# Commonwealth v. Spotz > Supreme Court of Pennsylvania · April 29, 2011 · 610 Pa. 17 URL: https://www.frixlaw.com/law-library/cases/9785132 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Mark Newton SPOTZ, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** April 29, 2011 - **Citations:** 610 Pa. 17; 18 A.3d 244; 2011 Pa. LEXIS 1030 - **Precedential status:** Published - **Opinion:** Concurrence by Saylor - **Judges:** Baer, Castille, Eakin, McCAFFERY, Melvin, Orie, Part II, Saylor, Todd - **Cited by:** 741 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/9785132 ## How later opinions describe it (automated extraction) - holding in an appeal from a murder conviction that the Commonwealth did not commit a Brady violation by withholding information that a third party was alleged to have been involved in a years-old unrelated murder, notwithstanding Spotz’s argument that this information was excu… - explaining that “[t]o establish a Brady violation, [a defendant] must prove[:] [1] the evidence [at issue] was favorable to the accused, either because it is exculpatory or because it impeaches; [2] the evidence was suppressed by the prosecution, either willfully or inadverten… - concluding that where the appellant fails “to set forth all three prongs of the ineffectiveness test and [to] meaningfully discuss -8- J-S31035-24 them, he is not entitled to relief, and we are constrained to find such claims waived for lack of development” - stating that “[t]here is no Brady violation when the appellant knew -5- J-A23045-19 or, with reasonable diligence, could have uncovered the evidence in question, or when the evidence was available to the defense from non-governmental sources.” - holding that when an appellant knowingly, voluntarily, and intelligently has chosen to exercise this right of self-representation, the court will not consider any ineffectiveness claims that arose from the period of self-representation ## Opinion text Justice SAYLOR, concurring. I join Sections 6, 7, 8, 10, 12, 14, 17, 18, and 20 of the majority opinion, concur in the result with regard to the *194 balance of the opinion, and offer the following comments arranged in conformity with the designated sections of the majority opinion. Guilt Phase 2. Waiver of Right to Counsel As to the waiver of right to counsel, a main thrust of Appellant’s claim is that his counsel failed to conduct an adequate guilt-phase investigation and, therefore, left him with a Hobson’s choice of proceeding with unprepared counsel or representing himself. See Brief for Appellant at 13-15. At the outset, on review of this record, it appears to me that the attorney put a great deal of time, effort, and thought into the representation of his client, particularly with regard to the penalty phase. See Majority Opinion, at 122-29, 18 A.3d at 306-11. It seems equally clear, however, that he conducted a very limited guilt-phase investigation. For example, the following interchanges with the attorney occurred in the post-conviction proceedings: Q. [B]ased upon the Commonwealth’s discovery, you did not conduct an independent investigation? A. I think there’s some truth to that, yes. Q. You said that you considered the evidence of the Commonwealth to advise the defendant to plead guilty. Is that all you considered in giving your advice to Mr. Spotz? A. No. Q. What else did you consider in giving that? A. I though he was an unpersuasive witness. Q. [D]o you recall why or why not you may have [decided against representing Appellant at trial through separate attorneys at the guilt and penalty phases of trial]? A. Because I think the major effort, frankly, was at the penalty phase. *195 Q. When it came time for — when you were in the pretrial stage, did there come a time in which you indicated to Mr. Spotz what defense you wanted to present at the guilt phase? A. No. My counsel to Mr. Spotz was to plead guilty, not to put forward a defense at the guilt phase. It was not a position that he appreciated. Q. Was it after that that he indicated that he wanted to represent himself? A. Yes. N.T., May 10, 2007, at 280; N.T., May 11, 2007, at 31; id. at 28-29; N.T., May 10, 2007, at 175. Moreover, counsel confirmed that there was no investigation relative to an intoxication/diminished capacity defense and, had there been evidence of drug intoxication, such an investigation should have been pursued. See N.T., May 10, 2007, at 229. The attorney’s decision not to pursue the line of inquiry was in tension with his testimony that he understood that Appellant’s extensive drug use on the day of his Cumberland County offenses was well established. See N.T., May 11, 2007, at 20. Counsel’s explanation for foregoing a guilt-phase investigation into the possibility of diminished culpability was: I guess I was persuaded by the Commonwealth’s evidence of Mr. Spotz’s behavior starting in Harrisburg with the apparent abduction and withdrawal of money from a bank, the driving of a car from there to Carlisle, the shopping at a sporting goods store. In all of that, I was not receiving any information of impairment. You asked me yesterday whether I pursued an intoxication defense, ... and I did not. So either as a defense or in mitigation the fact that he was flying high