# Appendix — Rompilla v. Beard

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0111%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 374

## Text

NO. oY -S¥Oe

IN THE SUPREME COURT OF THE UNITED STATES

RONALD ROMPILLA,
Petitioner,
Vv.
MARTIN HORN, Commissioner, Pennsylvania Department of Corrections,

Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Third Circuit

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

BILLY H. NOLAS, ESQ.

Assistant Federal Defender

MAUREEN KEARNEY ROWLEY, ESQ.
Chief Federal Defender

Defender Association of Philadelphia
Federal Court Division

The Curtis Center — Suite 545 West
Independence Square West

Philadelphia, PA 19106

(215) 928-0520

Counsel for Petitioner, Ronald Rompilla

Dated: July 23, 2004

653 A.2d 626
(Cite as: 539 Pa: 499, 653 A.2d 626)
>

Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee,
.

Ronald ROMPILLA, Appellant.

Argued Oct. 20, 1994.
Decided Jan. 23. 1995.

Defendant was convicted in the Common Pleas
Court, Lehigh County, Criminal Division, No. 682 of
1988, David E. Mellenberg, J.. of murder in the first
degree, burglary, criminal trespass, robbery, theft,
and receiving stolen property and was sentenced to
death, and he appealed. The Supreme Court, No. 53
Capital Appeal Docket. Nix, C.J., held that: (1)
evidence supported conviction for first-degree
murder, and (2) during sentencing phase,
Commonwealth's reading of rape victim's testimony
that, after defendant stole money, he raped victim at
kmifepoimt was necessary to support aggravating
circumstance that defendant had significant history of
felony convictions involving use of violence to the
person.

Affirmed
West Headnotes

{1} Criminal Law @= 1 134(3)
110k1134(3)

Supreme Court would not specifically address any of
the issues raised in capital murder defendant's pro se
bnef which was appended to his counsel's brief and
which focused on sufficiency of the evidence and mal
counsels’ ineffectiveness because Court was obligated
to undertake independent review of sufficiency of the
evidence supporting defendant's conviction and
because defendant was free to raise ineffectiveness of
any of his prior counsel! in a subsequent proceeding.

{2} Criminal Law @= 1134(3)
110k1134(3)

Although capital murder defendant did not
specifically challenge sufficiency of the evidence
supporting his conviction, Supreme Court would
nevertheless undertake such review.

[3] Crumnal Law @= 1 144.13(3)
110k1144.13(3)

Page 1

[3] Criminal Law @> 1159.2(7)
110k1159.2(7)

In reviewing sufiiciency of the evidence, Supreme
Court must view evidence and all reasonable
inferences derived therefrom in light most favorable
to Commonwealth as verdict winner, to determine
whether all elements of offense have been established
beyond reasonable doubt.

[4] Homicide C1184
203k1184
(Formerly 203k234(11))

[4] Homicide G 1187
203k1187
(Formerly 203k234(11))

Evidence supported defendant's conviction for first-
degree murder; in paying for motel room, defendant
paid $121 in cash and flashed large amount of cash,
defendant used false name when he checked in,
defendant's sneakers matched footprint in blood that
was discovered near victim's body, blood found on
sneakers matched victim's blood type, victim's wallet
was found in bushes outside defendant's motel room,
defendant's fingerprint was found on one of the
knives used to commit murder, and there were
numerous inconsistencies between what defendant
had told police concerning his activities on the nights
in question and testimony of other witnesses.

[5] Criminal Law @438(5.1)
110k438(5.1)

In determining admissibility of photograph of corpse
in homicide trial, court must determine whether
photograph is inflammatory and, if not, photograph
may be admitted if it has relevance and can assist
jury's understanding of the facts; if photograph is
inflammatory, court must decide whether photograph
is of such essential evidentiary value that its need
clearly outweighs likelihood of inflaming minds and
passions of jurors.

[6] Criminal Law @438(5.1)
110k438(5.1)

Photograph showing body of victim lying face down
behind his bar among a number of broken bottles was
not inflammatory so as to preclude its admissibility in
homicide trial; distance from body and angle from
which photograph was taken tended to diminish

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653 A.2d 626
(Cite as: 539 Pa. 499, 653 A.2d 626)

inflammatory nature of the subject matter and number
of broken bottles surrounding victim made it difficult,
if not impossible, to discern whether substance beside
victim was alcohol or blood.

[7] Criminal Law @438(6)
110k438(6)

Photograph showing body of victim lying face down
behind his bar among a number of broken bottles was
admissible in homicide trial based on its evidentiary
value, even if photograph was inflammatory;
photograph was introduced by the Commonwealth to
demonstrate the state of disarray of the bar and
severity of struggle between victim and his attacker.

[8] Criminal Law @823(16)
110k823(16)

In first-degree murder prosecution, any error which
might have resulted from trial court's instruction on
accomplice liability was cured by its subsequent
admonition to jury that it should not consider such a
theory because there was no evidence presented

during trial to support such a finding. 18 Pa.C.S.A. §
306.

[9] Criminal Law @=863(1)
110k863(1)

In first-degree murder prosecution, trial court's denial
of defendant's request that culpability portion of
accomplice liability statute be read to jury was well
within court's discretion because jury had been
specifically instructed that it was not to consider
accomplice liability in its deliberations. 18 Pa.C.S.A.
§ 306.

[10] Criminal Law @641.13(1)
110k641.13(1)

Counsel can never be considered ineffective for
failing to raise meritless claim. U.S.C.A.
Const.Amend. 6.

[11] Criminal Law @641.13(6)
110k641.13(6)
Objections.

Defense counsel was not ineffective for failing to file
request for bill of particulars so that defense counsel
could limit Commonwealth to the single theory that
defendant was the actor and not accomplice because
Commonwealth never asserted or attempted to prove

Page 2

that defendant's role in murder and robbery was
anything other than that of the actor, US.C.A.
Const.Amend. 6.

[12] Criminal Law @=874
110k874

Trial court did not err when it refused to poll jurors in
order to ascertain whether defendant was convicted as
an accomplice or actor since trial judge clearly and
adequately explained to jury that there was no
evidence offered to prove that defendant acted as
accomplice and that it should not inject such
considerations into its deliberations.

[13] Searches and Seizures 113.1
349k113.1

In determining validity of search warrant,
Pennsylvania Supreme Court follows totality of the
circumstances test articulated by United States
Supreme Court in //linois v. Gates.

[14] Searches and Seizures @ 113.1
349k113.1

Finding of probability of criminal activity 1s sufficient
to support probable cause requirement of search
warrant; prima facie showing of such activity is not
required.

[15] Searches and Seizures @> 114
349k114

Probable cause existed to support search warrant
executed on defendant's hotel room; detective
sergeant observed bloody footprint tread near
location of victim's body which pattern of tread was
recognized to be similar to the one on sneakers worn
by defendant when police officer had interviewed him
and defendant had checked into hotel room sought to
be searched by using fictitious name at time when
defendant had told police that he was at a different
location.

[16] Sentencing and Punishment = 1762
350Hk1762
(Formerly 203k357(5))

During capital sentencing phase of first-degree
murder prosecution, Commonwealth's reading of rape
victim's testimony that defendant raped victim at
knifepoint after stealing money was necessary to
support aggravating circumstance that defendant had

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653 A.2d 626
(Cite as: 539 Pa. 499, 653 A.2d 626)

significant history of felony convictions involving use
of violence to the person: rape conviction was the
only felony for which defendant was convicted that
clearly involved use of violence; in order to show
that threat of violence was used in commission of
burglary so as to establish a felony history, rape
victim's testimony was read into the record because
burglary was part of the same episode; and by having
assistant district attorney read from transcript.
Commonwealth presented facts of defendant's prior
crime in way that minimized inflammatory impact of
his prior crimes to jury. 42 Pa.C.S.A. § 9711(d)(9).

