense counsel’s obligation to thoroughly investigate mitigation evidence. It is, for lack

of a better term, advice to defense counsel recommending potentially fertile sources of

mitigation evidence. It does not, as Johnson now contends, provide any substantive

basis to establish a per se rule requiring the admissibility of every type of evidence

referenced in the comment. The comment does not address the issue Johnson raises

here, specifically whether all evidence of a family history of abusive and neglectful

behavior, poverty, drug abuse and mental illness -- suffered by Johnson’s grandparents,

parents, and aunts and uncles, and of which Johnson had no knowledge or familiarity --

is admissible even if he cannot establish that it had any material effect on his character,

his record, or the circumstances of his offense. See 42 Pa.C.S. § 9711(e)(8).

       We cannot say that, in a future case, we might well find that the type of “family

history” evidence that Johnson sought to offer into evidence is admissible.          Here,

however, we hold that Johnson has failed to provide any persuasive argument or

advocacy for this Court to adopt his position.

                 VI. Penalty Phase Jury Instruction and Verdict Slip

       Johnson asked the trial court to address each discrete mitigating circumstance

that he offered under section (e)(8) separately when instructing the jury and to list them




                                    [J-131-2016] - 27
separately on the verdict slip.23 The trial court denied this request, but provided the

following charge to the jury:

                     The defense has alleged and presented evidence to
              support various mitigating circumstances. They are also
              defined by statute, and I will go through those now. First, that
              the defendant has no significant history of prior criminal
              convictions. Second, that the defendant was under the
              influence of extreme mental or emotional disturbance at the
              time of the killing. Third, the age of the defendant at the time
              of the crime. Specifically, the defense has offered by way of
              mitigating that the defendant was [twenty-one] years old at
              the time the crimes were committed.

                      And fourth, this has been referred to as the catch-all,
              but it is actually more specific than that. The fourth area of
              mitigation circumstances … alleged by the defense is any
              other evidence of mitigation concerning the character and
              record of the defendant and the circumstances of his
              offense.

                      Now, under that mitigating circumstance[,] the
              defense has made a number of arguments regarding the
              character and record of the defendant and the
              circumstances of the offense. They have argued that he has
              impaired neurological functioning. They have argued lack of
              stability. They have argued maternal neglect or general
              neglect. They have argued maternal rejection. They have
              argued physical abuse.       They have argued that the
              defendant lost his father. They have argued that his family
              was involved in the criminal justice system in [sic] various
              criminal conduct. They have argued institutional failure.
              They have argued the effect of multiple adverse childhood

23
    Johnson identifies the following discrete mitigating circumstances: his history of
mental illness for which he was not medicated at the time of the crimes; the
physical/psychological trauma he has endured since childhood; impaired neurological
functioning; lifelong neglect, verbal and physical abuse (including torture); the death of
his father, the only person to whom Johnson felt attached, at age seven; his
immediately family’s severe dysfunction, including extensive involvement with the
criminal justice system; institutional failure; the effect of chronic stress and multiple
adverse childhood experiences, which created a high risk of developing maladaptive
behaviors; and evidence that he “wanted to do well.” Johnson’s Brief at 56-57.



                                    [J-131-2016] - 28
              experiences on the defendant. They have argued that he
              suffers from mental illness and was not medicated at the
              time of the crime. They have argued that the defendant
              desires to do well in his life and that there are other
              circumstances you may consider.

                      All of those arguments, all of those arguments relate
              to the mitigating circumstance number four. That is one
              mitigating circumstance. But you may consider all of those
              facts in support of that mitigating circumstance.

                      I want to be clear. One, what I have just listed for you
              is not an exhaustive list of what the defendant argued under
              that mitigating circumstance. It will be for you to recall
              everything that Mr. Fioravanti has presented and argued to
              you that would support that mitigating circumstance. I also
              want to be very clear that neither I nor Mr. Fioravanti -- my
              instructions or Mr. Fioravanti’s arguments should limit you in
              terms of what you can find as a mitigating circumstance or
              mitigating evidence under that catch-all mitigating
              circumstance. Any other mitigating factor relating to the
              character and record of the defendant and circumstances of
              his offense may be -- should be considered by you. There is
              no limit to the mitigation that you may find under this factor
              so long as it arises from the evidence.
N.T., 6/8/2015, at 201-04.

