Petition for Writ of Certiorari — DeAngelo Zieglar, Petitioner v. Pennsylvania

IN THE SUPREME COURT OF THE UNITED STATES

DEANGELO ZIEGLAR, Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA, Respondent.

On Petition for Writ of Certiorari to the Superior Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

Counsel of Record:

BRANDON P. GING, ESQUIRE

Deputy Public Defender of Appeals

Pennsylvania Identification No. 207116

ALLEGHENY COUNTY PUBLIC DEFENDER’S OFFICE

400 County Office Building

542 Forbes Avenue

Pittsburgh, Pennsylvania 15219-2904

(412) 350-2377

Attorney for the Petitioner

QUESTION PRESENTED

In June 2022, the Commonwealth of Pennsylvania charged DeAngelo Zielgar

(“Mr. Zieglar”) with capital murder. However, since 2015, there has been a formal

and indefinite moratorium on executions in Pennsylvania. Moreover, on February

16, 2023, the Governor of Pennsylvania publicly announced: “I will not issue any

execution warrants during my term as Governor. When an execution warrant

comes to my desk, I will sign a reprieve each and every time.” In light of these

circumstances, and based on this Honorable Court’s decision in Caldwell v.

Mississippi, 472 U.S. 320 (1985), the trial court entered an order declining to

empanel a death-qualified jury. As the trial court explained, “the jury is not going

to be death-qualified and go through all of that and then be asked to listen to all of

the additional evidence and then listen to the arguments when the Governor has

already said it’s not going to happen. It simply isn’t going to happen. It’s an

”

unreasonable use of court process, in my view.” The Commonwealth appealed, and

the Pennsylvania Superior Court reversed the trial court’s order and remanded for

further proceedings. The Court concluded that the trial court’s (and Mr. Zieglar’s)

reliance on the rationale of Caldwell was “premature.” The question presented is:

In light of Caldwell v. Mississippi, 472 U.S. 320 (1985), where a

state has instituted an indefinite and formal moratorium on the death

penalty, whether a jury can even constitutionally consider that

punishment?

PARTIES TO THE PROCEEDING

The parties to this proceeding are the Petitioner, Mr. Zieglar, and the

Respondent, the Commonwealth of Pennsylvania. All parties to this proceeding

appear in the case’s caption on the cover page.

i

TABLE OF CONTENTS

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Table of Contents ssasassiiennacancsscrersvessosunmasuuaisansersaansstsensneuemsnncasnenevanxenniensevoneneuene ill

Table of AUthoOrities ............:c:essesssessssreneeeeceneneeaaeeeessseseseeceeseeseesseceeeseeeeeesereesereeseceeeees 1v-V

Opinions Below ssesssseecesnecussss iasssancsssivertarnssvssasscesctscsncascccenstesaneaseuniiwonnsscencunnanemencaeonnens 1

Statement Of Jurisdiction .............ccccceeeeceeeceeceeeeeeeeeeeseteteeeeeeenteseesesstseceeneeeeeeeceeeeseeserensess 2

Constitutional Provisions \scississssesessascvesiesecsvstestcoseasrsensrvcnscuuerscsnscecencsnsseasianasaaorenanencess 3

Statement of the Case ........ccccccccscsssseseceeseeeeseeeeeeensuessseeeeseeetetetetseeseseseeeeeseeseeceeeeeereeeeeeaees 4

Reasons for Granting the Petition .sissseosissssssecascsantsiiescccscaissscmviaiscenssavevenveanereccenencees 12

COoncluSiOn ..ssssscccconsssvovevsecerecsrssecencocesesaeseescesssconeevenssesscacesonsscsoeseseneneoecascsssvensnasesseesenees 26

Superior Court’s Opinion ...... .ississsscissisverensscsvsesaccssssssscnnissasianasssaseancceneevenss- Appendix A

Trial Court’s Opimion ..............ccseeeeseeseeeeeeeeeeenscsnsnsnneeesceseceeseseeeeenseceeeesereeseners Appendix B

iii

TABLE OF AUTHORITIES

CASES

Caldweil v. Mississippi, 472 U.S. 320 (1985) scensnneneassnenenceancunarmnaennmens teins 2, 7, 19-20

Chambers v. Mississippi, 410 U.S. 284 (1978) ........cccscecceceeeessesseeeeseseceeessseeceeeeseneseees 17

Commonwealth v. Baker, 511 A.2d 777 (Pa. 1986) .........cccceeeceeesssneeeseesereeseeeeeeeneesereees 20

Commonwealth v. Fletcher, 896 A.2d 508 (Pa. 2006) ...........ccceeceeeseeeeessseeseeeeeeeeeeeeeeees 13

Commonwealth v. Jasper, 737 A.2d 196 (Pa. 1999)........cccccceseeesseeeeeeeeeesenneneaseeeeeneeeees 21

Commonwealth v. McBryde, 909 A.2d 835 (Pa.Super. 2006) ..........:::cccseeseeeceseeeeeeeeees 14

Commonwealth v. Noel, 104 A.38d 1156 (Pa. 2014) 0.2... ceceneeeeeeeteeeeeeseseeeneneeceeeees 13

Commonwealth v. Pittman, 466 A.2d 1370 (Pa.Super. 19838) ...........cccceeeesseseeeereeeeeees 13

Commonwealth v. Zieglar, 322 A.3d 256 (Pa.Super. 2024)............. 1, 12, 14-15, 16, 21

