# Commonwealth v. Speight

> Supreme Court of Pennsylvania · July 22, 2004 · 578 Pa. 520

URL: https://www.frixlaw.com/law-library/cases/9754088

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Melvin SPEIGHT, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 22, 2004
- **Citations:** 578 Pa. 520; 854 A.2d 450; 2004 Pa. LEXIS 1627
- **Precedential status:** Published
- **Opinion:** Concurrence by Saylor
- **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer
- **Cited by:** 74 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/9754088

## How later opinions describe it (automated extraction)

- finding counsel not ineffective where the charge given, “[r]ead as a whole, . . . sufficiently instructed the jury regarding the requirement that an individual must have specific intent to kill in order to be found guilty of first degree murder as an accomplice”
- holding instruction on first-degree murder was misleading as to whether jury needed to find that defendant, as accomplice, had specific intent
- stating that a jury is presumed to follow a trial court’s instructions

## Opinion text

Justice SAYLOR,
concurring.
While I concur in the result reached by the majority, my reasoning with respect to certain of Appellant’s claims is different.
First, I disagree with the majority’s assessment of Appellant’s due process claim, in particular, that the actions and statements of the PCRA court surrounding the initial grant of relief to Appellant and the subsequent reconsideration and reversal of such order do not raise a presumption of vindictiveness, and that any such claim is meritless. Here, after denying relief on any of the claims respecting the guilt phase of the trial, the PCRA court awarded Appellant a new penalty hearing, citing trial counsel’s lack of preparation. Specifically, the PCRA court referenced trial counsel’s failure to secure a psychiatric or psychological evaluation of Appellant, review Appellant’s juvenile file or prison records for mitigation information, and life-qualify the jury; further, the court noted that, while questioning the jurors, trial counsel confused Appellant’s right not to testify with his right against self-incrimination. The PCRA court also stated that if no appeal was filed, the *541 case could be re-listed before the court without a jury and a life term of imprisonment would be imposed.
Although, as indicated by the majority, the PCRA court’s comments may be viewed as merely indicating the potential course of the case, I would not evaluate the claim without reference to the circumstances that followed. For example, on the same day and immediately after Appellant filed a notice of appeal to challenge the portion of the PCRA court’s order denying him relief on the claims involving the guilt phase of his trial, the Commonwealth filed a motion for reconsideration of the order granting Appellant a new penalty hearing, averring as the sole reason in support that nothing in Appellant’s juvenile file would have been helpful to him at the penalty hearing. At the ensuing argument on the Commonwealth’s motion, the PCRA court reversed its earlier order awarding a new penalty hearing, stating that it was doing so based upon the assertions in the Commonwealth’s reconsideration petition and upon reviewing the entire record. At that time, the PCRA court did not address the reasons it cited in previously granting relief, other than stating that such grounds were “very loosely” based upon the law and that the court had been primarily acting on the basis of sympathy arising from the disproportionate conviction and sentence Appellant received in relation to his co-defendants. 1 More important, in responding to PCRA counsel’s concern with the appearance of vindictiveness, the court explained:
[Y]ou know, there is some question in my mind, I want to make it clear that I’m satisfied that the decision I made now is the proper decision on the record. It is not one that is made with any type of vindictiveness because the defendant chose to appeal even after he had been granted relief with respect to the death penalty, but I say clearly and truly and honestly that was in my mind and it was a factor and to the extent that anybody wants to argue that, they can say that, but I am satisfied that what I do now is proper and right in *542 accordance with law and not inappropriate on the basis of a fair reconsideration.
The PCRA court’s comments arguably indicate that Appellant’s decision to file an appeal was “a factor” in granting reconsideration. In my view, such statements, in conjunction with the attending circumstances, are sufficient to demonstrate a “reasonable likelihood” of retaliation against Appellant for exercising his right to appeal such that a presumption of vindictiveness is implicated. See generally United States v. Esposito, 968 F.2d 300, 303 (3d Cir.1992) (discussing the applicable standards for a due process claim premised upon vindictiveness). Nevertheless, the presumption may be overcome by objective information in the record. See United States v. Goodwin, 457 U.S. 368, 374 , 102 S.Ct. 2485, 2489 , 73 L.Ed.2d 74 (1982). In this case, the record indicates that the PCRA court had initially been motivated by a concern with the sentencing disparity between Appellant and his co-defendants. As the PCRA court conceded, however, “[b]ecause a sentencing jury is required to look beyond the facts of the crime to the character and record of the individual defendant, different sentences for co-conspirators does not mean that one of the sentences is disproportionate.” Commonwealth v. Speight, 544 Pa. 451, 471 , 677 A.2d 317, 327 (1996).
Moreover, none of the reasons articulated by the PCRA court for granting Appellant a new penalty hearing included a finding concerning prejudice and, significantly, support for such a finding did not exist, as Appellant failed to proffer any new or additional mitigation information to establish how the outcome of the penalty hearing would have been different. Absent such proof, no basis existed upon which to award Appellant relief in the first instance. See generally Commonwealth v. Kimball, 555 Pa. 299, 312 , 724 A.2d 326, 333 (1999) (denoting the standard for relief under the PCRA). On this record, therefore, I would conclude that the presumption of vindictiveness was adequately rebutted.