[17] Sentencing and Punishment @> 1788(5)
350HK1788(5)
(Formerly 110k1208.1(6))

In death penalty case, it 1s Supreme Court's statutory
duty to insure that jury's sentence 1s based upon facts
presented at sentencing-hearing. 42 PaCS.A. §
9711(h).

[18] Sentencing and Punishment © 1681
3S0Hk1681
(Formerly 203k357(7))

In first-degree murder prosecution, evidence dunng
the sentencing phase supported jury's finding of
aggravating circumstance that defendant commutted
killing while in perpetraton of a felony; defendant
killed his victum during commission of burglary and
robbery of victim's tavern. 42 Pa.C.S.A. § 9711(d)(6)

[19] Sentencing and Punishment C= 1684
350Hk1684
(Formerly 203k357(11))

In capital murder prosecution, evidence during the
sentencing phase supported jury's finding of
aggravating circumstance that offense was committed
by means of torture: forensic pathologist testified
that victim was alive during infliction of almost all of
the injuries that he received, which included multiple
stab wounds. and number and location of wounds on
victum's body were indicative of injuries that were
inflicted with intent of causing pain. 42 Pa.C.S.A. §
9711(d 8)

[20] Sentencing and Punishment @= 1705
350Hk1705
(Formerly 203k357(5))

In first-degree murder prosecution, evidence during

Page 3

the sentencing phase supported jury's finding of
aggravating circumstance that defendant had
significant history of felony convictions involving use
of violence to the person; in addition to rape
conviction, defendant had been convicted of burglary
in which he brandished and used knife to harm
victim. 42 Pa.C.S.A. § 9711(d)(9).

**628 *503 Albert V.F. Nelthropp, for R. Rompilla.

Robert Steinnberg, Douglas G. Reichley, for Com.
Robert A. Graci, for Atty. General's Office.

Before NIX, C.J.. and FLAHERTY, ZAPPALA,
PAPADAKOS, CAPPY, CASTILLE and
MONTEMURO, JJ.

*§04 OPINION
NIX, Chief Justice.

This is an automatic appeal [FN1] from the
imposition of a death sentence following a trial by
jury in the Court of Common Pleas of Lehigh County.
Appellant, Ronald Rompilla, was convicted of
murder of the first degree, [FN2] burglary, [FN3]
criminal trespass, [FN4] robbery, [FNS] two counts
of theft, [FN6] and two counts of receiving stolen
property. [FN7] Pursuant to 42 PaCS. §
9711(c\1\iv), the jury sentenced Appellant to death
on November 1, 1988, after it found three aggravating
circumstances which outweighed the one mitigating
circumstance presented by Appellant.

FN1. 42 PaCS. § 971 1(h)\(1).

FN2. 18 Pa.C.S. § 2502(a).

FN3. 18 Pa.C.S. § 3502(a).

FN4. 18 PaCS. § 350MaK 10).

FNS. 18 PaCS. § 3701(aX1 Ki).

FN6. 18 PaCS. § 3921(a).

FN7. 18 PaCS. § 3925(a).
{1}{2}{3] Although Appellant has not specifically
challenged the sufficiency of the evidence supporting
his conviction, we will nevertheless undertake such a
review in accordance with the standard set forth in

Commonwealth **629 v. Zettlemoyer, 500 Pa. 16,
26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert

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653 A.2d 626
(Cite as: 539 Pa. 499, *504, 653 A.2d 626, **629 )

denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d
1327 (1983). [FN8] In *S05 reviewing the
sufficiency of the evidence, we must view the
evidence and all reasonable inferences derived
therefrom in the light most favorable to the
Commonwealth as verdict winner, to determine
whether all the elements of the offense have been
established beyond a _ reasonable doubt.
Commonwealth v. Carpenter, 511 Pa. 429, 435, 515
A.2d 531, 533-34 (1986).

FN8. Appellant has apparently had a
contentious history with court-appointed
counsel during his trial and appeal.
Appellant's discontent with his attorneys
has caused him to file a number of pro se
motions and briefs in addition to those filed
by court-appointed counsel. Present
counsel has appended to the Brief for
Appellant what is represented to be
Appellant's own brief alleging other issues
not included in counsel's brief. This
appended brief authored by Appellant is
addressed to the trial court and is intended
to be a supplemental brief in support of
Appellant's post-trial motions.
This Court recently addressed the issue of
an appellant's right to file pro se
supplemental briefs while that appellant is
by counsel. In Commonwealth
v. Rogers, 537 Pa. 581, 645 A.2d 223
(1994), we held that although an appellant
has a clear right to terminate representation
prior to the filing of an appeal, there is no
concomitant right to file a separate pro se
brief once appellate counsel has filed briefs.
Id. at 583-84, 645 A.2d at 224. Thus, we
refused to allow the appellant in Rogers to
terminate appellate counsel and proceed pro
se on amended and supplemented briefs
once counsel had filed briefs. It was our
belief that the appellant would "confuse and
overburden the court by his own pro se
filing of briefs at the same time his counsel
is filing briefs on his behalf." /d (quoting
Commonwealth v. Ellis, 534 Pa 176,
183-84, 626 Add 1137, L141 (1993)
(emphasis omuitted)). A review of the issues
raised in Appellant's pro se brief reveals
that Appellant's claims are focused on the
sufficiency of the evidence and trial
counsels’ ineffectiveness. As noted above,
we are obligated to undertake an
independent review of the sufficiency of the
evidence supporting Appellant's conviction.
We also hasten to point out that Appellant is
free to raise the ineffectiveness of any of his
prior counsel in a subsequent proceeding
Accordingly, we will not specifically

Page 4

address any of the issues raised in
Appellant's pro se brief.

In the early morning hours of January 14, 1988, the
victim, James Scanlon, was murdered in his bar, the
Cozy Corner Cafe, located in Allentown,
Pennsylvania. At approximately 6:30 a.m. on that
same morning, the victim's son discovered the body
of his father lying behind the bar in a pool of blood.
The victim had been stabbed repeatedly and set on
fire. The victim's wallet had been stolen and
approximately $500 to $1,000 had been stolen from
the bar.

The Commonwealth's case consisted almost entirely
of circumstantial evidence as there were no
eyewitnesses to this killing Appellant was seen in
the Cozy Corner Cafe on January 14, 1988, from
approximately 1:00 a.m. to 2:00 a.m During that
time, he was observed going to the bathroom
approximately ten times. A subsequent police
investigation determined that the window in the men’s
bathroom was used as the point of entry into the bar
after it had closed.

When questioned by an investigating detective from
the Allentown Police Department, Appellant stated
that he had been in the Cozy Corner Cafe on the night
of the murder and *506 left between 2:00 a.m. and
2:30 a.m. because he had no money. He stated that
he had only $2.00 to buy breakfast at a local diner.
A cab driver testified that he picked up Appellant at
the diner and drove him to two different hotels where
Appellant was unable to rent a room. The driver then
took Appellant to the George Washington Motor
Lodge where he was able to rent a room. Appellant
paid the cab fare of $9.10.

[4] Appellant rented a room for two nights at the
George Washington Motor Lodge. In doing so, he
paid $121.00 in cash and flashed a large amount of
cash to the desk clerks. Appellant also used a false
name when he checked in.

The police secured a search warrant for Appellant's
motel room and seized several items, including
Appellant's sneakers. These sneakers matched a
footprint in blood that was discovered near the
victim's body. In addition, the blood found on the
sneakers matched the victim's blood type.

The Commonwealth also presented other
curcumstannal evidence that linked Appellant with the
robbery and murder of James Scanlon. First, Mr.