Eagle Pharms., Inc. v. Hospira, Inc., 424 F.Supp.3d (D. Del. 2019)... 18

Ford v. Wainwright, 477 U.S. 399 (1986 )ssissscscsassersssnnconsssscccssevonsnencenenssvesansonereveseees 13

Ross v. Oklahoma, 487 U.S. 81 (1985) .......ccccscssssssssseseccesccsscccccsstccessscnssceseeaseagnssseeseens 12

State v. Taylor, 434 P.3d 331 (Or. 2019) ccsssssccencnensnernansoisenoancenencssesnnastsonererenenasieaee 17-18

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. Vsssisissssssoccavssceenvasansesenvsozmeonressnsnsnnsaannsasanotoserowontersesasesetessresveneenenene 3

U.S. Const. amend. V1 -seseosonsereerencacessennsoneseseeaeasaesgnaseessevmentsdovuaueasesbateessedsensesbeseseseeies 3

U.S. Const. amend. Villivcisccssncccscsssccssssswenceastusnciaavasnscannsssoasovawanesnienenesssesnnennntncessevexs 3

U.S. Const. amend. XIV srcccsersorverenceroonenonssensnenesennnenensoncnnnassasdaspouayeiesiecsvsveneuvecseuevesssbebs 3

Pa. Const. art. 1, § Ossssusasscasesersevesecsascnsusnsanccccscceusveians axancunuasiaconemennmennnncasenninaronsmennrenien 3

Pa. Const. art. 1, § 18..-cccssserrocssesenonncesenensonsscersecsnsenscononconececosssnnessnsansseeceetsensssecusedsssene 3

Pa. Const. art. 4, § 9...«ssssesesssasiais iroussteemencaiantsussteaneusvessiecussususiversissesntscecsuseeremwens 19

STATUTES

28 U.S.C. § 1257(8) nconmnnensennrossnnisassasinsNeseionigsocsmeaieaayqns ici ssuNKeens tes de sesveneverramoremaNeNeaweR 2

18 Pa.C.S.A. § 2501 (a) siuasssssssvsncvexessearvancaneaareswswessexenssenecansasononnsccnrenmiensemanorcocenmernncnnsegs 4

18 Pa.C€.S.A. § 2502(a)....ccccossncssesessccnnnorscscsesevsvsssasnacnsaans sbussceecmensosssnel cadedecdvedeessadssecsenese 4

18 Pa.C.S.A. § 49101). sscsiscccscccssnsccsesuiaansrswsrevancaacananasseuneascecmsasnvennevenshentonienesnrecsensennenes 4

18 Pa.€.S.A. § 6105(a)(1),..ccsssecesereneoesecsenncesersevesassecconncesnssiseeaansessevavueceetacdsacbssnsveesenetes 4

RULES

Pa.R.Crim.P. 63 Liccovecececerenesensonensensnesevscsnesoserorscorecorcosegcossvesegeascensionse sen ssessnascosstwenseeaasies 13

OTHER

https://www.governor.pa.gov/newsroom/governor-shapiro-announces-he-will-notissue-any-execution-warrants-during-his-term-calls-on-general-assembly-to-abolishthe-death-penalty/ (last visited September 19, 2024)............cccceseessceceeeeeeeseeeeeeeeeeeeees 16

http://www.npr.org/2022/12/15/1143002545/oregon-death-sentence-governor-katebrown (last visited September 19, 2024).............cccccccccssescceeeteeeeeeeeeseeeeeeeeeseeeeeeseneeeneaes 18

OPINIONS BELOW

The Pennsylvania Superior Court’s published opinion is reported at 322 A.3d

256 (Pa.Super. 2024). (Appendix A). The trial court’s memorandum opinion is

unreported. (Appendix B).

STATEMENT OF JURISDICTION

On August 21, 2024, the Pennsylvania Superior Court issued a published

opinion, reversing the trial court’s order declining to empanel a death-qualified jury

based on Pennsylvania’s indefinite moratorium on the death penalty and Caldwell

v. Mississippi, 472 U.S. 320 (1985), and remanding for further proceedings.

Thereafter, on September 20, 2024, Mr. Zielgar timely filed a petition for allowance

of appeal to the Pennsylvania Supreme Court. His petition was denied on February

19, 2025. Accordingly, this Honorable Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS

For purposes of Mr. Zieglar’s petition for writ of certiorari, the verbatim text

of the relevant constitutional and statutory provisions is as follows:

United States Constitution

“No person shall be...deprived of life, liberty, or property, without due process

of law[.]” U.S. Const. amend. V.

“In all criminal prosecutions, the accused shall enjoy the right to...an

impartial jury of the State and district wherein the crime shall have been

committed[.]” U.S. Const. amend. VI.

“(NJor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

“No State shall...deprive any person of life, liberty, or property, without due

process of law[.]” U.S. Const. amend. XIV.

Pennsylvania Constitution

“In all criminal prosecutions the accused hath a right to...an impartial jury of

the vicinage; he cannot be...deprived of his life, liberty or property, unless by the

judgment of his peers or the law of the land.” Pa. Const. art. 1, § 9.

“(Nor cruel punishments inflicted.” Pa. Const. art. 1, § 13.

