J-S17006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

JOSEPH J. KINDLER,

                         Appellee                  No. 3339 EDA 2016


             Appeal from the Order Entered November 16, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0827471-1982


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 21, 2017

      The Commonwealth appeals as of right, under Pa.R.A.P. 311(d), from

the interlocutory order of court entered on November 16, 2015, granting

Appellee’s (Joseph J. Kindler) motion in limine to preclude victim impact

testimony from his first degree murder capital resentencing.      We Affirm.

      The trial court summarized the relevant factual background and

procedural history of the case as follows.

      On November 15, 1983, [Appellee] was found guilty [following]
      a jury trial, presided over by the Honorable John[] A. Geisz, of
      [f]irst [d]egree [m]urder, 18 Pa.C.S. § 2502(a), as a felony of
      the first degree; [k]idnapping, 18 Pa.C.S. § 2901, as a felony of
      the first degree; and [c]onspiracy, 18 Pa.C.S. § 903, as a felony
      of the first degree.

      On November 16, 1983, after a penalty phase, the jury
      recommended a sentence of death.
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     Following his trial, but before the death sentence had been
     formally imposed, [Appellee] filed several post-verdict motions.
     Before those motions could be heard, [Appellee] escaped from
     custody, was captured, escaped again, and was finally arrested
     and returned to Philadelphia in 1991. [Appellee’s] efforts to
     reinstate his post-verdict motions upon his return were
     unsuccessful, and his judgment of conviction was thereafter
     affirmed, based on Pennsylvania’s fugitive forfeiture doctrine.
     Kindler v. Horn, 642 F.3d 398, 399 (3d Cir. 2011)(citing
     Com[monwealth] v. Kindler, 639 A.2d 1, 3 (Pa. 1994);
     Com[monwealth] v. Kindler, 722 A.2d 143, 146-148 (Pa.
     1998)).

     [Appellee] then turned to the federal courts for habeas relief. On
     September 24, 2003, the [d]istrict [c]ourt granted [Appellee]
     partial relief and ordered that a new penalty phase hearing be
     conducted. Kindler v. Horn, 291 F. Supp. 2d 323, 343 (E.D.
     Pa. 2003).      The Third Circuit [Court of Appeals] affirmed.
     Kindler v. Horn, 542 F.3d 70, 79 (3d Cir. 2008).

     On May 17, 2009, the United States Supreme Court granted the
     Commonwealth’s petition for certiorari.

     On December 8, 2009, the United States Supreme Court vacated
     the [federal appellate court’s] order for a new penalty phase
     hearing and remanded the case for further consideration. Beard
     v. Kindler, 558 U.S. 53 [](2009).

     On April 29, 2011, the [] Court of Appeals again affirmed the
     grant of a new penalty phase hearing. Kindler v. Horn, 642
     F.3d 398 (3d Cir. 2011).

     On December 6, 2012, the case was returned to the Philadelphia
     Court of Common Pleas.

Trial Court Opinion, 1/29/2016, at 1-2 (emphasis added).

     Before the start of the new penalty phase hearing, Appellee filed a

motion in limine seeking to prevent the Commonwealth from admitting

victim impact evidence. On November 16, 2015, the trial court granted the

motion.   On December 16, 2015, the Commonwealth filed this timely

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interlocutory    appeal,1     as   of   right    under   Pa.R.A.P.     311(d).2     The

Commonwealth presents one issue for our review:

       Did the trial court err in precluding the Commonwealth from
       introducing victim impact evidence in a capital resentencing
       proceeding, where it relied upon a new, 1996 decision entered
       after the conclusion of [Appellee’s] 1994 direct appeal?

Commonwealth’s Brief at 2.

       Specifically, the Commonwealth contends that the trial court erred in

relying on Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996), to bar

victim impact evidence from Appellee’s resentencing.                 “Generally, a trial

court’s decision to grant or deny a motion in limine is subject to an

evidentiary abuse of discretion standard of review.”           Caitlin v. Hamburg,

56 A.3d 914, 922 (Pa. Super. 2012) (citation omitted). To understand the

Commonwealth’s argument, a brief review of the admissibility of victim

impact evidence, within the context of this case, is necessary.




