Commonwealth v. Baumhammers

Justice SAYLOR,

Concurring.

I join Parts I through V and XIII through XVIII of the majority opinion, concur in the result with regard to Parts VI through XII, and write to the following.

As to Issue VI, concerning the interception of Appellant’s telephone conversations in the asserted absence of written notice, Appellant presents a plain-meaning interpretation of a statute which plainly requires written notice. 1 Further, Ap *67 pellant relies on decisions of this Court establishing that exceptions to the prohibition against wiretapping must be strictly construed, see Boettger v. Miklich, 534 Pa. 581, 585-86 , 633 A.2d 1146, 1148 (1993), as well as this Court’s admonition that: “No violations of any provisions of the Act will be countenanced[.]” Commonwealth v. Hashem, 526 Pa. 199, 206 , 584 A.2d 1378, 1382 (1991) (emphasis in original). In light the clear terms of the statute, Boettger , and Hashem , I cannot support the majority’s characterization of Appellant’s argument as being wholly without merit, based on the mere assessment that provision of the written notice required by the Legislature would not have advanced the privacy interests involved. See Majority Opinion, at 33, 960 A.2d at 79. Rather, it seems to me that the majority’s approach represents a departure from the requirement of strict construction and/or a form of prejudice assessment, as was previously prohibited. See Hashem, 526 Pa. at 205 , 584 A.2d at 1381 (“We must likewise specifically reject the Superior Court’s holding that before relief can be granted in this type of claim the Defendant must bear the burden of showing how the failure to comply with the Act prejudiced him.”). 2

Nevertheless, I believe the Commonwealth appropriately relies on the principles governing review of suppression-court *68 rulings, which center the appellate court review on the record of the suppression hearing. See, e.g., Commonwealth v. Eichinger, 591 Pa. 1, 22 , 915 A.2d 1122, 1134 (2007). Here, even if inmates were not in fact informed via the institution handbook of the practice of recording calls, the evidence presented to the suppression court indicated otherwise. See N.T. at 571-573 (reflecting the testimony of a jail official to the effect that inmates were “[f]irst of all, and most foremost” notified through a posted inmate handbook of the practice of recording telephone calls). The two items of contrary evidence upon which Appellant now relies (the handbook itself and an affidavit of a jail employee) were not brought onto the record of the suppression hearing, but apparently were obtained by Appellant’s counsel after sentencing. As the Commonwealth explains, however, such items are not appropriately considered in this Court’s direct review of the suppression court’s ruling, as they were not before the court at that time. Accordingly, although Appellant may have claims of deficient stewardship to assert during post-conviction proceedings, I do not believe that his argument in this direct appeal is cognizable on the terms on which it is presented. 3

With regard to Issue VII, I agree with the majority that the contested testimony did not violate attorney-client or work-product privileges. See Majority Opinion, at 36-37, 960 A.2d at 81. Nevertheless, I also agree with Appellant that there was a significant possibility that the evidence of Dr. Merikangas’ failure to consult with Dr. Wettstein could have had a prejudicial impact outside the limited purpose for which it was *69 admitted, namely, to test the scope of Dr. Merikangas’ review. See N.T. at 1496. In this regard, however, I find it significant that Appellant did not request a limiting instruction to mitigate the possibility of prejudice. Cf. Commonwealth v. Moore, 594 Pa. 619, 639-40 , 937 A.2d 1062, 1074 (2007) (explaining that potential prejudice may be mitigated by a limiting instruction and deferring any analysis of a trial counsel’s performance in failing to request such an instruction to post-conviction review).

As to issue IX, the asserted denial of the right to present mitigating evidence in the form of testimony from Dr. Mar-tone, the majority indicates that Appellant failed to set forth the substance of the testimony he hoped to elicit from Dr. Martone or how such testimony would have been different from that given by Dr. Martone during the guilt phase of trial. See Majority Opinion, at 42-43 n. 16, 960 A.2d at 85 n. 16. Appellant, however, does explain:

the defense proffered that Dr. Martone would have testified that [Appellant] was under the influence of extreme mental and emotional disturbance at the time she saw him in May 2000 and at the time of the commission of the offense. Further, she would have testified that [Appellant’s] capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.