STATEMENT OF THE CASE

On January 20, 2022, Mr. Zieglar was arrested and charged at CC 202202096

with one count each of Criminal Homicide, 18 Pa.C.S.A. § 2501(a); Persons Not to

Possess Firearms, 18 Pa.C.S.A. § 6105(a)(1); and Tampering With Physical

Evidence, 18 Pa.C.S.A. § 4910(1). On March 18, 2022, following a preliminary

hearing, all charges were held for trial. On April 14, 2022, the Commonwealth filed

notice of its intent to seek the death penalty. The Commonwealth’s notice listed

five aggravating circumstances it intended to prove at sentencing should Mr.

Zieglar be convicted of First-Degree Murder, 18 Pa.C.S.A. § 2502(a). (/d.).

On February 21, 2023, the trial court issued an order directing counsel for

both parties to file, by March 18, 2023, the voir dire questions they intended to use

for jury selection. Both parties complied with the trial court’s order. Furthermore,

both parties’ submissions included questions relating to the death penalty.

On April 5, 2023, the trial court issued an opinion and order rejecting both

Mr. Zieglar’s and the Commonwealth’s proposed voir dire questions in their

entirety, concluding that it was unable to impanel a fair and impartial deathqualified jury. According to the trial court’s order, “the jury selection in this case

will be limited to determining the ability of each juror to be fair and impartial in

deciding the verdict in this case; there will be no jury deliberations as to sentence”

and “counsel for the Commonwealth and counsel for Defendant may submit

proposed voir dire questions which do not mention or refer to the death penalty as a

possible sentence in this case[.]”

Later that same day, the trial court held a status hearing to shed light on its

ruling. Relevantly, the trial court explained:

DEFENSE COUNSEL: Your Honor, I read your order this

morning, and are you precluding the Commonwealth from

seeking the death penalty in terms of, if they’re not given any

instructions, are you going to—if we go to the trial, if there’s a

guilty of first-degree murder, and then instruct the jury on a

death penalty.

TRIAL COURT: I am not going to permit a jury to be deathqualified in this case. That’s the ruling.

DEFENSE COUNSEL: I just wanted clarification.

TRIAL COURT: Well, does it effectively prevent the

Commonwealth from seeking the death penalty? It may. I’m

not looking past my ruling. One would infer that it would, but

I’m not saying it, because I’m not going that far with my ruling.

My ruling says, it’s unreasonable and fundamentally unfair to

put the jury through this process when the governor has already

said there’s a reprieve in every case, no matter what. And so the

jury is not going to be put through the process.

Now, what that means, ultimately, I think in all fairness

to the Commonwealth, they may want to look at this and study

it a little bit and figure out what they interpret it to mean and

what they want to do about it.

But you notice the order doesn’t say, therefore, seeking

the death penalty is precluded in this case. I think effectively it

is, Mr. Sullivan, but I’m not saying it is. I’m saying the jury is

not going to be death-qualified and go through all of that and

then be asked to listen to all of the additional evidence and then

listen to the arguments when the Governor has already said it’s

not going to happen. It simply isn’t going to happen. It’s an

unreasonable use of court process, in my view.

So I just want that to be clear that m not ruling on

anything but whether the jury should be put through the

process, and it’s a function of the discretion of the Court. And

I’m exercising my discretion to say the jury will not be put

through this process. And the legal authority to do that derives

from a court order that I would have to enforce, and I’m not

going to do that. That’s all ’m saying.

On April 13, 2023, the Commonwealth filed a motion to reconsider and

clarify, urging the trial court to rescind its April 5, 2023, order, and “consider the

merits of the voir dire questions submitted by both parties in this case on a

question-by-question basis and in light of the District Attorney of Allegheny

County’s discretion to seek the death penalty in this matter.” The Commonwealth

also inquired whether the trial court intended to “disallow any jury to be selected

and death qualified at any stage of this case? More specifically, if the

Commonwealth obtains a verdict of Guilty as to Murder in the First Degree, is it

this Honorable Court’s position and Order that the Commonwealth will be

prevented from death qualifying a subsequent jury for sentencing and thus

prevented from seeking the death penalty absent a change in stance from Governor

Shapiro or a change in the law of the Commonwealth?” (emphasis in original).

On April 18, 2023, Mr. Zieglar filed a response to the Commonwealth's

reconsideration motion. He also filed a supplemental response on April 21, 2023.

In both filings, Mr. Zieglar maintained that the Commonwealth’s motion should be

denied.

The trial court did not rescind its April 5, 2023, order. Therefore, on May 3,

2023, the Commonwealth timely filed an interlocutory appeal to the Pennsylvania

Superior Court. The trial court subsequently ordered the Commonwealth to file a

concise statement of errors complained of on appeal by May 30, 2023. The

Commonwealth timely filed it on May 26, 2023, challenging the propriety of the

trial court’s order.

On June 28, 2023, the trial court filed its Pa.R.A.P. 1925(a) opinion. Over the

course of 21 pages, the trial court thoughtfully explained how Pennsylvania’s formal

and indefinite moratorium on the death penalty, the governor’s public proclamation

to never carry out the death penalty, and case law from the United States Supreme

Court and Pennsylvania Supreme Court—most notably, Caldwell v. Mississippi,

472 U.S. 320 (1985)—compelled the inevitable conclusion that a death-qualified jury

could not be impaneled in Mr. Zieglar’s case.

