Commonwealth v. Clayton

*288 FLAHERTY, Justice, dissenting.

Although I agree that appellant’s conviction should be upheld, I take this opportunity to voice my disapproval of the extensive discussion by the majority regarding the circumstances of a crime which was unrelated to the matters sub judice and of which appellant was completely exonerated by virtue of his acquittal. Everyone in America who stands accused of a crime is presumed — is—innocent until proven guilty. Appellant was acquitted of the Dougherty murder, and that acquittal forecloses any further consideration that appellant may have committed that offense. Thus, any similarity between the Grice and Summers murders and the Dougherty murder, while interesting from an historical perspective, is not a proper consideration in reviewing appellant’s present convictions. See, my authored concurring opinion filed in Commonwealth v. Clayton, 506 Pa. 24, 34 , 483 A.2d 1345, 1350 (1984).

I dissent because, in my view, the trial court’s denial of appellant’s request for a short continuance of the sentencing phase, from 3:11 p.m. to the next regular court business day, so that appellant’s mother could testify on his behalf, constituted an abuse of discretion. In assessing the propriety of the court’s ruling, it is critical to remember that this is a death case, and it hardly needs repeating here that death is a severe and irreversible penalty. In view of the awesome severity of the punishment that was imposable and indeed imposed, the slight delay necessary to facilitate the mother’s appearance and testimony at her son’s trial for his life seems a minimal imposition on the criminal justice system. Moreover, when a man’s life hangs in the balance, the preference of one of the jurors to attend a school on the next scheduled court business day should carry minimal weight in determining whether to grant a continuance, especially to provide a mother’s relevant testimony on behalf of mitigating circumstances!

The majority concludes the denial of the request for a short continuance was justified because the mother’s testimony would have been cumulative. The mother would have *289 testified that appellant’s early development was marred by witnessing the shooting of his mother by his father when appellant was five years old, the subsequent absence of a father-figure, and extreme poverty such that appellant learned to steal for food at his mother’s knee. I would not lightly dismiss the proffered testimony as cumulative merely because the parties stipulated that a psychiatrist would have testified to the same events, primarily because I believe a mother’s testimony necessarily has a uniquely strong effect upon the fact finder — certainly different from the effect of hearing a psychiatric report read into the record!

In closing, the Commonwealth argued, “The only way you [the jury] know that he [appellant] supposedly saw his father shoot his mother is because Willie Clayton told Dr. Sadoff____ Dr. Sadoff finally based his opinion on what this man, Willie Clayton, in his self-serving history said to Dr. Sadoff.” The clear implication is that appellant lied to the psychiatrist. The Commonwealth thus attempted to discredit the psychiatrist's conclusions by arguing that the underlying data which was supplied by appellant was unreliable. Had appellant's mother been allowed to testify, it is possible, of course, that the jury could have viewed her testimony as biased and self-serving as well, but it is also possible that she would have corroborated appellant’s version and bolstered the validity of the psychiatrist’s conclusions.

The majority also justifies the exclusion of the mother’s testimony because “a jury has no constitutional duty to consider 'mere sympathy.’ California v. Brown, — U.S. —, 107 S.Ct. 887 , 93 L.Ed.2d 984 (1987).” Maj. op. at 281. That the jury is not required to sympathize with a defendant is indisputable, and thus it is that juries are cautioned to listen to and apply the law given them by the court to the facts which are properly proved. Nevertheless, inherent in the power of the jury is the power to dispense mercy. It is true that, in other contexts, our cases have limited the jury’s mercy dispensing function to avoid the possibility of *290 verdicts that are arbitrary, Commonwealth v. Williams, 490 Pa. 187, 191 , 415 A.2d 403, 405 (1980). Likewise, the death penalty statute has structured the procedure for imposing the death sentence to avoid the possibility of sentences which are wholly arbitrary. Nevertheless, the jury’s common law capacity to dispense mercy, albeit not totally unbridled, has been preserved. Our cases have recognized:

[The Pennsylvania death penalty] statute permits the defendant to introduce a broad range of mitigating evidence that can support the finding of one or more mitigating circumstances which may outweigh the aggravating circumstances found by the jury. Appeals for mercy and leniency can be founded upon and made through introduction of evidence along this broad spectrum of mitigating circumstances.

Commonwealth v. DeHart, 512 Pa. 235, 257 , 516 A.2d 656, 668 (1986), quoting Commonwealth v. Peterkin, 511 Pa. 299, 327 , 513 A.2d 373, 387 (1986). (Emphasis supplied.) The weighing function represents the essence of the jury’s capacity to dispense mercy in a death penalty proceeding, and, under the circumstances of this case, it appalls me that appellant was denied the right to adequately present all the mitigating circumstances he chose.

Because it is impossible to predict what effect the mother’s testimony might have had upon the jury, I would reverse the judgement of sentence of death and remand for imposition of a life sentence.

ZAPPALA, J., joins this dissenting opinion.