on drugs on the day of the event, I did not put that forward. I’m not certain that that would have a mitigating effect to the jury, and I’m not certain insofar as the question you asked me yesterday that being high on cocaine has the same *196 intoxication effect as to be an intoxication defense. I suspect that’s why that was not investigated at the guilt phase. N.T., May 10, 2007, at 280; N.T., May 11, 2007, at 20. I appreciate that — in light of the multiple murders committed during Appellant’s crime spree, as well as the brutal calculation apparent in the kidnapping and killing of Ms. Amstutz — the attorney’s task relative to both guilt and penalty was daunting. Nevertheless, given the limited options and the strong evidence of contemporaneous drug use, it does seem to me that the possibility of an intoxication defense should have been investigated. While I agree with counsel’s reservations about the likelihood that a jury would consider voluntary intoxication as reducing Appellant’s culpability in the circumstances, counsel very plainly was faced with a limited range of options in any event. I join the majority’s holding on this point, primarily because I agree that Appellant has not established that a further investigation concerning the degree of his intoxication would have impacted his own decision-making as to his waiver. See Majority Opinion, at 53-54,18 A.3d at 264-66. I also believe counsel should have investigated the allegations regarding Charles Carothers’ potential involvement in the killing of Ms. Amstutz. See Majority Opinion, at 59-61,18 A.3d at 268-70 (setting out the background and allegations relative to Carothers’ involvement with Appellant in the relevant time frame). I am persuaded, however, that counsel’s assessment that the hearsay evidence produced from fellow prisoners implicating Carothers in the killing was not sufficiently trustworthy to warrant admissibility. See N.T., May 10, 2007, at 230-39. Furthermore, it would appear to me that, much like the evidence of voluntary intoxication, the evidence of Carothers’ involvement was a two-edged sword in any event. For example, one of the prisoners testified on post-conviction that, before she was killed, Ms. Amstutz had been placed in the trunk of her car while Appellant and Carothers were “riding around” and “getting high.” See id. at 98. These were appalling details which the jurors did not hear but *197 could very well have encountered had the prisoners testimony been admitted into evidence at trial. Moreover, the other prisoner’s accounts were internally inconsistent in material respects. For instance, while in some accounts the prisoner implied that Carothers said Appellant was incapacitated when Ms. Amstutz was killed, in another he had said he “heard Carothers saying how he and Spotz pulled [Ms. Amstutz] out of the car and dumped her along the side of the road[.]” Id. at 32 (quoting the prisoner’s statement dated April 3, 1996). In light of Appellant’s involvement in two previous calculated killings of female victims whose vehicles he had also seized within the past two days, it seems to me to be very unlikely that jurors would have believed that it would have been his intention to ever release Ms. Amstutz. Finally, I respectfully disagree with the majority to the degree it suggests that a defendant’s reasons for exercising a right to self-representation are irrelevant in a waiver colloquy. See Majority Opinion, at 53 n. 12, 18 A.3d at 265 n. 12. The Starr decision, cited by the majority, strongly confirms that a trial court may not substitute its own judgment for that of the defendant. See Commonwealth v. Starr, 541 Pa. 564, 583-85 , 664 A.2d 1326, 1336-37 (1995). I do not read Starr , however, as preventing the court from probing the defendant’s reasons to evaluate the rationality of the decision and to determine, for example, whether some dereliction on the part of counsel has contributed to it. Cf. James v. Brigano, 470 F.3d 636, 644 (6th Cir.2006) (explaining that “the choice between unprepared counsel and self-representation is no choice at all”); United States v. Silkwood, 893 F.2d 245, 248 (10th Cir.1989) (establishing a rule prevailing in the Tenth Circuit that, “[f]or the waiver to be voluntary, the trial court must inquire into the reasons for the defendant’s dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se ”). While I am aware of no federal constitutional requirement that a court inquire into a defendant’s reasons, accord United States v. Robinson, 913 F.2d 712, 716 (9th Cir.1990), I see no reason to dissuade such inquiry. *198 4. Prosecutor Misconduct During Guilt Phase Closing Argument I differ with the majority’s decision that Appellant’s claims in this category are “trivial” and “frivolous.” Majority Opinion, at 76, 77-78, 18 A.3d at 278, 279. In particular, understanding the prosecutor’s justifiable frustration with Appellant’s performance in his self-representation, I do not believe it was proper for him to relate such performance to Appellant’s crimes or to personalize the matter with the jury by asserting an attempt on the part of a pro se litigant to “fool you.” N.T., May 15, 1996, at 94. I also differ with the majority’s speculation that “[tjhere is no question that, if