On August 8, 2023, the Commonwealth timely filed its brief for appellant. In

relevant part, it stated:

The Judicial Code provides that following the recording of

a verdict of murder of the first degree and before the jury is

discharged, the trial court shall conduct a separate sentencing

hearing in which the jury shall determine whether the

defendant shall be sentenced to death or life imprisonment.

Error! Bookmark not defined. Additionally, the Rules of

Criminal Procedure require the court to provide for a deathqualified jury under these circumstances. In this case, the

court’s Order that precludes the impaneling of a death-qualified

jury constitutes clear error. The Rules of Criminal Procedure

provide that in capital murder cases, the right to individual voir

dire of the venire panel regarding their views on capital

punishment and other life qualifying questions is mandatory.

Moreover, the Sentencing Code explicitly requires that the same

jury decide both a defendant’s guilty and penalty. The trial

court’s Order frustrates these clear legislative intentions.

(underlining and emphasis in original). The Commonwealth additionally argued

that “the jury in this case could easily be preliminarily instructed that the

Governor’s moratorium is temporary and linked to him personally, but, given the

current state of the law, the jury should assume that any death sentence will

eventually be carried out. This was the procedure upheld by the Oregon Supreme

Court in State v. Taylor, 364 Or. 364 (2019), cert. denied, 140 S.Ct. 505 (2019).”

On January 2, 2024, Undersigned Counsel timely filed Mr. Zieglar’s brief for

appellee, summarizing:

Contrary to the Commonwealth’s belief, the trial court did

not abuse its discretion in deciding not to seat a death-qualified

jury in Mr. Zieglar’s case. While the trial court’s order is

unprecedented, so is the fact that there has been a formal

moratorium on executions in Pennsylvania since 2015.

Furthermore, on February 16, 2023, Governor Shapiro publicly

announced: “I will not issue any execution warrants during my

term as Governor. When an execution warrant comes to my

desk, I will sign a reprieve each and every time.” With that in

mind, the trial court accepted the reality of the situation and

reasonably determined that “the jury is not going to be deathqualified and go through all of that and then be asked to listen

to all of the additional evidence and then listen to the arguments

when the Governor has already said it’s not going to happen. It

simply isn’t going to happen. It’s an unreasonable use of court

process, in my view.” Additionally, case law from both the

United States Supreme Court and Pennsylvania Supreme Court

support the trial court’s conclusion that “the risk of

minimization of the jury’s sentencing function in this case is

even greater since the Governor’s proclamation did not

announce the continuation of a moratorium (temporary halt)

but, instead, announced a total cessation of the carrying out of

the death penalty.” As the trial court’s decision regarding the

jury selection process in Mr. Zieglar’s case was not driven by

partiality, prejudice, bias, or ill-will against the Commonwealth,

but, instead, was based on a firm foundation of reason, it did not

commit an abuse of discretion. The trial court’s April 5, 2023,

order must be affirmed.

On March 5, 2024, the Commonwealth’s appeal was orally argued before the

Pennsylvania Superior Court. Subsequently, on August 21, 2024, the Court issued

a published opinion, reversing the trial court’s order and remanding for further

proceedings. Commonwealth v. Zieglar, 322 A.3d 256, 258 (Pa.Super. 2024).

According to the Court, “[t]he legislature has not granted trial courts the authority

to intrude into the Commonwealth’s exercise of discretion [regarding the death

penalty] and, consequently, we reaffirm that a trial court cannot exercise authority

over the Commonwealth’s discretion to seek the death penalty pre-trial, even where

the Governor has imposed a moratorium on imposition of the death penalty.” Id. at

268.

More critically, the Court held:

Furthermore, we observe that the trial court relies upon

Caldwell for the premise that it is unable to impanel a death

jury. The trial court contends that the moratorium, imposed by

Governor Shapiro as the chief executive of the Commonwealth,

removes the decision regarding the death sentence from every

potential juror in violation of Caldwell. See Trial Court Opinion,

6/28/23, at 9, 18-21. Additionally, the trial court determined

that, in light of the conflict between Governor Shapiro’s

moratorium and Caldwell, it would be impossible to appoint a

jury that could properly consider the death penalty.

We find this rationale to be premature. First, the citizens

of this Commonwealth are not presumptively aware of Governor

Shapiro’s moratorium. Furthermore, even if potential jurors

were aware, then the proper forum to discover that alleged

taint would be at voir dire. Here, as we discussed, the trial

court's order prevents the parties from engaging in voir dire

proceedings related to the death penalty, which would make it

impossible to discern whether any taint exists or what effect, if

any, it may have on potential jurors. Thus, the record before us

is underdeveloped for review of this argument.

We further observe that Governor Shapiro’s moratorium

is temporary in nature. Under the laws of this Commonwealth,

Governor Shapiro will not hold his position in perpetuity and,

thus, we cannot agree that the moratorium will presumptively

taint potential jurors in making the difficult determination of

death versus life. Furthermore, we note that Governor Shapiro

stated that he was “granting a reprieve,” not a pardon or

commutation of sentence. See Commonwealth v. Williams, 129

A.3d 1199, 1219 (Pa. 2015) (“reprieve as set forth in Article IV,

Section 9(a) means the temporary suspension of the

execution of a sentence”) (emphasis added, quotation marks

omitted). Consequently, any reprieve granted by Governor

Shapiro does not remove the decision of death from the jury, but

merely delays the implementation of any such decision.

Moreover, despite Governor Shapiro's moratorium, the

Commonwealth’s ability to pursue the death penalty is still the

law. See 42 Pa.C.S.A. § 9711.

