Opposition — LESKO v. PENNSYLVANIA (Nos. 83-6266, 83-6260)

MAY 29

ALEXANDER L

CUERK

| -FILED

1964

STEVAS,

|

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No. 83-6266

JOHN CHARLES LESKO, Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA and

LeROY S. ZIMMERMAN, ATTORNEY GENERAL

OF PENNSYLVANIA, Respondents

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

JOHN J. DRISCOLL. District Attorney

201 Courthouse Square

Greensburg, PA 15601

(412) 834-2191, Ext. 3665

*TIMOTHY J. GEARY, Esquire

158 Grant Avenue

Vandergrift, PA 15690

(412) 568-3694

*Special Counsel to District Attorney

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Case Cited: Page:

Lockett v. Ohio, 438 U.S. 586 (1977)............ hie Ce

Patterson v. New York, 423 U.S. 198, 53 L.Ed.2d

38 ECLSTI) SMa kas oe ae ke Ca CeCe CTT eee 7

Roberts v. Louisiana, 428 U.S. 906, 49 L.Ed.2d

1213, 96 §.Ct. 3214 reh. den. 429 U.S.

890, 50 L.Ed.2d 174, 97 S.Ct. 248 (1976)......... 6

Roberts v. Louisiana, 431 U.S. 633, 52 L.Ed.2d 637,

OF SiGks LOE CARTED a ccc ives avs butane eusenys 6

Woodson v. North Carolina, 428 U.S. 280,

SF L.86.20 948, 96 S.Ct. 29768 (1976)... ccecceces 6

Keith Zettlemoyer v. The Commonwea’th of

PORMOVILVEREE, SE°CSE8 ccs rye cunes vee ee sess Os ot e¥s 6

Statute Cited:

42 Pa. C.S.A. $9711... eee eee Ke Rakes he ee s.0 Sane ewe 2

wits

t

So

COUNTER-STATEMENT OF ISSUES

SYMPATHY IS NOT A MITIGATING FACTOR UNDER THE

PENNSYLVANIA DEATH PENALTY STATUTE NOR DOES

LOCKETT V. OHIO, 438 U.S. 586 REQUIRE OR EVEN

SUGGEST SUCH A RESULT.

NEITHER THE REQUIREMENT THAT THE DEFENDANT PROVE

MITIGATING CIRCUMSTANCES BY A PREPONDERANCE OF

THE EVIDENCE NOR THE REQUIREMENT THAT THE JURY

MUST SENTENCE THE DEFENDANT TO DEATH UPON A FINDING

OF ONE AGGRAVATING CIRCUMSTANCE ANN NO MITIGATING

CIRCUMSTANCES IS IN VIOLATION OF LOCKETT V. OHIO,

438 U.S. 586 (1977).

# SYMPATHY IS NOT A MITIGATING FACTOR UNDER THE

PENNSYLVANIA DEATH PENALTY STATUTE NOR DOES

LOCKETT V. OHIO, 438 U.S. 5&6 REQUIRE OR EVEN

SUGGEST SUCH A RESULT.

The defendant has redefined sympathy to be a

mitigating factor which it is not. (See 42 Pa. C.S.A.

§9711). At no time did the prosecutor or the trial court

allude to Lesko's evidence about his troubled vouth when they

refered to sympathy. Clearly the evidence offered by Lesko that

(1) he had never known a person he

could call father [N.T. 1653];

(2) when he was about five years old,

some older kids set him on fire

[N.T. 1652], and;

(3) “he lived in hell from day one"

[N.T. 1649).

was an attempt to establish the existance of mitigating factor

No. 8 under the Pennsylvania Death Penalty Statute viz.

any other evidence of mitigation concerning the character

and record of the defendant and the circumstances of his offense.

See Pa. C.S.A. §9711. This is required by Lockett v. Ohio,

438 U.S. 586 (1977).

The trial court's charge about sympathy

Your decision should not he based on

sympathy, because sympathy could

improperly sway you into one decision

-- into a decision imposing the

death sentence, or could improperly

sway you against the decision imposing

the death sentence. .. . Sympathy

is not an aggravating circumstance;

it is not a mitigating circumstance.

[N.T. 1706].

and the reference in prosecutor's closing argument about

sympathy

"But I have a problem. Each one of

you promised me, promised the judge,

Mrs. Ambrose, Mr. Bertani, Mr.

McCormick, Mr. Marsh and the defen-

dants, when we started, that you would

follow the law. You all promised

that you wouldn't become a social

activist. But I can't stop that.

