finding that, where the defendant's first-degree murder conviction was a general verdict that could have been predicated on accomplice liability, "Lassiter would have required the trial court to instruct the jury at the sentencing phase that the jury would first have to find that [the defendant] himself brought about the killing before it could find" the Section 9711(d)(6) aggravating circumstance
How later courts described this case
- finding that, where the defendant's first-degree murder conviction was a general verdict that could have been predicated on accomplice liability, "Lassiter would have required the trial court to instruct the jury at the sentencing phase that the jury would first have to find that [the defendant] himself brought about the killing before it could find" the Section 9711(d)(6) aggravating circumstance
- stating that to warrant finding that homicide does not rise to level of first-degree murder, evidence must demonstrate that defendant was intoxicated to such extent that he was unable to form requisite -7- J-S07042-23 intent; in other words, it must be established that defendant was “overwhelmed to the point of losing his sensibilities”
- holding "[i]t is well established that no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence." (internal citation omitted)
- stating that an error is harmless if the evidence of guilt, without regard to the tainted evidence, is so overwhelming that the conviction would have followed beyond a reasonable doubt without regard to it
Written by the judges who cited it.
The opinion
Justice BALDWIN,
concurs and dissents.
I join Parts A(l), (2), (3) and (5) and B(l), (2), (4), (5) and (6) of the majority opinion. I concur in the holding affirming the denial of relief from the conviction; however, I would reverse with regard to the denial of a new penalty hearing.
With regard to Part A(4), I concur with Justice Saylor’s result, but write separately to clarify my reasons for doing so. During Appellant’s trial, the Commonwealth asserted two alternative theories of guilt for the first-degree murder charge: (1) Appellant pulled the trigger and was directly *114 responsible for murdering the victim; or (2) Ms. Noland pulled the trigger, but Appellant had the intent to kill and thus Appellant was guilty as an accomplice. It is well-settled law that in order for an accomplice to be guilty of first-degree murder, it must be determined beyond a reasonable doubt that the accomplice possessed the necessary specific intent to take a life. Commonwealth v. Hannibal, 562 Pa. 132, 140 , 753 A.2d 1265, 1270 (2000); Commonwealth v. Bachert, 499 Pa. 398, 406 , 453 A.2d 931, 935 (1982). According to the majority, “[ajbsent an admission from Spotz that he had shot and killed [the victim], trial counsel could not have presented a diminished capacity defense.” Majority Opinion, op. at 47, 896 A.2d at 1218. However, pursuant to the intent requirements necessary to establish accomplice liability for first-degree murder, this is not so. Where, as here, the Commonwealth asserts alternate theories of liability, the defense may put on alternate theories of defense, even when those alternative theories are inconsistent. Commonwealth v. Legg, 551 Pa. 437 , 711 A.2d 430 (1998); Commonwealth v. Jorgenson, 512 Pa. 601 , 606 n. 3, 517 A.2d 1287 , 1290 n. 3 (1986). Therefore, in response to the alternate theories of liability asserted by the Commonwealth, the defense could have responded: (1) Appellant did not pull the trigger and did not realize, or intend, that Ms. Noland would pull the trigger; and (2) if, for some reason, the jury concludes that Appellant did realize that Ms. Noland was going to kill the victim, then they should be aware that Appellant did not have the capacity to form the intent necessary to commit first-degree murder. As Justice Saylor aptly discusses in his Concurring and Dissenting Opinion, because this court and others have frowned on'the use of a diminished capacity defense in the alternative, trial counsel’s failure to raise such an alternative defense does not necessarily rise to the level of ineffectiveness. See Saylor, J., Concurring and Dissenting Opinion, op. at 106-08, 896 A.2d at 1254-55.
As to Part B(3), I again concur with Justice Saylor’s result, but write separately to clarify my reasons for doing so. The majority opines that the trial attorney could not be found to *115 have been ineffective because our decision in Commonwealth v. Lassiter, 554 Pa. 586 , 722 A.2d 657 (1998)(plurality opinion), which clarified that accomplice liability for a killing does not fit the plain meaning of 42 Pa.C.S. § 9711(d)(6), was not issued until two years after the trial in the case sub judice. Majority Opinion, op. at 108-09, 896 A.2d at 1255. However, because the plain meaning of § 9711(d)(6) explicitly requires that the defendant must have committed the murder at issue, and because defense attorneys should be held to a standard which at a minimum includes an ability to carefully read the statute, I find that the claim has arguable merit, fulfilling the first part of the test for ineffective assistance of counsel. Commonwealth v. Szuchon, 534 Pa. 483, 486 , 633 A.2d 1098, 1099 (1993).
The second prong of the test for ineffective assistance of counsel requires us to determine whether “counsel’s action or inaction was grounded in a reasonable basis.” Legg, 551 Pa. at 443 , 711 A.2d at 432 . Trial counsel testified that he did not object to the trial judge’s misstatement of the statute in the jury instruction (i.e., that the aggravator applied if “the killing was committed in the perpetration of a felony,” N.T., March 6, 1996, at 292) because he believed that § 9711(d)(6) applied to accomplice liability. N.T., September 28, 2000, at 153. As stated previously, the plain meaning of the statute belies that belief and a reasonable counsel should have at least made the argument that the plain meaning should prevail. There is no reasonable basis for trial counsel’s inaction.
To establish the third prong of the test for ineffective assistance of counsel, we must determine that the counsel’s omission gave rise to a reasonable probability of a changed outcome. Commonwealth v. Marshall, 571 Pa. 289, 299 , 812 A.2d 539, 545 (2002). Because here the jury was required to balance the aggravating and mitigating circumstances in accordance with 42 Pa.C.S. § 9711(c)(1)(iv), it is possible that the removal of one aggravating factor would have changed the resulting sentence from “death” to “life.”
*116 Therefore, I would grant a new penalty hearing to the Appellant.