____________________________________________


1
  On December 16, 2015, the Commonwealth filed a concise statement of
errors complained of on appeal, although the docket does not indicate that
the trial court ordered such a filing. The trial court filed its opinion on
January 29, 2016.
2
  The Commonwealth originally brought this interlocutory appeal before our
Supreme Court. Our Supreme Court, however, unanimously held it did not
have jurisdiction over the appeal pursuant to 42 Pa.C.S § 722(4) or 42
Pa.C.S. § 9711(h) because Appellee no longer has an effective death
sentence. Commonwealth v. Kindler, 147 A.3d 890 (Pa. 2016). Thus,
jurisdiction is proper in this Court.



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      No victim impact evidence was admitted at Appellee’s original penalty

phase hearing in 1983.     In relevant part, the capital sentencing statute in

effect at the time provided:

      (2) In the sentencing hearing, evidence may be presented as to
      any matter that the court deems relevant and admissible on the
      question of the sentence to be imposed and shall include matters
      relating to any of the aggravating or mitigating circumstances
      specified in subsections (d) and (e). Evidence of aggravating
      circumstances shall be limited to those circumstances specified
      in subsection (d).

42 Pa.C.S. § 9711(a)(2).

      In 1989, our Supreme Court interpreted 42 Pa.C.S. § 9711, in

Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989). The Abu-Jamal

Court held that the statute did not limit the evidence introduced at a capital

sentencing hearing to evidence of aggravating and mitigating circumstances.

It found the language, “any matter the court deems relevant,” to be

inclusive, thereby giving tacit approval to the admission of victim impact

evidence. Id. at 858.

      The holding in Abu-Jamal is somewhat contrary to prior precedent

issued by the United States Supreme Court.         In 1987, the High Court

decided Booth v. Maryland, 482 U.S. 496 (1987), which held that the

admission of victim impact evidence at a capital sentencing proceeding

violated the Eighth Amendment.      The Court reasoned that such evidence

created an impermissible risk that the jury will make an arbitrary sentencing

recommendation.     Id. at 508-509.    In 1991, however, the United States


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Supreme Court overruled Booth in Payne v. Tennessee, 501 U.S. 808

(1991).      The Court eliminated the per se bar of victim impact statements

and left the question of their admissibility to the states. Id. at 825. Payne

held that,

      Victim impact evidence is simply another form or method of
      informing the sentencing authority about the specific harm
      caused by the crime in question, evidence of a general type long
      considered by sentencing authorities. We think the Booth Court
      was wrong in stating that this kind of evidence leads to the
      arbitrary imposition of the death penalty. In the majority of
      cases, and in this case, victim impact evidence serves entirely
      legitimate purposes.

Id.

      Following Payne, in 1995, the Pennsylvania General Assembly

amended the existing capital sentencing statute to allow expressly the

admission of victim impact evidence.     See 42 Pa.C.S. § 9711(a)(2).     The

amended statute provides, “[i]n the sentencing hearing, evidence concerning

the victim and the impact that the death of the victim has had on the family

of the victim is admissible.” Id.

      In 1996, our Supreme Court reconsidered the pre-amendment

version of the capital sentencing statute. In Fisher, the Court held that the

version of § 9711(a)(2) in effect at the time of Appellee’s sentencing did not

allow for the admission of victim impact evidence. Thus, the Pennsylvania

Supreme Court expressly held that in those cases (like Appellee’s case) in




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which the offense occurred before the 1995 amendment to § 9711(a)(2),

victim    impact    statements       could     not   be   admitted.3        However,   the

Commonwealth argues that Appellee is not entitled to the Fisher Court’s

interpretation of pre-amendment § 9711(a)(2) as his judgment of sentence

became final before Fisher was decided.               Specifically, the Commonwealth

makes the claim that Appellee cannot benefit from the ruling in Fisher

because     his    judgment     of   sentence        became   final    in   1994.      See

Commonwealth’s Brief at 18-20 (“It is of course well settled that a new

decision applies only to cases that were still on direct appeal when the

decision was announced. Where, as here, the offender’s direct appeal was

completed years before, he is not entitled to the benefit of the new

decision.”).