I can't stop you from walking out into

that deliberation room after the

judge charges you and saying to

yourself, The Commonwealth has

proved one or more agrravating,

circumstances, and there's no

oie

mitigating circumstances here at

all, and the law savs I must find

these defendants and sentence them

to death, but I won't do that, because

I feel sympathy. And I also can't

stop you from saying, well, I found

one or more aggravating circumstances

that have been proven beyond a reasonable

doubt, and alttough I found mitiga-

ting circumstances, the agrravating

circumstances outweigh them, and

the law says that I must return a

death penalty, but I won't, I'm

going to show sympathy. I just

can't stop you from doing that.”

[N.T. 1701]

were designed to take out of the case what the defendants

had improperly put into it. This was a joint trial and both

the defendant (John Charles Lesko) and his co-defendant

(Michael Jay Travaglia) had been found guilty of murder in the

first degree and the jury was hearing evidence in both cases.

Specifically the defendants themselves had attempted to

cloud the issues by the following: Bernard Travaglia and

Judith Travaglia, the parents of the co-defendant Michael Jay

Travaglia both testified [N.T. 1594-1597] and both cried and

sobbed in front of the jury; the final statement from Mrs.

Travaglia being ". . . He's my son. I don't want him to die."

{[N.T. 1597] Mrs. Travaglia was extremely emotional, almost

hysterical, at this point and that fact is reflected in the

prosecutor's closing argument:

"You saw something vesterday afternoon

which visibly shook every one of you.

And if it hadn't, would have surprised

me. And I feel that every one of you

were filled with compassion. I

was. But you're not here to decide

this issue on sympathy. Sympathy is

not a mitigating circumstance. When

you think about sympathy, you have

to feel and know that there are other

people whose hearts have been

heavy for a long time, since January

3, 1980. Consider the law, consider

the evidence, and make a decision.

(N.T. 1690).

__Also the defendant's closing arguments made reference

to subjects that were not part of the jury's function as

did the closing argument of his co-defendant. Both of these

closing arguments relied on two basic premises: (1) the

mm

death penalty is inherently wrong and (2) the arousal of

the jury's sympathy by inflamming them as to the nature of the

death penalty as it is carried out:

EG. Defendant Lesko's Closing:

‘ It's a death that is planned

by the state for months, and its the

kind of death that the conderned

man waits for months to endure.

Usually in terror. . ." [N.T. at 1665)

". . . And consider, with your

knowledge of history, whether or not

the death penalty was an instrument

for the cure, the alleged cure of

the social ills of the time

which were many. That is expediency,

not the law. .. " (emphasis

added) [N.T. at 1666]

Lal

Now, something else cured

those social ills of the seventeenth

and eighteenth centuries; it was

not the death sentence. =

[N.T. at 1667]

ue ee if you return a verdict of

death against John, you'll be saying

the equivalent that we don't buy

the doctrine that there is some

good in every one of us that should

be preserved, and if there is some

good in someone it shouldn't make

any difference. .." [N.T. at 1672]

Defendant Travaglia's Closing:

". . . If the killing of Michael

Travaglia can bring back those

people, then there would be a

legitimate reason for killing

Michael Travaglia. .." [N.T. at

1677}

% . two wrongs don't make a right

" [N.T.at 1697)

wrvak” other states don't have a

death penalty - have they found out

something more than we know. .

[N.T. at 1680]

*. . . Chom shelt not REIL... *

[N.T. at 1683]

: some glorious day we re

going to take Ifichael Travaglia

out, and we're going to shave his

head, we're going to put grease

on his arms, we're going to strap

him into an electric chair, and

we're going to send all those wolts

through his body until his feet split

open and his fingers split opem, and

he dies, and he's electrocuted.

{u.T. at 1678)

elke

The testimony set forth above and the defendants" closing

arguments were designed to arouse sympathy not to prove

a mitigating circumstance. They have nothing, whatsoever to

do with the character and record of the defendant nor the

circumstances of his offense. This evidence of mitigation

was offered and admitted into evidence and was not short-

circuited in any way by the court's instruction concerning

sympathy. The Petition for Certiorari should be denied.

Il. NEITHER THE REQUIREMENT THAT THE DEFENDANT PROVE

MITIGATING CIRCUMSTANCES BY A PREPONDERANCE OF

THE EVIDENCE NOR THE REQUIREMENT THAT THE JURY

MUST SENTENCE THE DEFENDANT TO DEATH UPON A FINDING

OF ONE AGGRAVATING CIRCUMSTANCE AND NO MITIGATING

CIRCUMSTANCES IS IN VIOLATION OF LOCKETT V. OHIO,

438 U.S. 586 (1977).

a.) The specific issue raised by the defendant

was addressed by the Supreme Court of the United States in the

case of Keith Zettlemoyer v. The Commonwealth of Pennsylvania,

82-6514 and on May 31, 1983 the Court denied Certiorari.

b.) The Pennsylvania Death Penalty Statute 42 Pa.