appellate counsel had invoked the relaxed waiver doctrine in an attempt to obtain review of the above comments, we would have declined to grant such review.” Majority Opinion, at 77, 18 A.3d at 279. In this regard, I do not believe, in the relevant time period, the Court was widely exercising its discretion to deny relaxed-waiver review on direct review in capital cases. In the end, however, in light of the trial court’s instructions concerning the remarks of counsel, and although I would disapprove some of the prosecutor’s comments, I find that Appellant has not established that they “had the unavoidable effect of undermining the neutrality of the jury so as to preclude the rendering of a true verdict.” Commonwealth v. Kennedy, 598 Pa. 621, 634 , 959 A.2d 916, 923-24 (2008) (setting forth the prevailing standard of review relative to claims of prosecutorial misconduct). 6. Prior Criminal Acts Evidence and Jury Instructions As noted, I join the majority’s reasoning and disposition on this claim. I would only add that I strongly agree with the wide majority of other jurisdictions which have concluded that a contemporaneous instruction on the limited use of prior-bad-acts evidence is the preferred practice. See, e.g., Lesko v. Owens, 881 F.2d 44, 56 (3d Cir.1989); United States v. Cuch, 842 F.2d 1173, 1177 (10th Cir.1988); People v. Heard, 187 Ill.2d 36 , 240 Ill.Dec. 577 , 718 N.E.2d 58, 72 (1999); People v. Abernathy, 402 Ill.App.3d 736 , 341 Ill.Dec. 737 , 931 N.E.2d *199 345, 361 (2010); State v. Angoy, 329 N.J.Super. 79 , 746 A.2d 1046, 1052-53 (App.Div.2000) (“[A] prompt delivery of limiting instructions, either before, simultaneously with, or immediately after, the admission of other crimes evidence is preferable, and-unless there is some compelling reason to do otherwise-should be standard procedure followed by trial courts in all cases.”); cf. Lott v. State, 98 P.3d 318, 335 (Okla.Crim.App. 2004) (indicating that a trial court “must issue contemporaneous and final limiting instructions”). Penalty Phase 9. Burglary Convictions as an Aggravating Factor I support the majority’s holding on this question, as I have in and since Commonwealth v. King, 554 Pa. 331, 369-70 , 721 A.2d 763, 782-83 (1998), based on precedent. I note only that Appellant’s references to the substantially more lenient approach reflected in the two-strikes sentencing law, see Majority Opinion, at 86-87, 18 A.3d at 285 n. 25, demonstrate that this Court does not always apply a narrowing construction to aggravating circumstances in death-penalty cases. Cf. Commonwealth v. Mitchell, 588 Pa. 19, 84 , 902 A.2d 430, 469 (2006) (Saylor, J., concurring) (“I believe that an unnecessarily broad construction of provisions of the death penalty statute renders the statute vulnerable to constitutional attack.”). 11. Prosecutorial Comments During the Penalty Phase Although I support the PCRA court’s conclusion that “[njothing stated by the prosecutor was so prejudicial that the jury was incapable of rendering a true verdict,” Commonwealth v. Spotz, CP-21-CR-0794-1995, slip op. at 54 (C.P. Cumberland, June 26, 2008), I have reservations about the majority’s categorical dismissal of Appellant’s concerns here. While it is true that this Court has indicated that it is permissible for a prosecutor to “disparage” mitigation evidence proffered by a defendant, see Majority Opinion, at 97-OS, 18 A.3d at 291-92, certainly a prosecutor may not deny there is some mitigating effect of the circumstances the Legislature expressly has denominated as mitigating, nor may he *200 inject unfair prejudice into the proceedings. Thus, as with many other issues, assessment of these types of claims involves matters of degree and not mere categorization. Notably, moreover, some other jurisdictions have taken a more restrictive approach to overt denigration of a mitigation case. See, e.g., Williamson v. State, 994 So.2d 1000, 1014 (Fla.2008) (highlighting that the Florida high court has “long recognized that a prosecutor cannot improperly denigrate mitigation during a closing argument”). To the degree we continue to see prosecutorial arguments implying that no weight should be afforded by jurors to statutorily-prescribed mitigators and/or approaching the boundaries of fairness, it seems to me advisable to consider a similar approach. 13. Simmons “Life Means Life” Instruction I support the majority’s holding on this claim solely in light of this Court’s holding that Kelly v. South Carolina, 534 U.S. 246 , 122 S.Ct. 726 , 151 L.Ed.2d 670 (2002), is to be applied only prospectively. See Spotz, 587 Pa. at 92-93, 896 A.2d at 1245-46. I specifically disassociate myself from the dictum concerning Kelly’s application to this pre-Kelly case, see Majority Opinion, at 115-17, 18 A.3d at 302-03, with which I have material differences. Finally, in light of the assertions in Mr. Chief Justice Castille’s concurrence, some of which I have previously supported, I believe that a referral to our lawyer disciplinary apparatus is warranted. This would permit the named attorneys to respond, and it would provide a foundation for the imposition of any appropriate sanctions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785132. Public record. Not legal advice.