Second, I depart from the majority’s evaluation of Appellant’s ineffectiveness claim involving the propriety of the trial court’s instructions on accomplice and conspiratorial liability in *543 connection with a charge of first-degree murder. In such a circumstance, the accomplice or co-conspirator must possess a specific intent to kill to be convicted of first-degree murder. See Commonwealth v. Huffman, 536 Pa. 196, 199 , 638 A.2d 961, 962 (1994). The trial court is therefore required to “clarify for the jury that the specific intent to kill necessary for a conviction of first-degree murder must be found present in both the actual killer and the accomplice.” Commonwealth v. Chester, 557 Pa. 358 , 380 n. 12, 733 A.2d 1242 , 1253 n. 12 (1999). As indicated by the majority, however, the trial court instructed the jury concerning accomplice and conspirator liability, explaining that Appellant could be found guilty of a crime without finding that he personally engaged in either the conduct required or the commission of the crime, provided that he acted as an accomplice or conspirator. In addition, the court permitted the jury to infer that Appellant possessed the specific intent to kill necessary for first-degree murder based upon the use by one of his accomplices or co-conspirators of a deadly weapon on a vital part of the victims’ bodies. These instructions permitted the jury to find Appellant guilty of first-degree murder based upon the mental states of his accomplices or co-conspirators. 2
In the context of a direct appeal and where the issue has been properly preserved, such an error is not harmless. See Huffman, 536 Pa. at 200 , 638 A.2d at 963 (explaining that, “an uncured inaccurate charge as to a fundamental issue of the law is not harmless error”). On the other hand, when the issue has been raised in connection with an allegation of ineffectiveness, however, the Court has declined to deem the error prejudicial where the defendant was also convicted of a conspiracy to kill, as such objective presupposes the requisite specific intent. See Commonwealth v. Wayne, 553 Pa. 614, 633 , 720 A.2d 456, 465 (1998). At the same time, however, in *544 circumstances in which a conspiracy involves multiple objectives, including murder, several recent decisions of federal courts have highlighted that the absence of an instruction respecting the specific intent to kill for first-degree murder may allow a jury to infer, improperly, that the mental state necessary to enter into a conspiracy to commit a lesser crime (for example, robbery) also establishes that required for first-degree murder. See, e.g., Smith v. Horn, 120 F.3d 400 , 413 (3d Cir.1997); Bronshtein v. Horn, No. CIV. A. 99-2186, 2001 WL 767593 , at *15 (E.D.Pa. July 5, 2001). 3
The problem identified by the federal courts would be present in this case had the trial court issued a general conspiracy charge subsuming all of the criminal objectives identified in the indictment, since the conspiracy was initially alleged as one to commit “murder, aggravated assault, recklessly endangering another person, possession (sic) instrument of crime, [and] violation [of the] Uniform Firearms Act.” The trial court’s conspiracy instructions to the jury, however, framed the charge as solely a conspiracy to commit murder, and thus, the specific issue presented in the Smith and Bronshtein cases is not presented here.
A variant of the federal courts’ concern is in issue, nevertheless, since the trial court’s instruction framed the objective of the conspiracy as “murder” (as opposed to a conspiracy to kill), and the jury was separately instructed that the definition of murder generally included acts perpetrated with an intent falling short of a specific intent to kill. See generally 18 Pa.C.S. § 2502 (identifying the degrees of murder); Wayne, 553 Pa. at 631 , 720 A.2d at 464 (differentiating first-degree murder from all other forms of homicide). Accordingly, the jury’s finding of a conspiracy to commit murder in this case does not necessarily indicate that the jury actually found that Appellant himself possessed the requisite specific intent for first-degree murder. In other words, the Wayne rationale *545 does not fully resolve the prejudice inquiry in the circumstances of this case.
Although I therefore recognize that, given the trial court’s defective instructions, there is some possibility that the jurors may have concluded that Appellant conspired at most to commit third-degree murder as the basis underlying their finding of his guilt as to first-degree murder, I do not believe that there is a reasonable probability that this in fact occurred. The evidence surrounding the murders indicates that Appellant and his co-defendants confronted the victims on a street corner after warning them about interfering with the drug trafficking conducted in that area by Appellant’s group. See Speight, 544 Pa. at 458-59 , 677 A.2d at 320 . Immediately thereafter, Appellant and his co-defendants brandished firearms and began shooting, killing two of the victims, and severely injuring two others. See id. at 459 , 677 A.2d at 320-21 . Particularly given the involvement of deadly weapons and the manner of their use, it seems to me to be far more likely that the jury determined that the intended object of the conspiracy was its actual result, i.e., the killing of the victims. Thus, I conclude that Appellant has not satisfied the prejudice requirement for relief under the Post-Conviction Relief Act. See 42 Pa.C.S. § 9543(a)(2)(ii).
Chief Justice CAPPY and Justice NIGRO join this concurring opinion.
. The PCRA court explained its reasons for reversal in an opinion filed approximately two months later.
. Contrary to the majority, I do not view the trial court’s general instructions on accomplice liability and conspiracy as remedying this defect, as the jury was not otherwise advised that to convict Appellant of first-degree murder based on his status as an accomplice he must have possessed a specific intent to kill. Accord Huffman, 536 Pa. at 199 , 638 A.2d at 962-63 .
. Notably, the federal courts in Smith and Bronshtein employed a harmless error standard in analyzing the issue; as noted, the more stringent prejudice standard is applicable presently.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754088. Public record. Not legal advice.