Copr. © West 2004 No Claim to Orig. U.S. Govt. Works

653 A.2d 626
(Cite as: 539 Pa. 499, *506, 653 A.2d 626, **629)

Scanlon's wallet was found by a groundskeeper in the

bushes, six to eight feet outside the room that
Appellant **630 had rented at the George
Washington Motor Lodge. Second, Appellant's
fingerprint was found on one of the two knives that
was used to commut the murder. Finally, there were
numerous inconsistencies between what Appellant
had told police concerning his activities on January
14 and 15, 1988, and the testimony of other
witnesses.

When viewed in the light most favorable to the
Commonwealth as verdict winner, the evidence
clearly supports Appellant's conviction for first
degree murder. Accordingly, we will now proceed to
address Appellant's seven allegations of error relating
to the tal underlying his convictron and sentence.

— Appellant first contends that the tnal court erred in
allowing the Commonwealth to introduce a
photograph of the victim in this case. The
photograph in question, Commonwealth's Exhibit
Number 5. shows the body of the victim lying face
down behind the bar among a number of broken
bottles. Appellant argues that the inflammatory nature
of this photograph*S07 outweighs any evidentiary
value that 1 may have had) The Commonwealth
responds that the photograph 1s not inflammatory, and
even if this Court were to find otherwise, its
introducnhon was necessary to capture the disarray of
the bar and to show the severity of the struggle
between the victim and Appellant.

[5] “We have consistently held that the question of
admussibility of photographs in homucide cases is a
matter within the discretion of the tnal judge, and
only an abuse of that discretion will constitute
reversible error." Commonwealth v. Duffey. 519 Pa.
348. 359, 548 A.2d 1178, 1183 (1988) (citing
Commonwealth v Petrakovich. 459 Pa. 511, 329
A.2d 844 (1974). Commonwealth v Woods. 454 Pa.
250, 311 A.2d S82 (1973)). In determining the
admussibility of photographs of a corpse in a
hormecide tnal. this Court utilizes a two-part analysis.
Commonwealth v. Chester, 526 Pa. 578, 591, 587
A.2d 1367, 1373, cert denied, 502 U.S. 849, 112
S.Ct. 1§2, 116 L.Ed.2d 117 (1991)
First a court must determine whether the
photograph is inflammatory. If not, it may be
admutted if has relevance and can assist the
jury's understanding of the facts If the
photograph 1s inflammatory, the trial court must
decide whether or not the photographs are of such
essential evidentiary value that their need clearly

Page 5

outweighs the likelihood of inflamung the minds
and passions of the jurors.
Id. $26 Pa. at 591-92, $87 A.2d at 1373-74 (citation
omutted).

[6] Based on our review of the photograph, we find
that, although unpleasant, it does not rise to the level
of what we consider to be inflammatory. The
distance from the body and the angle from which the
photograph was taken tend to diminish the
inflammatory nature of the subject matter.
Moreover, the number of broken bottles surrounding
the victim makes it difficult, if not impossible, to
discern whether the substance beside the victim is
alcohol or blood.

[7] In addition, we agree with the Commonwealth
and the en banc trial court that even if we were to find
the photograph inflammatory, it would still be
admussible based on its evidentiary *508 value. The
photograph was introduced by the Commonwealth to
demonstrate the state of disarray of the bar and the
severity of the struggle between the victim and his
attacker. Accordingly, we conclude that the trial
judge did not abuse his discretion in admitting this
photograph into evidence.

Appellant next argues that the trial court erred in
answering the jury's question regarding accomplice
hability. Shortly after deliberations began, the jury
presented a note to the court in which it asked the
following: “If Defendant was an accomplice to the
Charge of CnntinattHomucide, can he be charged with
Murder in the First Degree?" (N.T. 10/31/88, 166).
In response, the trial judge read 18 Pa.C.S. § 306(a),
which defines the general rule for liability for conduct
of another, [FN9] and briefly explained the concept
of complicity to the jury. (N.T. 10/31/88, 167-68).
The trial judge then cautioned the jury:

FN9. 18 PaCS. § 306(a) provides that "[a]
person is guilty of an offense if i is
committed by his own conduct or by the

a conduct of another »erson for which he is
legally accountable, or both.”

I can only say this to you, that you should
determine this case based on the Charge of **631
the Court as it had given [sic] you originally.
There was no evidence in this case with regard to
the question as posed but a sunple clear answer to
the question is yes, you could be charged with,
and you could be convicted of Murder in the First
Degree if, indeed, you're an accomplice, but it
requires other proof or findings on your part that

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7

653 A.2d 626
(Cite as: 539 Pa. 499, *508, 653 A.2d 626, **631)

were not apart [sic] of this case nor were they
made a part of this case....

(N.T. 10/31/88, 168-69). Appellant argues that by
being instructed on an accomplice theory and then
being told to disregard it, the jury might have been
confused and convicted Appellant as an accomplice.

[8] Appellant's claim is analogous to an issue that
this Court addressed in Commonwealth v. Edwards,
521 Pa. 134, 555 A.2d 818 (1989). In Edwards, the
jury asked the trial judge whether it had the option to
condition a verdict of life imprisonment on the
defendant's ineligibility for parole. In his initial
response to the jury, the trial judge deviated from
*509 the standard that we had previously prescribed
when the jury asked such a question. We concluded
that despite this error, the curative instruction and
proper charge that were subsequently given were
sufficient to leave the jury's death sentence
undisturbed. /d at 158-59, 555 A.2d at 830-31.
Likewise in the instant case, we are satisfied that any
error which might have resulted from the tnal judge's
instruction on accomplice liability was cured by the
subsequent admonition to the jury that it should not
consider such a theory because there was no evidence
presented during trial to support such a finding.

[9] Additionally, we reyect Appellant's argument that
the trial court erred in failing to grant defense
counsel's request that the culpability portion of
section 306 be read to the jury. As noted above, the
jury was specifically instructed that it was not to
consider accomplice liability in its deliberations.
Therefore, the denial of Appellant's request was weil
within the trial judge's discretion. See
Commonwealth v. Perkins, 473 Pa. 116, 132, 373
A.2d 1076, 1084 (1977) ("when the court provides
supplemental instructions at the jury's request, it may
confine those instructions to the particular questions
asked by the jury, even though requested by the
defendant to give yet additional instructions").

[10}{11] Appellant next contends that trial counsel
was ineffective for failing to file a request for a bill of
particulars. By requesting a bill of particulars,
Appellant argues that defense counsel could have
limited the Commonwealth to the single theory that
Appellant was the actor and not an accomplice. “A
bill of particulars is intended to give notice to the
accused of the offenses charged in the indictment so
that he may prepare a defense, avoid a surprise, or
intelligently raise pleas of double jeopardy and the
statute of limitations." Commonwealth v. Chambers.
528 Pa. 558, 580, 599 A.2d 630, 641 (1991), cert.

Page 6

denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d
214 (1992). In the instant case, the Commonwealth
never asserted nor attempted to prove that Appellant's
role in the murder and robbery was anything other
than that of the actor. ~ *510 Thus, Appellant's
argument is plainly without merit. Because counsel
can never be considered ineffective for failing to raise
a meritless claim, Appellant's claim of ineffectiveness
must be rejected. See Commonwealth v. Pettus, 492
Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

[12] In a related argument, Appellant contends that
the trial court erred in refusing his request to poll the
jury in order to ascertain whether he was convicted as
an accomplice or actor. The record indicates that the
jury was polled as to their individual verdicts, but the
trial judge refused to question each juror as to
whether they found Appellant guilty as an actor or
accomplice. (N.T. 11/1/88, 5-7). Appellant again
relies on the erroneous premise that the jury failed to
heed the trial court's warning that it was not to
“tonsider an accomplice theory of liability. Our
review of the record satisfies us that the trial judge
clearly and adequately explained to the jury that there
was no evidence offered to prove that Appellant acted
as an accomplice and that it should not inject such
considerations into its deliberations.
The purpose of the poll is to give any juror, who
may possibly have been under **632 pressure
from other members of the jury to acquiesce in
the verdict, an opportunity to speak out and
declare to the court that the verdict as announced
by the foreman was not voluntarily joined in by
Commonwealth ex rel. Ryan v Banmiller, 400 Pa.
326, 328, 162 A.2d 354, 355, cert. denied, 364 US.
852, 81 S.Ct. 99, 5 L.Ed.2d 76 (1960). In the instant
case, Appellant has not alleged lack of unanimity of
the verdict or that it was the product of undue
pressure placed on one or more of the jurors.
Accordingly, we conclude that the trial court did not
err when it refused to poll the jurors on the theory
upon which they convicted Appellant.