Finally, we presume that our legislature is aware of

Governor Shapiro’s moratorium, just as the legislature was

aware of then-Governor Wolfs moratorium. Nevertheless, the

legislature has not amended our death penalty laws.

Additionally, neither our Supreme Court nor the United States

Supreme Court has declared the death penalty to be

unconstitutional. Consequently, unless and until either the law

changes or the death penalty is determined to be

unconstitutional, this Court cannot affirm the trial court’s order

and we consider the Caldwell argument to be unpersuasive and

premature.

Id. at 268 n. 18 (emphasis in original).

On September 27, 2024, Mr. Zieglar, through Undersigned Counsel, timely

filed a petition for allowance of appeal to the Pennsylvania Supreme Court.

Therein, he raised the following relevant issue: “In an issue of first impression and

substantial public importance, in light of Pennsylvania’s indefinite moratorium on

the death penalty, the governor’s public proclamation calling upon the General

Assembly to abolish capital punishment once and for all, and Caldwell v.

Mississippi, Commonwealth v. Baker, and Commonwealth v. Jasper, whether a trial

court has the discretion to determine that a fair and impartial death-qualified jury

cannot be impaneled?” The Supreme Court denied Mr. Zieglar’s petition on

10

February 19, 2025. Therefore, pursuant to Rule 13(1) of this Honorable Court, Mr.

Zieglar timely petitions for writ of certiorari.

11

REASONS FOR GRANTING THE PETITION

I.

As a threshold matter, the Pennsylvania Superior Court noted that “the

prosecutor possesses the initial discretion regarding whether to seek the death

penalty in a murder prosecution.” Zieglar, 322 A.3d at 264 (quoting Commonwealth

v. Buck, 709 A.2d 892, 896 (Pa. 1998)). Importantly, though, the Court also

observed that “the appropriateness of the death penalty is ‘solely a function of the

jury.” Id. (quoting Buck, 709 A.2d at 895). Thus, the prosecutor’s discretion is not

unfettered.

According to the Court, the trial court’s order was an attempt on its part to

preclude the Commonwealth from seeking the death penalty against Mr. Zieglar, in

violation of the Pennsylvania Rules of Criminal Procedure and Sentencing Code. Id.

at 267-268. This was error, as it was an incorrect framing of the issue. Rather, the

issue properly stated was whether the trial court’s order was an appropriate

exercise of its discretion to ensure that Mr. Zieglar, on trial for his life, would have a

competent, fair, impartial, and unprejudiced jury. Indeed, regardless of state

procedural rules and statutes, this Honorable Court has held: “It is well settled that

the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life

the right to an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (citations

omitted).

Furthermore, the Pennsylvania Supreme Court has held:

12

The Rules of Criminal Procedure, including Rule 631,

were enacted to provide for the just determination of every

criminal proceeding, and shall be construed to secure simplicity

in procedure, fairness in administration, and the elimination of

unjustified expense and delay. Pa.R.Crim.P. 101. The process of

selecting a jury is committed to the sound discretion of the trial

judge[.]

Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014) (brackets, bracket text,

internal footnote, and emphasis added). See Commonwealth v. Pittman, 466 A.2d

1370, 1373 (Pa.Super. 1983) (“The trial judges of this Commonwealth exercise broad

powers while presiding at the trial of cases assigned to them. .... Likewise, the

process of selecting a jury is committed to the sound discretion of the trial judge.”).

That the Commonwealth has sought the death penalty against Mr. Zieglar

did not diminish his constitutional rights to due process, a fair trial, and an

impartial jury. Nor did that fact eliminate the trial court’s duty to safeguard Mr.

Zieglar’s constitutional rights. To the contrary, the potential for a death sentence

intensified the trial court’s efforts and exercise of discretion. This Honorable Court

has made abundantly clear that, because “execution is the most irremediable and

unfathomable of penalties[,] ... death is different.” Ford v. Wainwright, 477 U.S.

399, 411 (1986) (citations omitted). So, too, has the Pennsylvania Supreme Court,

acknowledging the existence of “death is different” jurisprudence. Commonwealth v.

Fletcher, 896 A.2d 508, 519 (Pa. 2006).

II.

The Pennsylvania Superior Court ultimately held that, because the

Commonwealth elected to seek the death penalty against Mr. Zieglar, the Rules of

1 See Pa.R.Crim.P. 631 (Examination and Challenges of Trial Jurors).

13

Criminal Procedure and Sentencing Code required the trial court to impanel a

death-qualified jury, come hell or high water. Zieglar, 322 A.3d at 267-268. The

Court, therefore, refused to consider any argument implicating Pennsylvania’s

formal and indefinite moratorium on capital punishment, the governoyr’s public

proclamation calling for its abolition, and Caldwell v. Mississippi. Id. at 268 n. 13.

Respectfully, this was error of constitutional magnitude.

A,

The Court speculated that “the citizens of this Commonwealth are not

presumptively aware of Governor Shapiro’s moratorium. Furthermore, even if

potential jurors were aware, then the proper forum to discover that alleged taint

would be at voir dire.” Id. (emphasis in original).

On the contrary, the Court itself has previously held: “We cite the well-known

legal maxim that everyone is presumed to know the law[.]” Commonwealth uv.

McBryde, 909 A.2d 835, 838 (Pa.Super. 2006) (citations omitted; emphasis added).

