# Commonwealth v. Peterkin

> Supreme Court of Pennsylvania · July 25, 1986 · 511 Pa. 299

URL: https://www.frixlaw.com/law-library/cases/9714628

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Otis PETERKIN, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 25, 1986
- **Citations:** 511 Pa. 299; 513 A.2d 373; 1986 Pa. LEXIS 829
- **Precedential status:** Published
- **Opinion:** Concurrence by Nix
- **Judges:** Nix, Larsen, Flaherty, McDermott, Papadakos, Zappala
- **Cited by:** 157 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9714628

## How later opinions describe it (automated extraction)

- holding trial counsel’s concern “that the potential harm from cross-examination of character witnesses outweighed the doubtful value of their testimony, was a reasonable basis for not pursuing potential character witnesses or presenting character evidence”
- finding waiver, in a capital case, of the defendant’s claim that the trial court improperly excluded two prospective jurors based upon their views of capital punishment as trial counsel failed to object to the exclusion of these jurors
- holding death penalty statute does not favor imposition of death or preclude jury from granting mercy or leniency as it permits consideration of mitigation evidence, including any evidence concerning the character and record of the defendant
- noting that "channeling of considerations of mercy and leniency into the scheme of aggravating and mitigating circumstances," is consistent with alleviating the problems of potential jury nullification and arbitrariness identified in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2…

## Opinion text

*330 NIX, Chief Justice,
concurring.
While I concur with the result reached by the majority, I feel compelled to once again express my deep regret that the majority of this Court is content to blindly accept the death-qualification process. The prosecution-proneness of death qualified jurors has been firmly established by a number of reliable studies. See Commonwealth v. Maxwell, 505 Pa. 152, 170 , 477 A.2d 1309, 1331 , cert. denied, 469 U.S. 971 , 105 S.Ct. 370 , 83 L.Ed.2d 306 (1984) (Nix, C.J., dissenting). As I stated in Maxwell, supra:
In the intervening fifteen years, the Witherspoon Court’s understandable hesitancy has generated numerous studies of increasing reliability and precision in support of the dual hypothesis that death qualified juries are both prosecution-prone and unrepresentative. These studies now demonstrate convincingly that persons favoring the death penalty are significantly more likely to vote for conviction in capital cases and that persons excluded from jury service on the basis of their unwillingness to impose the death penalty represent a distinct and sizeable group in the community. Thus it would appear that Witherspoon no longer presents a valid obstacle to the challenge raised herein.
Id., 505 Pa. at 171-72 , 477 A.2d at 1319 .
See also Commonwealth v. Simon, 509 Pa. 548 , 506 A.2d 392 (1986) (Nix, C.J., dissenting); Commonwealth v. Morales, 508 Pa. 51, 73 , 494 A.2d 367, 379 (1985) (Nix, C.J., dissenting); Commonwealth v. Colson, 507 Pa. 440, 470 , 490 A.2d 811, 826 (1985) (Nix, C.J., dissenting); Commonwealth v. Szuchon, 506 Pa. 228, 260 , 484 A.2d 1365, 1382 (1984) (Nix, C.J., dissenting).
Since this Court is apparently content to accept Wither-spoon at face value and since the majority of the United States Supreme Court has concluded that the Witherspoon approach is compatible with federal constitutional standards, see Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), I have no alternative but to defer to this approach.
*331 I am also concerned with the majority’s suggestion that an issue in a death penalty case can be waived. Recognizing the irrevocable nature of the death penalty, this Court has, in the past, firmly adhered to the rule that there can be no waiver in these cases. See Commonwealth v. Pirela, 510 Pa. 43 , 507 A.2d 23 (1986); Commonwealth v. Pursell, 508 Pa. 212 , 495 A.2d 183 (1985); Commonwealth v. Stoyko, 504 Pa. 455 , 475 A.2d 714 , cert. denied, 469 U.S. 963 , 105 S.Ct. 361 , 88 L.Ed.2d 297 (1984); Commonwealth v. Frey, 504 Pa. 428 , 475 A.2d 700 , cert. denied, 469 U.S. 963 , 105 S.Ct. 360 , 83 L.Ed.2d 296 (1984); Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982); rehearing denied, 463 U.S. 1236 , 104 S.Ct. 31 , 77 L.Ed.2d 1452 (1983); Commonwealth v. McKenna, 476 Pa. 428 , 383 A.2d 174 (1978). In this instance, however, the record reflects that the challenge to the exclusion was without merit.
ZAPPALA, J., joins in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9714628. Public record. Not legal advice.