In his next allegation of error, Appellant asserts that
the search warrant used to obtain evidence to link him
to the crime was not supported by probable cause.
The en banc *S11 Court of Common Pleas
considered Appellant's challenge to the search
warrant and found that
[t}he affidavit in the present case, sworn to by a
detective sergeant of the Allentown Police
Department, contained sufficient averments
supporting that there was a fair probability that

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653 A.2d 626
(Cite as: 539 Pa. 499, *511, 653 A.2d 626, **632)

evidence of a crime would be found in the
defendant's room. The averments in the affidavit
contained a general description and location of
the crime and victim, as well as the fruits from
what was properly believed to be a burglary and/
or robbery, as well as the criminal homicide.
The affids vit placed the defendant not only at the
scene of the crime earlier that evening but also
sets forth the fact that entry into the premises was
gained by opening a window in the bathroom of
the premises from the inside and that the
defendant was seen going into the bathroom on a
number of occasions that evening. Moreover,
the detective sergeant observed a bloody footprint
tread near the location of the victim's body, whieli
pattern of tread was recognized to be simular to
the one on the sneakers worn by the defendant
when the police officer had interviewed him a
short time pnor to the execution of the affidavit.
Lastly, the affidavit revealed that the defendant
had checked into the room sought to be searched
by using a fictitious name at a time when the
defendant had told the police officer that he was
at a different location. Lastly [sic], the affidavit
set forth that, approximately two months’ [sic]
before the criminal homicide, the defendant had
been hiding 1n the victim's bar after hours.
Commonwealth» Rompilia, No. 682/1988, slip op.
at 8-9 (CP. Lehigh County March 12, 1993) (en
banc)

[13}{14}[15] Im determuning the validity of a search
warrant, this Court has adopted the totality of the
circumstances test articulated by the United States
Supreme Court in /Ilimois y Gates, 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed.26 527 (1983)
The task of the isSuing magistrate is simply to
make a practical, common-sense decision
whether, given ail t.e circumstances set forth in
the affidavit before him. including the “veracity”
and “basis of knowledge” of persons supplying
*S12 hearsay information, there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. And the duty
of a reviewing court is simply to ensure that the
magistrate had a “substantial basis for
conclud| ing} that probable cause existed.”
Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d
921, 925 (1985) (quoting /Ilinois v Gates, 462 US.
at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548
(1983)) (citation omutted); see also Rule 2003(a) of
the Pennsylvania Rules of Crumunal Procedure ("[njo
search warrant shal] issue but upon probable cause
supported by one or more affidavits sworn to before

Page 7

the issuing authority. The issuing authority, in
determining whether probable cause has been
established, may not consider any evidence outside
the affidavits"). A finding of probability of criminal
activity is sufficient to support the probable cause
requirement of a search warrant; a prima facie
showing of such activity is not required.
Commonwealth v. Baker, 532 Pa. 121, 126-27, 615
A.2d 23, 25 (1992). After reviewing the affidavit
underlying the warrant and giving due deference to
the conclusions of the issuing magistrate, we find that
probable cause existed to support the search warrant
executed on Appellant's hotel room. Commonwealth
**633 v. Council, 491 Pa. 434, 444, 421 A.2d 623,
628 (1980). Accordingly, Appellant's argument must
be reyected as meritless. [FN10]

FNIO. When police entered Appellant's
hotel room armed with the aforementioned
search warrant, they were accompanied by a
parole officer who held a parole detainer.
This detainer was based on the fact that
Appellant was observed drinking alcohol in
violation of one of his conditions of parole.
Appellant maintains that the presence of the
parole officer was a pretext because the
search warrant executed on his hotel room
was not based on probable cause. Based on
our finding that the search warrant was
supported by probable cause, we need not
address this issue. We note, however, that
parole officers may arrest a parolee without
a warrant for violating any of the terms of
his parole. See 61 P.S. § 331.27

Appellant argues lastly that the trial court erred in
allowing a transcript of a rape victim's testimony to
be read to the jury during the sentencing phase.
Appellant claims that the Commonwealth was
appealing to the passions of the jury and could have
utilized a different method to describe what had
happened. *513 The Commonwealth responds that it
was necessary to prove that Appellant had a history of
convictions for felonies involving violence and that
reading the transcript of the victim's testimony was
the most efficient way to present the facts of one of
the prior convictions.

{16} Our review of the record affirms the
Commonwealth's contention that the reading of the
victim's testimony was necessary to support the
aggravating circumstance found under 42 Pa.C.S. §
9711(d9). [FN11} Appellant had previously been
convicted of theft, burglary, and rape. Prior to the
sentencing hearing, defense counsel attempted to
have the burglary conviction excluded from the jury's

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gee ve

653 A.2d 626
(Cite as: 539 Pa. 499, *513, 653 A.2d 626, **633)

consideration based upon this Court's decision in
Commonwealth v. Christy, 511 Pa. 490, 515 A.2d
832 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct.
2202, 95 L.Ed.2d 857 (1987). In Christy, this Court
held that the trial court had erred in submitting a
burglary conviction to the jury for purposes of 42
Pa.C.S. § 9711(d)(9) because the Commonwealth
failed to present evidence that the conviction
involved the threat or use of violence. /d. 511 Pa. at
507-08, 515 A.2d at 840-41. We concluded that
"[ijn order for a felony to be includable under 42
PaCS. § 9711(d)(9), the Commonwealth must
present evidence that the defendant actually
threatened another with violence or actually used
violence on another." /d. at 508, 515 A.2d at 841.

FNII. 42 PaCS. § 9711(d\9) provides
that an aggravating circumstance can be
found by the jury where “[t}he defendant
has a significant history of felony
convictions involving the use or threat of
violence to the person.”

In Commonwealth v. Goins, 508 Pa. 270, 495 A.2d
527 (1985), this Court held that a single felony
conviction for a crime of violence does not suffice to
establish a significant history under 42 Pa.C.S. §
9711(d)(9). In the instant case, a rape conviction
was the only felony for which Appellant was
convicted that clearly involved the use of violence.
Thus, the Commonwealth had to show that a threat of
violence or actual violence was used in the
commission of the burglary in order to establish a
felony history under 42 Pa.C.S. § 9711(d)(9). In
order to achieve that end, the Commonwealth had the
testimony *514 of the rape victim read into the record
because the burglary involving the use of violence
was part of the same episode. [FN12] By having an
assistant district attorney read from a transcript, we
believe that the Commonwealth presented the facts of
Appellant's prior crime in a way that minimized the
inflammatory impact of his prior crimes to the jury.
Accordingly, we conclude that the trial court did not
err in allowing the Commonwealth to present
evidence of Appellant's prior crime through the
reading of the victim's testimony.