Besides, the salient fact remains that all prospective jurors in Mr. Zieglar’s case, in

order to determine whether they could be fair and impartial with respect to

punishment, must be made aware of Pennsylvania’s moratorium and Governor

Shapiro’s public proclamation. Knowing that, the Court erred by ignoring them in

its evaluation of the trial court’s order.

B.

The Court further erred by claiming that Governor Shapiro’s moratorium is

merely “temporary in nature.” Zieglar, 322 A.3d at 268 n. 13. The Court was also

14

inaccurate in its conclusion that “Governor Shapiro will not hold his position in

perpetuity[.]” Jd.

In relevant part, the governor’s exact words, in his public proclamation

issued on February 16, 2023, were:

As Attorney General, I had the privilege of seeing our

criminal justice system up close as the chief law enforcement

officer.

Through that experience, two critical truths became clear

to me about the capital sentencing system in_ our

Commonwealth: The system is fallible, and the outcome is

irreversible.

I have painstakingly considered every aspect of

Pennsylvania’s capital sentencing system, reflected on my own

conscience, and weighed the tremendous responsibilities I have

as Governor.

And I am here today in this Church to tell you I will

not issue any execution warrants during my term _as

Governor.

When an execution warrant comes to my desk, I will

sign a reprieve each and every time.

But I want to go further.

Through many administrations, Governors have called on

lawmakers to reform the system.

To study what changes could look like.

They’ve been open to the idea that our capital sentencing

system is flawed, but fixable.

I believe that misses the mark.

That’s why today, I’m_respectfully calling on the

General Assembly to work with me_to abolish the death

penalty in Pennsylvania—once and for all.

15

Pennsylvania should do what 25 other states have

done in outlawing the death penalty or refusing to impose

it—including many of our neighbors such as New Jersey,

Maryland, and West Virginia.

The Commonwealth’s shouldn’t be in the business of

putting people to death. Period.

I believe that in my heart.

This is a fundamental statement of morality. Of

what’s right and wrong.

And I believe Pennsylvania must be on the right side

of this issue.

https://www.governor.pa.gov/newsroom/governor-shapiro-announces-he-will-not-

issue-any-execution-warrants-during-his-term-calls-on-general-assembly-to-abolish-

the-death-penalty/ (last visited September 19, 2024) (emphasis added).

Simply put, not only is Governor Shapiro seeking to end capital punishment

in Pennsylvania forever, but he clearly will never back down in his attempt to

achieve that end.

Cc

According to the Court, regardless of the moratorium and the governor's

public proclamation, a jury should always assume that a sentence of death

eventually will be carried out based simply on the fact that “the death penalty is

still the law.” Zieglar, 322 A.3d at 268 n. 13.

16

However, this Honorable Court has held that where, as here, constitutional

rights directly affecting the ascertainment of guilt or punishment are implicated,

statutes and procedural rules “may not be applied mechanistically to defeat the

ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Consequently,

circumstances such as reality and the current state of affairs cannot be lightly cast

aside.

Therefore, and beyond Pennsylvania’s indefinite moratorium and the

governor's public proclamation, State v. Taylor, 434 P.3d 331 (Or. 2019) and its

aftermath cannot be ignored.

In Taylor, Oregon Governor Brown stated, upon taking office in 2015, that

she would continue the death penalty moratorium instituted by her predecessor,

Governor Kitzhaber. Id. at 346 n. 13. The defendant argued that “a jury cannot

constitutionally vote to impose the death penalty during a time when the Governor

has imposed a moratorium on the carrying out of such sentences.” Id. at 345. The

Oregon Supreme Court rejected the defendant’s argument because the trial court

specifically cautioned the jury on the moratorium that the governor had imposed on

carrying out the death penalty. Id. The Court reasoned:

The court instructed the jury that, “[iJn legal terms,” the

Governor’s moratorium granted “temporary reprieves of existing

death sentences” but that the jury “should assume that death

sentences handed down while he is Governor will ultimately be

carried out.” That instruction corrected any impression that the

jurors may have had about the meaning of the moratorium and

reinforced that, if they voted to sentence defendant to death,

that sentence would “ultimately be carried out.”

2 The Commonwealth’s Superior Court brief raised Taylor. Additionally, counsel for both parties

discussed Taylor and its aftermath at length during oral argument.

17

Id. at 346.

Here, while Governor Brown left open the possibility that she might reverse

course on the moratorium, Governor Shapiro has stated in no uncertain terms that

he will never carry out a death sentence. Moreover, he has formally called upon the

General Assembly to abolish the death penalty in Pennsylvania once and for all.

Therefore, here, unlike in Taylor, no cautionary instruction or voir dire question

could ever persuade Mr. Zieglar’s jury that, if it voted to sentence him to death, the

sentence would “ultimately be carried out.” This is true even if the jury was

specifically instructed to disregard the moratorium and the governor’s public

proclamation in its deliberations.’

The import of Taylor does not end at this point, though. In 2022, with just

weeks left in office, Governor Brown commuted all death sentences to life

imprisonment without the possibility of parole.

http://www-npr.org/2022/12/15/1143002545/oregon-death-sentence-governor-kate-

brown (last visited September 19, 2024).4

Like Oregon, the laws of Pennsylvania empower Governor Shapiro to take

steps to commute every death row inmate’s sentence to life with no chance of parole.

