# Commonwealth v. Zettlemoyer

> Supreme Court of Pennsylvania · December 30, 1982 · 500 Pa. 16

URL: https://www.frixlaw.com/law-library/cases/9760033

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Keith ZETTLEMOYER, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 30, 1982
- **Citations:** 500 Pa. 16; 454 A.2d 937; 1982 Pa. LEXIS 679
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** O'Brien, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson
- **Cited by:** 497 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532 (2003).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760033

## How later opinions describe it (automated extraction)

- holding that the “rights secured by the Pennsylvania prohibition against ‘cruel punishments’ are co- extensive with those secured by the Eighth and Fourteenth Amendments”
- explaining that “significant issues perceived sua sponte by this Court ... will be addressed and, if possible from the record, resolved” under § 9711(h)(3)
- holding Section 9711 does not violate a defendant’s due process protections by placing on the defendant the burden of proving, by a preponderance of the evidence, the existence of mitigating circumstances
- holding that the current death penalty statute was acceptable under both the federal and the state Constitutions

## Opinion text

ROBERTS, Justice,
dissenting.
Although I agree that the jury’s verdict of guilty of murder of the first degree should not be disturbed, I do not agree that the judgment of sentence of death is properly affirmed. On this record it cannot be concluded that the Commonwealth has borne its burden of proving, beyond a reasonable doubt, the presence of an aggravating circumstance which would permit the imposition of the death penalty pursuant to 42 Pa.C.S. § 9711(d). Moreover, appel *78 lant has not had the opportunity to develop claims challenging the effective assistance of trial counsel, an opportunity afforded through the Post-Conviction Hearing Act to all defendants who receive judgments of sentence other than the death penalty.
I
Appellant was twenty-five years of age at the time of sentencing. The parties agreed that at least one mitigating circumstance was present in this case: that the defendant had no significant history of prior criminal convictions. See 42 Pa.C.S. § 9711(e)(1). Of the ten aggravating circumstances defined by the Legislature, only one was alleged by the Commonwealth to be present:
“The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.”
42 Pa.C.S. § 9711(d)(5) (emphasis supplied). On this record it is clear that there is insufficient evidence to establish all necessary elements of this statutorily-defined aggravating circumstance. The Commonwealth’s evidence showed only that the victim’s name had been read from a list of Commonwealth witnesses at the jury-selection stage of the trial of appellant on felony charges. The Commonwealth presented no evidence as to the nature of the victim’s proposed testimony at the felony trial from which the jury could conclude that the victim was “a prosecution witness to a murder or other felony committed by the defendant . . . . ”
Under the majority’s reading of section 9711(d)(5), the killing of any prosecution witness constitutes an aggravating circumstance so long as the witness was killed by the defendant in order to prevent the witness’s testimony against the defendant in a felony case. This reading gives effect only to that portion of section 9711(d)(5) requiring the Commonwealth to establish motive; of the remainder of section 9711(d)(5), which requires the victim to have been a *79 “prosecution witness to a murder or other felony,” all but the word “prosecution” has been rendered mere surplusage by the majority.
The majority’s determination that section 9711(d)(5) imposes no burden upon the Commonwealth to establish that the victim would have presented eyewitness testimony does not support the majority’s conclusion that the killing of any prosecution witness constitutes an aggravating circumstance under section 9711(d)(5). Under the majority’s reading of section 9711(d)(5), the killing of an expert witness or a witness who provides only a foundation for other testimony would be within the scope of section 9711(d)(5) even though the plain language of section 9711(d)(5) requires that the victim be a “witness to a murder or other felony committed by the defendant.” This statutory requirement, easily met in much the same manner as an offer of proof, may not properly be disregarded.
If the Commonwealth had presented evidence which tended to show that the victim would have provided the Commonwealth with a compelling case of circumstantial evidence of appellant’s guilt on the felony charges, this Court would be squarely presented with the question of whether the Legislature intended that section 9711(d)(5) should be limited to the killing of eyewitnesses. Where, however, as here, the Commonwealth has presented no proof whatsoever regarding the nature of the victim’s testimony, it is evident that the elements of section 9711(d)(5) have not been met. The Commonwealth having failed to meet its burden of proving the presence of an aggravating circumstance, the jury’s sentence must be set aside, and a life sentence imposed.
II
Appellant is represented by the Public Defender of Dauphin County, the same public defender who represented appellant at trial and at the sentencing hearing. Thus far there has been no inquiry into whether appellant has been accorded his constitutional right to the effective assistance *80 of counsel. A review of the record suggests that counsel’s strategy at the sentencing hearing may fairly be questioned: counsel challenged the existence of an aggravating circumstance pursuant to 42 Pa.C.S. § 9711(d)(5) purely on a legal ground, and made no effort to refute the alleged motive for the killing from a factual standpoint.
If this were a conventional case, in which a judgment of sentence other than death were imposed, appellant would be able to challenge the effectiveness of counsel in subsequent proceedings initiated pursuant to the Post-Conviction Hearing Act. Here, the sentence imposed forecloses the availability of those subsequent proceedings. See 42 Pa.C.S. § 9711(i) (record to be transmitted to Governor at close of this Court’s review).
Appellant’s potential claims of ineffective assistance could conceivably be heard by the federal courts. Yet there is a serious risk that the writs necessary to meaningful federal court review could not be timely obtained. Alternatively, this Court could independently comb the entire record in search of questionable strategies and proceed to determine whether the strategies meet the standard of effective assistance established by our case law, see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967). However, such an approach is essentially a search for “plain and fundamental error,” a doctrine abrogated by this Court because of its uneven results and inefficiency. See Commonwealth v. Clair, 458 Pa. 418 , 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974). Such an approach also overlooks the fact that frequently the reasons for counsel’s strategy do not appear of record, and an evidentiary hearing must be held to ascertain the unknown facts.
Here, the need for a hearing on counsel’s effectiveness is critical. There are facts of record which would support a theory that the killing was motivated by financial considerations and not by a desire to prevent the victim from testifying: appellant had incurred a substantial amount of debt before he killed the victim, and appellant was in possession *81 of a large amount of cash when taken into police custody soon after the killing. Although it is possible that counsel may have had legitimate reasons not to pursue this or any other alternative motive, it is equally possible that counsel’s reasons did not serve to advance the interests of appellant, or that counsel simply overlooked relevant evidence. Without an evidentiary hearing, this Court cannot determine whether counsel’s course of conduct was constitutionally effective.
Rather than abdicate responsibility to the federal courts, or purport to engage in a search for error on the basis of an incomplete record, this Court should fashion an appropriate procedure which assures proper inquiry into the effectiveness of counsel in death cases. One such procedure would require the appointment of new counsel prior to the direct appeal from a judgment of sentence, of death. Newly appointed counsel would be obliged to gather and to evaluate all facts necessary to the determination of whether trial counsel provided the defendant with effective assistance, and then to submit a petition to the court of common pleas in the nature of a petition for post-conviction relief, confined to the question of whether trial counsel was effective. The court of common pleas would conduct an evidentiary hearing on newly appointed counsel’s petition and, after making appropriate findings of fact, enter an order which disposes of the petition.
The present record does not permit a full and fair determination of whether appellant was afforded his constitutional right to the effective assistance of trial counsel. Until a hearing on counsel’s effectiveness has been held, this Court cannot fairly state that it has discharged its statutory duty to provide a thorough review of the judgment of sentence of death.
O’BRIEN, C.J., joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760033. Public record. Not legal advice.