FNi2. Appellant had broken into the
victim's apartment which was located above
a bar. According to the victim's testimony,
Appellant initially entered the apartment in
the belief that she kept a large sum of
money there. (N.T. 11/1/88, 75-76). After
discovering that the money was located in
the bar's cash register, Appellant and the

Page 8

victim proceeded downstairs where he stole
the money from the register. (N.T. 11/1/88,
78- 80). Appellant then brought the victim
back up to the apartment and raped her at
knifepoint. (N.T. 11/1/88, 82-90).

{17}{18]}{19}(20] Finally, it is our statutory duty to
insure that the jury's sentence is based upon **634
the facts presented at the sentencing hearing. See 42
Pa.C.S. § 9711(h). Our review of the record in this
case satisfies us that the sentence imposed by the jury
was not the product of passion, prejudice, or any
other arbitrary factor. The record also supports the
jury's finding of the aggravating circumstances set
forth in 42 Pa.C.S. § 9711(d)(6), (8) and (9). [FN13]
Appellant killed his victim during the commission of
the burglary and robbery of the victim's tavern.
Moreover, the manner in which Appellant carried out
this brutal murder is sufficient to support a finding
that the killing was committed by means of torture.
"In order to establish the aggravating circumstance of
torture, the Commonwealth must prove that the
defendant had a specific intent to inflict ‘a
considerable amount of pain and suffering on a victim
which is unnecessarily heinous, atrocious, or cruel
manifesting exceptional depravity.’ " Commomwealth
v. Daniels, 537 Pa. 464, 473, 644 A.2d 1175, 1180
(1994) (quoting Commonwealth *515 v. Thomas, 522
Pa. 256, 277, 561 A.2d 699, 709 (1989);
Commonwealth v. Pursell, 508 Pa. 212, 239, 495
A.2d 183, 196 (1985)). In the instant case, Dr.
Isidore Mihalakis, a forensic pathologist, testified at
during the infliction of almost all of the injuries that
he received. (N.T. 11/1/88, 101). -These injuries
included abrasions, lacerations, blunt force injuries, a
fractured nose, and multiple stab wounds. (N.T. 11/
1/88, 102). Dr. Mihalakis further testified that the
number and location of the virious wounds on the
victim's body were indicative of injuries that were
inflicted with the intent of causing pain. (N.Y. 11/1/
88, 110). Thus, there is ample evidence on the
record to support the jury's finding of torture in this
case. Lastly, with respect to Appellant's history of
felony convictions involving the use of violence, the
record fully supports the jury's finding. In addition
to a rape conviction, Appellant was convicted of
burglary in which he brandished and used a knife to

FN13. The aggravating circumstances found
by the jury were that “[t}]he defendant
committed a killing while in the
perpetration of a felony,” that “[t}he offense
was committed by means of torture,” and

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653 A.2d 626
(Cite as: 539 Pa. 499, *515, 653 A.2d 626, **634)

that “(t]he defendant has a significant
history of felony convictions involving the
use or threat of violence to the person.” 42
PaCS. § 9711(dK6), (8) and (9),
respectively

The information compiled by the Admunistrative
Office of Pennsylvamia Courts indicates that the
sentenc$mposed in this case 1s not disproportionate
to the sentence imposed in simular cases.

Accordingly, the judgment of sentence 1s affirmed.

Page 9

(FN14]

FN1I4. The prothonotary of the Supreme
Court is directed to transmit the full and
complete record in this case to the Governor
pursuant to 42 Pa.C.S. § 9711(1)
MONTEMURO, J., is sitting by designation.
653 A.?d 626, 539 Pa. 499

END OF DOCUMENT

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ee ee

721 A.2d 786
(Cite as: 554 Pa. 378, 721 A.2d 786)
>

Briefs and Other Related Documents
Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee,
v.
Ronald ROMPILLA, Appellant.

Submitted Aug. 5, 1997.
Decided Dec. 10, 1998.
Reargument Denied Jan. 19, 1999.

After defendant's murder conviction and death
sentence were affirmed, 539 Pa. 499, 653 A.2d 626,
defendant petitioned for postconviction relief. The
Court of Common Pleas, Lehigh County, No. 682 of
1988, Thomas A. Wallitsch, J., denied relief.
Defendant appealed. The Supreme Court, No. 152
Capital Appeal Docket, Nigro, J., held that: (1)
counsel was effective with respect to investigation
and presentation of mitigation evidence during
penalty phase; (2) prosecutor's penalty phase
summation did not contain improper argument that
violated defendant's right to due process and fair
capital sentencing proceeding; (3) trial court's
apparent discussion with counsel about proceedings
outside of defendant's presence did not violate
defendant's right to be present at all stages of trial;
(4) Commonwealth could introduce facts surrounding
prior burglary conviction to establish aggravating
factor of significant history of felony convictions
involving violence or threat of violence the person;
and (5) defendant was not entitled to penalty phase
instruction that life meant life without parole.

Affirmed.
Cappy and Newman, JJ., concurred in result.

Flaherty, C.J., dissented and filed opinion.

West Headnotes
[1] Criminal Law @= 15194)
110k1519(4)
(Formerly 110k998(8))

To establish claim of ineffective assistance of counsel
under Post Conviction Relief Act (PCRA), defendant
must show that (1) underlying claim is of arguable
merit; (2) counsel had no reasonable basis for act or
omission in question; and (3) but for counsel's act or
omission, outcome of proceedings would have been

Page 1

different. U.S.C.A. Const.Amend. 6; 42 Pa.C.S.A. §
§ 9541-9546.

[2] Criminal Law @641.13(7)
110k641.13(7)

Trial counsel was effective with respect to
investigation of defendant's mental health for
purposes of presenting mitigation evidence during
penalty phase of capital murder prosecution, where
counsel employed three experts to evaluate defendant
but, based upon their testing, experts found nothing
helpful to defendant's case and diagnosed him as
sociopath. U.S.C.A. Const.Amend. 6; 42 Pa.C.S.A. §
§ 9541-9546.

[3] Criminal Law @641.13(7)
110k641.13(7)

Trial counsel was effective with respect to
investigation of defendant's background for purposes
of presenting mitigation evidence during penalty
phase of capital murder prosecution, where counsel —
spoke to family before trial, but no family members
revealed abuse or other circumstances that could be
used as mitigation evidence. U.S.C.A. Const.Amend.
6; 42 Pa.C.S.A. §§ 9541-9546.

[4] Criminal Law @= 1171.1(2.1)
110k1171.1(2.1)

Prosecutor's comments do not constitute reversible
error unless their unavoidable effect would be to
prejudice jury and form in their minds fixed bias and
hostility toward defendant such that they could not
weigh evidence objectively and render true penalty
, ae

[5] Criminal Law @=713
110k713

At penalty phase, prosecutor has more latitude in
presenting argument, as presumption of innocence is
no longer applicable.

[6] Sentencing and Punishment > 1780(2)
350Hk1780(2)
(Formerly 110k723(1))

should impose death penalty when prosecutor stated,
during penalty phase, that it was “not easy for me to
argue for the death penalty.”

Copr. © West 2004 No Claim to Orig. U.S. Govt. Works

721 A.2d 786
(Cite as: 554 Pa. 378, 721 A.2d 786)

[7] Sentencing and Punishment G= 1780(2)
3SOHk1780(2)
(Formerly 110k723(1))

Prosecutor argued with permissible oratorical flair
that jury should impose death sentence, when
prosecutor stated, during penalty phase, that "if you
don't do it in this case, when are you going to do it?
This is the most appropriate case for the death penalty
and that's all I'm asking for."

[8] Sentencing and Punishment @= 1780/2)
3S0HkK1780(2)
(Formerly 110k723(1))

Prosecutor could ask jury, during penalty phase of
capital murder prosecution, to show defendant the
same mercy that defendant showed victim.