3 Although the law presumes that the jury will follow a cautionary instruction issued by the trial

court, this presumption is not unassailable. In Bruton v. United States, 391 U.S. 123 (1968), this

Honorable Court recognized that “there are some instances where ‘the risk that the jury will not, or

cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that

the practical and human limitations of the jury system cannot be ignored.” 391 U.S. at 135. See

Eagle Pharms., Inc. v. Hospira, Inc., 424 F.Supp.3d 355, 361 (D. Del. 2019) (“There is no way to

unring a bell that has already rung.”).

4 Undersigned Counsel brought this up at oral argument before the Pennsylvania Superior Court.

18

Pa. Const. art. 4, § 9.5 Every prospective juror in a capital case in Pennsylvania

must be made aware of this extremely real possibility, particularly in light of the

moratorium and the governor’s public proclamation.

All this is to say, a capital jury in Pennsylvania simply cannot assume that a

sentence of death inevitably will be carried out.

D.

Unlike the Pennsylvania Superior Court, the trial court refused to disregard

the above, given that Mr. Zieglar’s constitutional rights and life were at stake. The

trial court also refused to ignore case law from this Honorable Court (as well as the

Pennsylvania Supreme Court) that directly impacted the matter.

In Caldwell v. Mississippi, supra, this Honorable Court invalidated a death

sentence because the sentencing jury was improperly led to believe that the

responsibility for determining the appropriateness of the death sentence rested

elsewhere (appellate courts). 472 U.S. at 341. “[T]he uncorrected suggestion that

the responsibility for any ultimate determination of death will rest with others

presents an intolerable danger that they jury will in fact choose to minimize the

importance of its role. Indeed, one can easily imagine that in a case in which the

jury is divided on the proper sentence, the presence of appellate review could

effectively be used as an argument for why those jurors who are reluctant to invoke

the death sentence should nevertheless give in.” Id. at 333. The Court concluded:

[T]his Court has described as “the principal concern” of our

jurisprudence regarding the death penalty, the “procedure by

which the State imposes the death sentence.” California v.

5 Undersigned Counsel mentioned this at oral argument as well.

19

Ramos, 463 U.S. [992,] 999 [(1983)]. In this case, the

prosecutor’s argument sought to give the jury a view of its role

in the capital sentencing procedure that was fundamentally

incompatible with the Eighth Amendment’s heightened “need

for reliability in the determination that death is the appropriate

punishment in a specific case.” Woodson v. North Carolina, 428

U.S. [280,] 305 [(1976)] (plurality opinion). Such comments, if

left uncorrected, might so affect the fundamental fairness of the

sentencing proceeding as to violate the Eighth Amendment.

This Court has always premised its capital punishment

decisions on the assumption that a capital sentencing jury

recognizes the gravity of its task and proceeds with the

appropriate awareness of its “truly awesome responsibility.” In

this case, the State sought to minimize the jury’s sense of

responsibility for determining the appropriateness of death.

Because we cannot say that this effort had no effect on the

sentencing decision, that decision does not meet the standard of

reliability that the Eighth Amendment requires. The sentence of

death must therefore be vacated.

Id. at 340-341 (brackets and bracketed text added).

In Commonwealth v. Baker, 511 A.2d 777 (Pa. 1986), the Pennsylvania

Supreme Court, relying on Caldwell, vacated a death sentence under the same set

of circumstances, explaining:

The Assistant District Attorney's comments to which

Appellant objects attempted to minimize the jury’s sense of

responsibility for a verdict of death and to minimize their

expectations that such a verdict would ever be carried out[.] ....

We conclude that the inherent bias and prejudice to Appellant

engendered by the Assistant District Attorney's remarks

necessitates reversal of the death sentence in the instant case,

and that under the circumstances said remarks also violated

Appellant’s rights under the Eighth Amendment of the United

States Constitution as set forth in Caldwell v. Mississippi,

supra, as well as violating Appellant’s rights under Article I, §

13, of the Constitution of the Commonwealth of Pennsylvania.

511 A.2d at 787-790 (unnecessary paragraphing omitted).

20

Finally, in Commonwealth v. Jasper, 737 A.2d 196 (Pa. 1999), the

Pennsylvania Supreme Court again set aside a sentence of death because the jury’s

sense of responsibility was minimized. 737 A.2d at 196. The trial court instructed

the jurors that they were not the final arbiter of the sentence, stating: “Now, with

regard to death penalty, you know what that implies. Somewhere down the line, if

you do impose the death penalty, the case will be reviewed thoroughly. And after

thorough review the death penalty may be carried out. I won't go into all the

various reviews that we have. That shouldn’t concern you at this point.” Id.

(citations omitted). Despite the inherently erroneous nature of this instruction, the

trial court correctly informed the jury three times that its determination was not

merely a recommendation, but that it was actually deciding the sentence that would

be imposed. Id. at 197. This Court held that the trial court’s additional instructions

did not cure the error, “for the plain import of the court’s remarks is that although

the jury may impose the death penalty, it may not be carried out, thus removing

from the jury the responsibility for imposing the death penalty.” Id. See

Commonwealth v. Montalvo, 205 A.3d 274 (Pa. 2019) (same).

E.