       Johnson argues that the United States and Pennsylvania Constitutions requires a

jury to consider all mitigating factors, and that grouping all non-statutorily defined

mitigating evidence under one category creates the risk that the jury will not give the

evidence of each non-statutory mitigating factor separate and equal consideration.

Johnson’s Brief at 58-60. Johnson contends that the failure to address each factor

individually in the jury instruction and to include each mitigating circumstance separately

on the verdict slip could have led the jury to “discount” their importance during

deliberations. Id. at 58-61.

       This Court recently rejected the argument that Johnson now advances.            The

defendant in Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013), asked the trial court

to charge the jury separately on each of the seven claims of mitigating evidence that he


                                    [J-131-2016] - 29
presented under section 9711(e)(8) and for the verdict slip to reflect them separately.

The trial court declined to do so, instead instructing the jury that it could find as a

mitigating factor “any evidence of mitigation concerning the character and record of the

[d]efendant and the circumstances of [d]efendant’s offense.” Id. at 398. On appeal, the

defendant argued that the trial court’s refusal to give his requested instruction caused

the jury to give less consideration to the evidence he presented of non-statutory

mitigation factors. Id. at 399. Rejecting the argument, this Court explained that there is

no authority or sound legal basis for requiring a trial court to enumerate, either in jury

instructions or on verdict slips, every discrete category of catch all mitigation evidence

presented. Id. at 400.

       The defendant in Mattison candidly admitted that no Pennsylvania statute or

case law supported his argument, and he instead directed us to federal cases

prohibiting state courts from restricting a capital defendant’s presentation of relevant

mitigating evidence.     Id. at 399 (citing Hitchcock v. Dugger, 481 U.S. 393 (1987);

Skipper v. South Carolina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104

(1982); Lockett v. Ohio, 438 U.S. 586 (1978)). This Court reasoned, however, that the

defendant’s claim confused the distinction between allowing a jury to consider

mitigating evidence and guiding its consideration of the mitigating evidence. Id. at 400.

The federal cases at issue involved instances in which the trial court either restricted the

type of mitigation evidence presented or advised the jury to ignore non-statutory

mitigation evidence. Id. at 399-400. We concluded that where a trial court allows the

contested, non-statutory mitigation evidence to go to the jury and guides its

consideration by instructing the jury in conformance with the language of section

9711(e)(8), there is no error in the trial court’s instruction. Id. at 400 (discussing

Commonwealth v. King, 721 A.2d 763, 777 (Pa. 1998)).




                                     [J-131-2016] - 30
       Our decision in Mattison disposes of Johnson’s claim.24         When a defendant

presents mitigation evidence under section 9711(e)(8), the trial court must instruct the

jurors only in conformance with the language of section 9711(e)(8). A trial court is not

required to instruct the jury as to each theory of mitigation raised under the broad

banner of section 9711(e)(8), and the verdict slip is not required to reflect each such

theory separately.25

        VII. Denial of Motion to Bar Death Penalty Due to Nature of Crimes

       Johnson argues that the Commonwealth should not have been permitted to

pursue the death penalty because the “nature and brutality” of the crimes would

overwhelm the jury and negate its ability to impartially consider the mitigation evidence

he put forth, thereby violating his constitutional right to have the jury “consider and give

effect to all mitigating evidence.” Johnson’s Brief at 72-73.26 Johnson asserts that the

death penalty is intended for only the worst offenders and the very worst crimes, and

argues that the jury here was predisposed to place him in that unenviable category

because of the nature of the crimes. Id. at 69-73.

24
  Johnson acknowledges Mattison but does not discuss it except to concede that this
Court rejected the argument he presently advances therein. Johnson’s Brief at 56 n.6.
25
    The trial court’s instruction as reproduced above did identify many of the specific
claims of mitigation that Johnson raised under section 9711(e)(8). This jury instruction
therefore went well beyond the instruction the trial court was required to give, and was
far more detailed than the instruction in Mattison.
26
    In his discussion of this issue, Johnson also argues for a “categorical ban” on the
death penalty based upon various United States Supreme Court decisions that hold
certain categories of offenders may not be subjected to the death penalty. Johnson’s
Brief at 72-73, 78 (discussing Kennedy v. Louisiana, 554 U.S. 407 (2008); Roper v.
Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002)). Johnson did
not raise this issue before the trial court or in his statement of matters complained of on
appeal; as such, it is waived. Hairston, 84 A.3d at 672 (finding issue waived in capital
case where defendant failed to include it in his statement of matters complained of on
appeal); Freeman, 827 A.2d at 402.