[9] Sentencing and Punishment @= 1780(2)
3S50Hk1780(2)
(Formerly 110k723(1))

Prosecutor's argument, during penalty phase of capital
murder prosecution. that defendant killed victim to
eliminate any witnesses to burglary did not have
unavoidable effect of prejudicing jurors and forming
in their minds fixed bias and hostility towards
defendant so as to prevent them from weighing
evidence and returning true verdict.

[10] Sentencing and Pumshment G= 1780(2)
350Hk1780(2)
(Formerly 110k723(1))

Prosecutor did not improperly comment during
penalty phase on murder victim's famuly's inability to
testify as to their feelings about victim's death as
compared to defendant's family's ability to share their
feelings with jury: comments served to respond to
defendant's farmly's testrmony, and jury was able to
infer victim's famuly’s feelings

{11} Crumnal Law @= 1550
110k1550
(Formerly 110k998(6.1))

While Supreme Court did not condone prosecutor's
penalty phase comments that murder victim's son
mussed his father. unavoidable effect of comments did
not arouse jury's emotions or prejudice jury so they
could not fairly weigh evidence, and thus did not
warrant postconviction rehef

Page 2

[12] Sentencing and Punishment @> 1780(3)
3S0Hk1780(3)
(Formerly 203k311)

Trial court's instruction on death penalty aggravating
circumstance that offense was committed by means of
torture was not unconstitutionally vague. 42
Pa.C.S.A. § 9711(d)(8).

[13] Sentencing and Punishment C= 1617
350Hk1617
(Formerly 110k1206.1(2))

In evaluating vagueness challenge, Supreme Court
considers whether death penalty statute adequately
channels sentencing jury's discretion so that death
penalty is not imposed on arbitrary or capricious
grounds.

[14] Sentencing and Punishment @=> 1625
350Hk1625
(Formerly 110k1206.1(2))

Statute setting forth as death penalty aggravating
factor that defendant has significant history of felony
convictions involving use or threat of violence to the
person is not unconstitutionally vague. 42 Pa.C.S.A.
§ 9711(d)(9).

[15] Criminal Law @636(1)
110k636(1)

Defendant has constitutional right to be present in
court at every stage of criminal tral. U.S.C.A.
Const.Amend. 6; Const. Art. 1, § 9.

[16] Criminal Law @636(3)
110k636(3)

[16] Criminal Law @ 662.70
110k662.70

Tnal court's apparent discussion with counsel about
proceedings outside of defendant's presence did not
implicate defendant's confrontation rights, and
defendant's right to be present at all stages of trial was
not violated. U.S.C.A. Const.Amend. 6; Const. Art.
1, § 9; Rules Crim Proc., Rule 1117(a), 42 Pa.C.S.A.

[17] Criminal Law @= 1440(1)
110k1440(1)
(Formerly 110k998(13))

Postconviction review of claim already litigated on

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721 A.2d 786
(Cite as: 554 Pa. 378, 721 A.2d 786)

appeal cannot be obtained by alleging ineffective
assistance of prior counsel and presenting new
theories of relief. U.S.C.A. Const.Amend. 6; 42
Pa.C.S.A. § 9543(a)(3).

[18] Sentencing and Punishment @= 1762
350Hk1762
(Formerly 203k358(1))

Commonwealth may place underlying facts of prior
convictions before jury during penalty phase of
capital murder prosecution so that jury is able to
assess weight to be given to aggravating factor that
defendant has significant history of felony
convictions involving use or threat of violence to the
person. 42 Pa.C.S.A. § 9711(d)(9).

[19] Sentencing and Punishment €= 1780(3)
350Hk1780(3)
(Formerly 110k796)

Jury must be told during capital sentencing
proceeding that life means life without parole only
when defendant's future dangerousness is at issue.

[20] Sentencing and Punishment @= 1780(3)
350Hk1780(3)
(Formerly 203k311)

Defendant was not entitled to instruction, during
penalty phase of capital murder prosecution, that life
meant life without parole, based on Commonwealth's
argument for aggravating circumstance that defendant
had significant history of felony convictions involving
use or threat of violence to the person; aggravating
circumstance only addressed defendant's past
conduct, not his future dangerousnes:. 42 Pa.C.S.A.
§ 9711(d)(9).

{21} Criminal Law @= 1042
110k1042

Defendant waived claim that trial court erred in
failing to excuse juror for cause and that trial counsel
failed to challenge him for cause, where claim was
not raised in defendant's postconviction petition or in
proceedings before postconviction court. 42
Pa.C.S.A. §§ 9541-9546.

[22] Criminal Law @= 1453
110k1453
(Formerly 110k998(6.1))

No prejudicial cumulative error existed which would

Page 3

entitle defendant to new trial and sentencing
proceeding on petition for postconviction relief,
where defendant's individual claims of error failed for
lack of merit.

**788 *382 Billy H. Nolas, Philadelphia, for R.
Rompilla, appellant.

*383 Michael P. McIntyre, Allentown, Robert A.
Graci, Harrisburg, for the Com., appellee.

**789 Before FLAHERTY, C.J.. and ZAPPALA,
CAPPY, CASTILLE, NIGRO. NEWMAN and
SAYLOR, JJ.

~ OPINION
NIGRO, Justice.

In this capital case, Appellant Ronald Rompilla
appeals from the Order of the Lehigh County Court of
Common Pleas, which denied his petition for relief
under the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-9546. For the reasons set forth below, we
affirm.

On November 1, 1988, Appellant was convicted of
murdering James Scanlon on January 14, 1988 in
Scanlon's bar, the Cozy Corner Cafe, in Allentown,
Pennsylvania. Scanlon's son discovered his father’s
body lying behind the bar in a pool of blood.
Scanlon had been stabbed repeatedly and set on fire.
His wallet had been stolen and about $500 to $1000
had been stolen from the bar. [FN1] On November
3, 1988, after a penalty hearing, the jury found three
and sentenced Appellant to death. [FN2] This Court
affirmed the judgment of sentence on direct appeal.
Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d
626 (1995).

FNI. Appellant was convicted of murder in
the first degree, 18 PaCS. § 2502(a);
burglary, id § 3502(a), criminal trespass,
id =§ 3503(aX1Mii); robbery, id = §
3701(aX 1X i); two counts of theft, id §
3921(a), and two counts of recerving stolen
property, id § 3925S(a).

killing in the perpetration of a felony, 42
PaC.S. § 9711(d\6), that the offense was
committed by means of torture, id
9711(d8), and that Appellant has
significant history of felony con

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721 A.2d 786
(Cite as: 554 Pa. 378, *383, 721 A.2d 786, **789)

involving the use or threat of violence, id §
9711(d9). The jury found as a mitigating
circumstance other evidence of mitigation
under 42 Pa.C.S. § 971 (eM 8).

Following a stay of execution, on December 5, 1995,
Appellant filed a petition for relief pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. On March 28 and 29, 1996, the PCRA
“court held hearings on the petition. By Order dated
August 21, 1996, the PCRA court denied *384
Appellant's petition for relief. Appellant then
appealed to this Court. He raises twelve claims.

Appellant first argues that his trial counsel was
ineffective in the penalty phase for failing to
investigate, develop and present evidence of
mitigation related to his childhood upbringing,
alcoholism, mental retardation, cognitive impairment
and organic brain defects, which may have caused the
jury to impose a life sentence. Appellant specifically
maintains that counsel did not obtain records that
would have aided the mental health experts who
evaluated him, including school records reflecting a
low IQ, a hospital record reflecting a fever at age two,
and Department of Corrections records reflecting in
part low achievement test scores and alcohol abuse.
Appellant also argues that counsel failed to learn
about Appellant's abusive childhood from his family.