       The Commonwealth is correct that, in 1994, when the Supreme Court

of the United States denied certiorari to review Appellee’s claims, his initial

judgment of sentence became final. It is well settled that, “[w]here a case

breaks with past precedent, it is not applied to a case on collateral review

‘unless the decision announcing the new rule of law was handed down during
____________________________________________


3
  Since Fisher, our Supreme Court has consistently held that the 1995
Amendment to § 9711(a)(2)—allowing admission of victim impact
evidence—applies only to offenses that occurred on or after its effective
date, December 11, 1995. Commonwealth v. Laird, 119 A.3d 972, 1007
(Pa. 2015); see also Commonwealth v. Duffey, 889 A.2d 56 (Pa. 2005)
(“the 1995 amendment to the death penalty statute permitting victim impact
evidence applies only to sentences imposed for offenses which took place on
or after the effective date of the amendment. . .”).



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the pendency of the defendant's direct appeal and the issue was properly

preserved on direct appeal.’” Commonwealth v. Balenger, 704 A.2d 1385,

1390 (Pa. Super. 1997), quoting Commonwealth v. Todaro, 701 A.2d

1343, 1348 (Pa. 1997); see also In re L.J., 79 A.3d 1073, 1087 (Pa. 2013)

(citations omitted) (“[T]he general rule is that [a] decision announcing a

new rule of law is applied retroactively so that a party whose case is pending

on direct appeal is entitled to the benefit of the changes in the law.”). In

2011, however, the Court of Appeals for the Third Circuit vacated Appellee’s

death sentence and ordered a new penalty phase.         “Once a sentence is

vacated. . . it is no longer in effect[.]” Commonwealth v. Romolini, 557

A.2d 1073, 1080 (Pa. Super. 1989). Thus, insofar as the penalty phase of

Appellee’s trial court proceedings is concerned, his judgment of sentence is

no longer final. In fact, the slate has been wiped clean and Appellee actually

seeks prospective application of the decision in Fisher as no new sentence

has yet been imposed. Thus, he is entitled to the benefit of Fisher at his

resentencing.

      The Commonwealth also cites to Commonwealth v. Lesko, 15 A.3d

345 (Pa. 2011), to support its contention that Appellee is not entitled to the

benefit of the Fisher decision because his conviction was not vacated by the

federal court’s resentencing order.    Commonwealth’s Brief at 19.       Such

reliance is misplaced.    Specifically, the Commonwealth summarizes the

decision in Lesko as, “[a] federal court habeas corpus order compelling


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resentencing does not otherwise reopen final state criminal judgment.”

Commonwealth’s Brief at 19.        In Lesko, a federal court granted Lesko

habeas relief in the form of resentencing.    Thereafter he was, once again,

sentenced to death. Our Supreme Court affirmed his new death sentence,

and Lesko filed a PCRA petition challenging both his conviction and sentence.

Our Supreme Court held that Lesko’s PCRA petition must be, “confined to

that part of the final Pennsylvania judgment that was disturbed by the

federal habeas proceedings” and that, “[a]ll other aspects of the original

judgment remain as before—final.”       Id. at 366.   Meaning, Lesko’s PCRA

petition could only challenge his new sentence, not his conviction, which was

not disturbed by the federal relief.

      Applying that principle to the instant case means only that Appellee’s

conviction has not been disturbed by the federal court’s resentencing order.

It does not mean that the sentence imposed as a punishment for Appellee’s

conviction remains final, as the Commonwealth suggests. The trial court did

not abuse its discretion in granting Appellee’s motion in limine.

      Order Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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