                                     [J-131-2016] - 31
       The trial court found this argument meritless, reasoning that “the ultimate

question with regard to this claim is whether the jurors would be able to put aside any

bias, sympathy, prejudice or emotion” and decide the case based upon the evidence

and the jury instructions. Concluding that voir dire revealed that a “fair and impartial”

jury was seated, that it repeatedly instructed the jury “to make a dispassionate

evaluation of the evidence[,]” and that the jury found that mitigating factors outweighed

aggravating factors with regard to Talley’s murder (but not R.R.’s murder), the trial court

determined that the jury properly considered the mitigating evidence.            Trial Court

Opinion, 3/23/2016, at 35-36.

       We agree that there is no merit to this claim. Johnson’s argument is that the

Commonwealth should not have been permitted to pursue the death penalty because

the particularly brutal nature of his crimes would blind the jury to its duty to consider and

weigh mitigation evidence. Taken to its logical conclusion, Johnson’s position would

result in the anomalous situation in which the more heinous the crime, the less likely

that its perpetrator would be eligible for the death penalty because of the overmastering

influence the circumstances could have on the jury’s impartiality. Criminals who commit

the most egregious crimes would be effectively exempt from the death penalty, when

the death penalty has been reserved for precisely such crimes.            See Kennedy v.

Louisiana, 554 U.S. 407, 420 (2008) (“[C]apital punishment must be limited to those

offenders who commit a narrow category of the most serious crimes and whose

extreme culpability makes them the most deserving of execution.”). This would be a

bizarre and irrational outcome, and we do not endorse it.27

27
     The jury did find multiple mitigating factors as to both murders. See Talley
Sentencing Verdict Slip, 6/18/2015, at 3-4; R.R. Sentencing Verdict Slip, 6/18/2015, at
3. This is strong evidence that the jury was, in fact, able to consider and weigh the
mitigating evidence.



                                     [J-131-2016] - 32
                    VIII. Constitutionality of Aggravating Factors

      In his final argument, Johnson alleges that three statutory aggravating factors the

jury found in relation to the murder of R.R., sections 9711(d)(5), (11), and (16), are

unconstitutionally vague and overbroad.      Johnson’s Brief at 78. To survive such a

challenge, an aggravating circumstance must be found to “genuinely narrow the class of

persons eligible for the death penalty and must reasonably justify the imposition of a

more severe sentence on the defendant compared to others found guilty of murder.”

Commonwealth v. Baumhammers, 92 A.3d 708, 738 (Pa. 2014). Johnson does not

explain how the provisions he has challenged fail to meet this standard.          Instead,

without discussing the three factors individually, he offers a blanket statement that these

aggravating circumstances fail to adequately define what constitutes a circumstance

that would fall under each of them, and therefore “fail to provide any meaningful basis

for distinguishing those few cases in which the death penalty is imposed from the many

cases in which it is not.” Johnson’s Brief at 80. We disagree.

      Section 9711(d)(16) establishes as an aggravating factor the fact that the victim

was a child under twelve years of age. 42 Pa.C.S. § 9711(d)(16). This Court rejected a

vagueness challenge to section 9711(16) in Commonwealth v. Bardo, 709 A.2d 871

(Pa. 1998), concluding that the provision “is abundantly clear and merely reflects the

legislative judgment that killing a person under the age of twelve is a particularly

heinous crime” and that “[i]f anything,” it is a “model of clarity.” Id. at 878-79. Johnson

offers no persuasive basis on which to depart from our prior decision in Bardo.

      We have similarly rejected two prior vagueness challenges to section

9711(d)(11), which provides as an aggravating factor the fact that where “[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. §




                                    [J-131-2016] - 33
9711(d)(11). In Commonwealth v. Fletcher, 861 A.2d 898 (Pa. 2004), we concluded

that
              this aggravating circumstance clearly narrows the class of
              persons eligible for the death penalty by excluding those
              individuals who have not been convicted of another murder.
              Moreover, the “multiple murder” aggravator reasonably
              justifies the imposition of a more severe sentence because,
              based upon their risk of danger to general society, those
              individuals convicted of multiple murders warrant a harsher
              punishment. As such, the “multiple murder” aggravator
              comports with the necessary requirements of the Eighth
              Amendment and the Due Process Clause.
Commonwealth v. Fletcher, 861 A.2d 898, 913 (Pa. 2004). Relying on Fletcher, we

reached the same result in Baumhammers. Baumhammers, 92 A.3d at 737-38. As

with section 9711(d)(16), Johnson has failed to provide any principled reason for this

Court to deviate from its prior decisions in Fletcher and Baumhammers.