C.S.A. §9711 does require that the jury's "verdict must be

a sentence of death if the jury unanimously finds at least

one aggravating circumstance. .. and no mitigating circum-

stances, or one or more aggravating circumstances which

outweigh any mitigating circumstances". This is clearly a

mandatory rule, but it in no way prevents the jury from giving

independent mitigating weight to @pects of the defendant's

character and record and to circumstances of the offense

offered in mitigation. Lockett v. Ohio, 438 U.S. 586,

57 LEd.2d 973 98 S.Ct. 2954 (1978). The Court in Lockett v.

Ohic, supra. found the Ohio Death Penalty Statute infirm

under the Eighth and Fourteenth Amendments of the Federal

Constitution because the Ohio Statute did not permit evidence

relative to the defendant's character and record, and to

circumstances of the offense (e.g. the fact that the

defendant's participation in the homicidal act was relatively

minor) unless they were in some way directly related to one of

three enumerated mitigating circumstances. Lockett v. Ohio,

at 438 U.S. 608. All of the cases cited by the defendant involved

situations where mandatory death penalty statutes have been

stricken down by the Supreme Court. Woodson v. North Carolina,

428 U.S. 280, 49 L.Ed.2d 944, 96 S.Ct. 2978 (1976); Roberts v.

Lousiana, 428 U.S. 906, 49 L.Ed.2d 1213, 96 S.Ct. 3214 reh.

den. 429 U.S. 890, 50 L.Ed.2d 174, 97 S.Ct. 248 (1976);

Roberts v. Louisiana, 431 U.S. 633, 52 L.Ed.2d 637, 97 S.Ct.

a

1993 (1977). Each of the Statutes set forth in the cases

cited above merely define a specific crime or crimes and then

made the death sentence mandatory. These statutes did not

provide any standards or guidelines for the jury to follow in

arriving at a proper sentence. There is no case which says

any mandatory death sentence is unconstitutional, certainly

Lockett v. Ohio, supra., does not so hold.

It is the province of the Legislature to determine

what circumstances may be considered in mitigation during a

sentencing hearing. Patterson v. New York, 423 U.S. 198,

53 L.Ed.2d 284 (1977); Lockett v. Ohio, supra. In Pennsylvania,

the Legislature has set forth in detail various mitigating

factors and it is these factors which make the Pennsvlvania

death penalty statute entirely different from those statutes

which have been declared unconstitutional. The challenged

Pennsylvania statute lists the following mitigating circum-

stances:

1. The defendant has no significant history

of prior criminal convictions.

2. The defendant was under the influence

of extreme mental or emotional

disturbance.

3. The capacity of the defendant to

appreciate the criminality of his

conduct or to conform his conduct to

the requirements of the law was

substantially impaired.

4. The age of the defendant at the time

of the crime.

5. The defendant acted under extreme duress,

although not such duress as to constitute

a defense to prosecution under §309

(relating to duress), or acted under the

substantial domination of another person.

6. The victim was a participant in the

defendant's homicidal conduct or

consented to the homicidal acts.

7. The defendant's participation in the

homicidal acts was relatively minor.

8. Any other evidence of mitigation concerning

the character and record of the defendant

in circumstances of his offense. See 42

Pa..€.3.a. 997i.

- =

"Not only does the Pennsylvania statute permit the

jury to consider circumstances of the type which the Ohio

statute made no provision for, (see Lockett, supra.) the

Pennsylvania statute leaves within the sole province of the

jury the weight to be given the mitigating circumstances,

once they have been offered by the defendant. A Pennsylvania

jury cannot impose the death sentence without first considering

the aggravating and mitigating circumstances, including those

which relate to the character and record of the defendant and

the circumstances of the offense in question. Even more

important, a Pennsylvania jury cannot impose a death sentence

even under the mandatory aspects of the Pennsylvania statute

without first finding that there were no mitigating circum-

stances. No death penalty statute similar to the current

Pennsylvania statute has ever been determined to be violative

of either the Eighth or Fourteenth Amendments of the Federal

Constitution or the Pennsylvania Constitution, nor does the

defendant cite any case so holding.

CONCLUSION

istrict Attorney

Westmoreland County

TIMOTHY

a ee ee.

Special