Although deemed “unpersuasive and premature” by the Pennsylvania

Superior Court, Zieglar, 322 A.3d at 268 n. 13, the trial court’s Rule 1925(a) opinion

more than adequately explained why a fair and impartial death-qualified jury

simply could not be impaneled in Mr. Zieglar’s case:

In this Court’s view, the prospective jury in this case, if it

were permitted to deliberate as to sentence, will have been

21

informed by Governor Shapiro’s proclamation that the

responsibility for any determination as to whether Defendant

will actually receive the death penalty has already been made by

a respected Pennsylvania legal authority who, the juror(s) may

perceive, has a greater right to make that determination.

Deliberating jurors who might be reluctant to vote for a death

sentence could nevertheless give in, knowing that Governor

Shapiro has already made the ultimate decision. The possibility

that the jury or any particular member of the jury might rely on

Governor Shapiro’s authority without opening acknowledging

that the Governor’s proclamation had an effect on the juror’s

decision, thereby causing a bias toward returning a death

sentence, is simply too great. To borrow from the Jasper Court:

[T]he plain import of the [Governor's

proclamation] is that although the jury may

impose the death penalty, it [will] not be

carried out, thus removing from the jury

responsibility for imposing the death

penalty.

The argument that a new governor with a different view

of the death penalty may be elected in four or eight years is of no

avail. The risk presented currently is that a capital case jury

deliberating as to sentence while Governor Shapiro is in office,

particularly at the beginning of his first term, may be influenced

by Governor Shapiro’s proclamation. The exact result forbidden

by Caldwell, Jasper, Baker, and Montalvo could occur if the jury,

having been improperly affected by the Governor’s proclamation,

returns a death sentence, the case proceeds through the appeal

process over a period of years during which a new governor is

elected and then the new governor signs the execution based on

the tainted death sentence.

This Court understands that this Opinion relies on a

degree of speculation as to how Governor Shapiro’s proclamation

might affect a capital case jury’s sentencing deliberations. That

same degree of speculation, in this Court’s view, was the

foundation for the holdings in Caldwell, Jasper, Baker, and

Montalvo. In all of those cases, the Supreme Court of the United

States and the Supreme Court of Pennsylvania invalidated

capital case jury death sentences without proof that improper

argument made by a prosecutor and/or improper and/or

inconsistent instructions given by a trial judge actually affected

22

the jury’s decision. All of the decisions in these cases were

premised on the presumption that the jury did not adequately

appreciate or understand the importance of its role in

sentencing because the defective comments and/or instructions

could have caused a minimization, in the mind of at least one

juror, of the jury’s sentencing function.!° This Court believes the

risk of minimization of the jury’s sentencing function in this case

is even greater since the Governor’s proclamation did not

announce the continuation of a moratorium (temporary halt)

but, instead, announced a total cessation of the carrying out of

the death penalty.

10 The jury’s having heard the improper

comments/instructions was enough to cause

the High Courts to overturn the death

sentences in those cases. Whether by design

or otherwise, Governor Shapiro’s

proclamation was delivered in a way to

ensure that citizens of Pennsylvania, the

pool from which jurors are chosen, were

made aware of his intentions as to how he

will exercise his ultimate authority in death

penalty cases.

Even were the jury to be instructed by the court to not let

the Governor’s proclamation affect their deliberations, a death

sentence verdict would still be subject to question. As has been

observed by the United States Supreme Court, and endorsed by

the Pennsylvania Supreme Court:

[T]here are some contexts in which the risk

that the jury will not, or cannot, follow

instructions is so great, and_ the

consequences of failure so vital to the

defendant, that the practical and human

limitations of the jury system cannot be

ignored.

See Commonwealth v. Rainey, 593 Pa. 67, 86 928 A.2d 215, 227

(2007), quoting, Bruton v. United States, 391 U.S. 123, 135-1386,

88 S.Ct 1620 (1968). This Court is of the view that no presentencing deliberation instruction given by this Court can

assure that the Governor’s proclamation will not cause a result

otherwise not reached by a capital case sentencing jury.

23

Requiring citizens to undergo the intensive and intrusive

process of death qualification and sentencing deliberations,

when the outcome has already been determined, is patently

unreasonable and fundamentally unfair. All juries should be

shown the same respect for their critically important role in all

parts of a trial, from impanelment through verdict. Instructing

jurors to ignore the public pronouncement of the highestranking executive officer in the Commonwealth, who has the

ultimate authority to carry out the death penalty, is unrealistic,

if not outright disingenuous.!!

11 In effect we are asking jurors to respect an

instruction that tells them to disregard the

fact the Governor Shapiro will not respect

their decision if it doesn’t align with his

personal sense of morality, regardless of its

legality.

Death is different.!2 All death sentences otherwise issued

in compliance with all legal requirements must be free from

doubt that even one member of the jury deferred to the authority

of the Governor in arriving at the decision to sentence another

person to death. Governor Shapiro’s proclamation, as it stands

currently, makes any death penalty sentence issued after the

date of the Governor’s proclamation suspect under the Eighth

Amendment of the United States Constitution and under Article

1, § 18 of the Constitution of the Commonwealth of

Pennsylvania.

12 Because “execution is the most

irremediable and unfathomable of

penalties...death is different.” Ford ov.

Wainwright, 477 U.S. 399, 411, 106 S.Ct.

2595 (1986).

(Trial Court’s Opinion, 6/28/2023, 18-21).

F.

As the above illustrates, the trial court was not oblivious to the Pennsylvania

Rules of Criminal Procedure or the Sentencing Code. Nor was it motivated by

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