       Section 9711(d)(5) provides an aggravating circumstance where “[t]he victim was

a prosecution witness to a murder or other felony committed by the defendant and was

killed for the purpose of preventing his testimony against the defendant in any grand

jury or criminal proceeding involving such offenses.” 42 Pa.C.S. § 9711(d)(5). As with

sections 9711(d)(11) and 9711(d)(16), this provision includes a precisely tailored

description of the criteria that must be met for the invocation of this aggravator.

Moreover, the legislative intent for including this aggravator should be clear, namely that

committing a subsequent crime (a murder) to avoid punishment for a prior crime merits

a harsher sentence. Johnson provides no refutation to these conclusions, and we will

not construct an argument on his behalf. Commonwealth v. Johnson, 985 A.2d 915,

924 (Pa. 2009) (“It is not the obligation of this Court, even in a capital case, to formulate

[the] [a]ppellant's arguments for him.”).28

28
   We note that Chief Justice Saylor, in a dissenting posture, has expressed his
“continuing reservations” with this Court’s interpretation of section 9711(d)(5) as
(continued…)

                                     [J-131-2016] - 34
                          IX. Review of the Death Sentence
                           Pursuant to 42 Pa.C.S. § 9711(h)
      This Court is required to review every death sentence to ensure that it was not

imposed as a result of passion, prejudice or any other arbitrary factor and that there is

evidence to support the jury’s finding of aggravating circumstances.        42 Pa.C.S. §

9711(h)(1), (3); Commonwealth v. Harris, 817 A.2d 1033, 1058 (Pa. 2002). The death

penalty was imposed for the murder of R.R. The jury found as aggravating

circumstances the fact that she was under the age of twelve, that she was a witness to

her mother’s murder and was killed to prevent her from identifying Johnson as her

mother’s killer, and that Johnson was convicted of committing another murder. Murder

of the First Degree of [R.R.] Sentencing Verdict Slip, 8/16/2015, at 3. There is ample

evidence to support the jury’s finding of these aggravating factors, much of which has

been detailed hereinabove.

      The sound factual predicate for the aggravating factors bolsters a conclusion that

the sentence was not the result of passion, prejudice or any other arbitrary factor.

Indeed, the jury also found three mitigating circumstances,29 but in its ultimate calculus

decided that they were outweighed by the aggravating factors. The record reveals



(…continued)
applying to potential prosecution witnesses, indicating that, based on his reading of the
provision, “a relevant prosecution [must] have preceded the killing.” Commonwealth v.
Daniels, 104 A.3d 267, 321 & 322 n.3 (Pa. 2014) (Saylor, J. dissenting). Johnson has
not raised that issue in this appeal. Notably, moreover, for purposes of our statutory
review, the jury found other aggravating circumstances; as such, consideration of this
particular question is presently unnecessary. 42 Pa.C.S. §9711(h)(3)(ii) (“The Supreme
Court shall affirm the sentence of death unless it determines that . . . the evidence fails
to support the finding of at least one aggravating circumstance specified in subsection
(d).”).
29
    These were Johnson’s age, his lack of prior convictions, and “catch all [sic] []
mitigation concerning [his] character. Murder of the First Degree of [R.R.] Sentencing
Verdict Slip, 8/16/2015, at 3.



                                    [J-131-2016] - 35
nothing but a measured and sober deliberation.         Accordingly, we must affirm the

sentence of death. 42 Pa.C.S. § 9711(h)(3).

                                     Conclusion

       Having found no reversible error, we affirm Johnson’s convictions and judgment

of sentence.   The Prothonotary is hereby directed to transmit to the Governor the

complete records of the trial, sentencing hearing, imposition of sentence and review by

the Supreme Court of Pennsylvania, pursuant to 42 Pa.C.S. § 9711(i).

       Chief Justice Saylor and Justices Baer, Todd, Dougherty and Wecht join the

opinion, and Justice Mundy joins the majority except for Part III where she concurs in

the result.




                                   [J-131-2016] - 36