[1] To establish a claim of ineffective assistance of
counsel under the PCRA,a defendant must show that
(1) the underlying claim is of arguable merit; (2)
counsel had no reasonable basis for the act or

omussion in question; and (3) but for counsel's act or _

omission, the outcome of the proceedings would have
been different. Commonwealth v. Henry, 550 Pa.
346, 706 A.2d 313, 323 (Pa.1997). [FN3] At the
PCRA hearings, Appellant questioned former trial
and appellate counsel about their representation and
three of his siblings testified about his childhood.
Appellant subsequently submitted depositions of a
psychologist and neuropsychologist who evaluated
him in 1995 and 1996 respectively. The parties also
submitted depositions of the mental health experts
who evaluated-Appellant in 1988 and the deposition
of a psychologist who reviewed Appellant's 1995 and
1996 evaluations.

FN3. While the Court is currently
considering the stringency of the prejudice
requirement applicable to ineffective
assistance claims under the PCRA in
Commonwealth v Kimball, No. 38 MD
Appeal Dkt.1997, as shown below. this

Page 4

requirement 1s not implicated in this case.

After the hearings, the PCRA court concluded that
Appellant's claim has arguable merit because
Appellant was entitled to have relevant information of
mental infirmity presented to the jury. However, the
court found that counsel had a *385 reasonable basis
for **790 proceeding as they did. It explained that
trial counsel employed two recognized experts in the
field of psychiatry and psychology who administered
tests, evaluated Appellant, and reported that there was
nothing that could be used as mitigation evidence.
Rather, the experts told counsel that Appellant was a
sociopath. Counsel also obtained an evaluation by
another psychiatrist who after evaluating Appellant,
found nothing that would be beneficial in the penalty
phase. Although counsel did not obtain the records
identified above, the PCRA court found them not
entirely helpful to Appellant and further found that
counsel gave the experts whatever information they
requested.

With respect to Appellant's siblings’ testimony about
his childhood, the PCRA court accepted trial
counsel's testimony that when they questioned
Appellant and his family before trial, they did not
reveal the information that they now claim should
have been told to the jury. The court rejected the
siblings’ testimony to the contrary. The court also
stated that Appellant made contradictory statements
to counsel during his representation and that counsel
was reasonable in believing that their only avenue
was to ask the jury to have mercy on him.

[2] We agree withthe PCRA court that trial counsel
was effective with respect to their investigation and
presentation of mitigation evidence. In addition to
concluding that counsel acted reasonably, we further
find that Appellant's claim lacks arguable merit. As
recognized by the PCRA court, trial counsel
employed three experts to evaluate Appellant. N.T.,
3/28/96 at 68-69, 120-21. Based upon their testing,
the experts found nothing helpful to Appellant's case
and diagnosed him as a sociopath. /d. at 122-23.
The fact that Appellant now has found two experts
who conclude that he has brain damage does not
negate the fact that trial counsel investigated
Appellant's cognitive abilities with other experts. In
addition, we agree with the PCRA court that under
the facts of this case, counsel reasonably relied upon
their discussions with Appellant and upon their
experts to determine the records needed to evaluate
his mental health and other potential *386 mitigating
circumstances. See N.T., 3/29/96 at 27-28, 33,

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Dut AE RE

721 A.2d 786
(Cite as: 554 Pa. 378, *386, 721 A.2d 786, **790)

38-39. Thus, Appellant's claim that trial counsel
failed to investigate his mental health is without
arguable merit.

{7} With respect to the mitigation evidence brought
forth by Appellant's siblings, the PCRA court
accepted as credible trial counsels’ testimony that
when they spoke to the family before trial, none of the
family members revealed abuse or other
circumstances that could be used as mitigation
evidence. See N.T., 3/28/96 at 46-51, 109, 118-19,
133, 143; N.T., 3/29/96 at 111. Thus, Appellant's
claim that trial counsel failed to investigate his family
background also lacks arguable merit.

Related to this claim, Appellant next argues that
because trial counsel failed to investigate his
background, he received inadequate evaluations by
mental health professionals in violation of his
constitutional rights. Having found above that trial
counsel did not fail to investigate, this claim similarly
has no merit.

[4}[S] Appellant next argues that the prosecutor's
penalty phase summation contained improper
argument that violated his right to due process and a
fair capital sentencing proceeding. We disagree. A
prosecutor's comments do not constitute reversible
error unless their unavoidable effect would be to
prejudice the jury and form in their minds a fixed bias
and hostility toward the defendant such that they
could not weigh the evidence objectively and render a
true penalty determination. Commonwealth v.
Johnson, 542 Pa. 384, 404, 668 A.2d 97, 107 (1995).
At the penalty phase, the prosecutor has more latitude
in presenting argument since the presumption of
innocence is no longer applicable. Commonwealth v.
Washington, 549 Pa. 12, 700 A.2d 400, 414
(Pa.1997).

In his closing argument, the prosecutor said "[iJt's
not easy for me to argue for the death penalty...”
N.T., 11/2/88 at 45. The prosecutor also ended his
argument by stating “if you don't do it in this case,
when are you going to jo it? This is the most
appropriate case for the death penalty and that's all
I'm asking for....". N.T., 11/2/88 at 53. Appellant
maintains *387 that in making these **791
statements, the prosecutor personally vouched for the
propriety of imposing the death penalty.

[6}{7] Appellant muisconstrues the first statement.
The prosecutor did not inject a personal opinion that
the jury should impose the death penalty but rather

Page 5

stated that it is a difficult penalty to ask for. With
respect to his second statement, the prosecutor argued
with permissible oratorical flair that the jury should
impose a death sentence. See Commonwealth v.
Jones, 546 Pa. 161, 206, 683 A.2d 1181, 1203 (1996)
(statement that “this is just the kind of case that the
legislature had in mind [for the imposition of the
death penalty}" found proper).

[8] In addition, Appellant challenges the following
statements by the prosecutor:
[Defense counsel] gave you a very inspired, a
very emotional speech and that is her job, there's
nothing wrong with that. And what the main
touchstone of that speech was mercy ... [B]ut ask
yourselves this, ladies and gentlemen of Jury.
Did Ronald Rompilla show any mercy to Jimmy
Scanlon, any mercy whatsoever? I submit to
you, he did not. He did not show one bit of
mercy on January 14, 1988.
Did he show Jimmy Scanlon any mercy, any
mercy whatsoever? I submit to you, he didn't.
... I'm only asking you to show the same mercy to
him that he showed to Jimmy Scanlon.
N.T., 11/2/88 at 47, 49, 50. This Court, however,
has held that it is permissible during the penalty phase
for a prosecutor to ask the jury to show the defendant
the same mercy he showed the victim. See
Commonwealth v. Washington, 549 Pa. 12, 700 A.2d
400, 415 (Pa.1997) (rejecting a similar challenge).
Thus, no relief is warranted on this claim.

[9] Appellant also argues that the prosecutor
improperly stated that he killed the victim in order to
eliminate any witnesses to his burglary of the bar.
See N.T., 11/2/88 at 51-52. Appellant asserts that
there is no evidence_supporting this argument. The
Commonwealth concedes that the argument *388 was
not strong given the facts of this case but maintains
that it was fair as it related to the aggravating
circumstance that the killing took place during the
perpetration of a felony. We agree with the
Commonwealth that whatever its purpose, the
argument did not have the unavoidable effect of
prejudicing the jury and forming in their minds fixed
bias and hostility towards Appellant so as to prevent
them from weighing the evidence and returning a true
verdict.