Brief for Appellant at 56-57. In light of the general proffer going specifically to two statutory mitigating factors, I view this issue as a closer one than the majority, particularly in light of the constitutional norms requiring liberal admission of mitigating evidence. See, e.g., Tennard v. Dretke, 542 U.S. 274, 285 , 124 S.Ct. 2562, 2570 , 159 L.Ed.2d 384 (2004). I agree with the majority, however, that if Dr. Martone’s testimony was to be cumulative of that of other defense experts, in the sense that it would not materially add to the weight of the evidence favoring the finding of one or more mitigating circumstances, the trial court’s decision to exclude the testimony should be sustained. At least in the absence of a developed record concerning the specifics of what Dr. Martone’s testimony would have been, and a fact finder’s assessment regarding *70 the degree of potential impact, there appears to me to be insufficient basis to question the trial court’s judgment as to cumulativeness. Notably, in this regard, Appellant did not raise this claim in his post-sentence motions or request a hearing on the matter to develop a factual record.

As to the claim challenging the admission of victim impact evidence (Issue XI), the prosecutor’s indication that one facet of the evidence “cannot be written with such detail and emotion as it unfolded in this case” encapsulates the difficulty with this type of evidence and highlights the need for careful control by the trial courts. 4 N.T. at 3080. Given the number of witnesses presented and the passionate character of many of the statements, I find this to be a close case in terms of whether the trial court exceeded its discretion in this regard. I also recognize, however, that the Constitution does not foreclose evidence of the harm caused by the defendant in capital sentencing proceedings, see Payne v. Tennessee, 501 U.S. 808, 827 , 111 S.Ct. 2597, 2609 , 115 L.Ed.2d 720 (1991), and Appellant caused an immeasurable amount of harm. Thus, although I agree with the majority that no relief is due here, given that we are seeing fairly wide differences across cases in terms of the degree of control exercised by the trial courts over the development of victim impact evidence, I believe that the Court would be well advised to consider exercising its rulemaking function to impose some structural limitations.

. The trial court construed the statute to require one-time written notice to existing inmates only upon implementation of the overall practice of recording calls. See Commonwealth v. Baumhammers, Nos. 200014712 et al., slip op. at 14 (C.P. Allegheny Dec. 29, 2005) ("The Court does not read this paragraph as requiring that written notice be provided to every inmate upon their admission to the facility.”). Neither the Commonwealth nor the majority, however, advocates such a construction. Furthermore, although the statute does appear to be ambiguous in the relevant regard, applying the Court’s practice of strictly construing in favor of the privacy interests which are intended *67 to be safeguarded, as referenced below, I agree with the conclusion that the relevant statutory notice is to be provided to each inmate.

. While the majority correctly observes that the provision of the Act under review in Hashem appeared in a separate section of the statute, the Hashem Court repeatedly indicated that its approach applied more broadly to the Wiretap Act as a whole, and the majority does not explain how the application of a strict-enforcement approach to one portion of the statute is to be reconciled with its more pragmatic approach to another.

The Commonwealth predicates its argument that a plain-meaning application of the legislative mandate for written notice would be absurd upon an example involving the uselessness of providing written notice to blind or illiterate inmates. See Brief for Appellee at 42. This does not seem to me to furnish a reason for the judiciary to retool die statute, however, as such inmates may (and should) obtain assistance from prison officials or others in reading written materials made available to them. Moreover, it seems axiomatic that exceptional circumstances should not be taken to eviscerate clearly stated rules of general application in non-exceptional circumstances.

. In his reply brief, Appellant attempts to recast his argument, in the alternative, as a due process challenge. See Reply Brief of Appellant at 12 ("Since the Commonwealth as a prosecuting entity knew that [the jail official's] testimony was false, and there is a reasonable likelihood that had the prosecution revealed the truth about the handbook, the tapes would have been suppressed, Due Process requires a new trial.”). However, arguments first raised before an appellate court in a reply brief are not properly considered. See Commonwealth v. Wharton, 571 Pa. 85, 105 , 811 A.2d 978, 990 (2002). The present circumstances demonstrate good reason for this practice, since Appellant's argument addresses the extent of the prosecutor’s knowledge, an inherently factual matter which has not been developed upon an evidentiary record at this juncture.

. It is well established that the application of the death penalty is to be based on reasoned moral judgment, see Penry v. Lynaugh, 492 U.S. 302, 319 , 109 S.Ct. 2934, 2947 , 106 L.Ed.2d 256 (1989), as opposed to passion or emotion.