{10}[11} Lastly with respect to prosecutorial
misconduct, Appellant maintains that the prosecutor
improperly commented upon the victim's family's
inability to testify as to their feelings about the
victim's death as compared to Appellant's family's

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721 A.2d 786
(Cite as: 554 Pa. 378, *388, 721 A.2d 786, **791)

ability to share their feelings with the jury. See N.T.,
11/2/88 at 52-53. The Court rejected a similar
argument in Commonwealth v. Jones, 546 Pa. 161,
206, 683 A.2d 1181, 1203 (1996), where the
prosecution stated that the jury did not have an
opportunity to hear from the victim's family and
friends, who would feel exactly the opposite of the
defendant's family members. As in Jones, these
comments served to respond to Appellant's family's
testimony and the jury was able to infer the victim's
family's feelings. While we do not condone the
prosecutor's additional comments that the victim's son
misses his father, we cannot conclude that the
unavoidable effect of these comments was to arouse
the jury's emotions or prejudice the jury so they could
not fairly weigh the evidence. [FN4]

FN4. This claim and most of Appellant's
remaining claims were not raised on direct
appeal. Appellant primarily argues the
merits of each claim and notes that trial and
appellate counsel were ineffective in
handling the issues. The PCRA court ruled
on the merits of Appellant's claims. We
have also addressed the merits. Since we
conclude that the claims do not have merit,
it 1s unnecessary to address the other prongs
of the test applicable to ineffective

assistance of counsel claims, which is set
forth on page three above.

[12] Next, Appellant claims that the trial court's
instruction on the aggravating circumstance that the
offense was committed by means of torture, 42
Pa.C.S. § 9711(d)(8), was unconstitutionally vague.
The court's instruction was as follows:
**792 *389 The second aggravat{ing]
circumstance advanced by the Commonwealth
was that the ... offense was committed by means
of torture. The word “torture” is generally
understood as the infliction of a considerable
amount of pain and suffering on a victim which is
unnecessarily h{einous], atrocious or cruel,
manifesting exceptional depravity. There must
of necessity be more than a mere intent to kill to
be an aggravating circumstance, the law requires
an intent to cause pain and suffering in addition
to the intent to kill. There must be an indication
that the killing is not--the killer is not satisfied
with the killing alone.

N.T., 11/2/88 at 55. This Court has previously
found this instruction proper and has held that the
aggravating circumstance that an offense was
committed by means of torture is not
unconstitutionally vague. In Commonwealth v

Page 6

Pursell, 508 Pa. 212, 238-39, 495 A.2d 183, 196-97
(1985), the Court explained that this aggravating
circumstance is sufficiently specific because the
meaning of torture is a matter of common knowledge
and an ordinary man would not have to guess what
was intended. Thus, the jury will not impose the
death penalty in an arbitrary manner. The trial
court's instruction defining torture in this case is
essentially the same as that given in Pursell. See id.
at 239 n. 13, 495 A.2d at 197 n. 13.

Appellant appears to concede that the trial court gave
an instruction defining torture that comports with
Pursell and its progeny. [FNS] Nonetheless,
Appellant argues that the definition employed by the
court is unconstitutionally vague under Maynard v.
Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100
L.Ed.2d 372 (1988). Maynard, however, found
vague an aggravating circumstance in the Oklahoma
death penalty statute that provided that the murder
was “especially heinous, atrocious, or cruel." 486
U.S. at 363-64, 108 S.Ct. 1853. The Court explained
that these words alone did not guide the jury as
almost every murder could be characterized as
especially heinous, atrocious, or cruel. /d. Maynard
did not involve an *390 aggravating circumstance
that an offense was committed by means of torture.
In addition, the Court in Maynard agreed that a
limiting instruction that the aggravating circumstance
at issue required torture would be constitutionally
acceptable. /d. at 364-65, 108 S.Ct. 1853. Thus,
Maynard does not preclude defining torture as the
infliction of pain that is unnecessarily heinous,
atrocious or cruel, with the intent to cause pain and
suffering in addition to the intent to kill. Appellant's
claim is without merit.

FNS. See, e.g, Commonwealth v. Wharton,
530 Pa 127, 607 A2d 710 (1992)
(requiring instruction that defines the term
torture); Commonwealth v. Nelson, 514 Pa.
262, $23 A.2d 728 (1987) (same).

Appellant next argues that 42 Pa.C.S. § 9711(d)(9),
which sets forth as an aggravating factor that the
defendant has “a significant history of felony
convictions involving the use or threat of violence to
the person,” is unconstitutionally vague. § While
acknowledging that the Court has consistently
rejected this argument, see, e.g, Commonwealth v.
Rivers, 537 Pa. 394, 644 A.2d 710 (1994);
Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689
(1986), Appellant contends that the Court wrongly
decided the issue.

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721 A.2d 786
(Cite as: 554 Pa. 378, *390, 721 A.2d 786, **792)

Appellant maintains that in Rivers and Fahy the
Court improperly relied upon Commonwealth v
Beasley, 504 Pa. 485, 475. A.2d 730 (1984), which
held that the mitigating circumstance that a defendant
has “no significant history of prior criminal
convictions” is not vague. Beasley relied upon
Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976), where the defendant challenged
a similar mitigating circumstance under the Florida
death penalty statute. The United States Supreme
Court found that the death penalty statute presented
questions that required no more line-drawing than is
commonly required of a factfinder and held that the
mitigating circumstance is not unconstitutionally
vague. /d. at 257, 96 S.Ct. 2960.

{13}[14] In evaluating a vagueness challenge, the
Court considers whether the death penalty statute
adequately channels the sentencing jury's discretion
so that the death penalty is not imposed on arbitrary
or capricious grounds. See Commonwealth v.
Holcomb, 508 Pa. 425, 463, 498 A.2d 833, 852- 53
(1985). While Beasley involved a mitigating
circumstance and *391 thus did not present the **793
identical issue that was before the Court in Rivers and
Fahy, the Court looked to that decision because the
statutory language challenged as vague was the same.
A finding that a mitigating circumstance adequately
channels the sentencing jury's discretion supports that
an aggravating circumstance with the same language
also passes constitutional muster. Thus, Appellant's
claim is without merit. [FN6]

FN6. Appellant also argues that three other
states have found similar aggravating
circumstances unconstitutionally vague.
See State v. David, 468 So2d 1126
(La.1984); Gall v. Commonwealth, 607
S.W.2d 97 (Ky.1980); Arnold v. State, 236
Ga. 534, 224 S.E.2d 386 (1976). This
Court distinguished these decisions in
Commonwealth v. Holcomb, 508 Pa. 425,
463-64, 498 A.2d 833, 853 (1985), and we
shall not revisit this issu

Appellant next argues that the trial court and counedt
improperly discussed outside of his presence whether
an instruction on voluntary manslaughter wou!d be
provided to the jury. He maintains that this
discussion violated his right to be present during all
critical phases of the trial. Appellant relies upon a
discussion in the record that references an agreement
made on an earlier date on whether the instruction
would be given. See N.T., 10/31/88 at 92. Present
counsel reviewed the record for the referenced date

Page 7

and found no discussion of the issue. Appellant thus
claims a discussion was improperly held outside of
his presence.

[15] Defendants have a constitutional might to be
present in court at every stage of a criminal trial.
Commonwealth v. Ford, 539 Pa. 85, 100-01, 650
A.2d 433, 440 (1994). This right is based in part on
the defendant's right to confront his witnesses under
the Sixth Amendment of the United States
Constitution and Article I, § 9 of the Pennsylvania
Constitution. See id In addition, the Pennsylvania
Rules of Criminal Procedure provide:
The defendant shall be present at the arraignment,
at every stage of the trial including the
impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except
as otherwise provided by this rule. The *392
defendant's absence without cause shall not
preclude proceeding with the trial including the
return of the verdict.
Pa. R.Crim. P. 1117(a).

[16] The trial court explained that its discussions
with counsel essentially involved housekeeping
matters and that Appellant's presence would not
contribute to the fairness of the trial. Appellant does
not develop his constitutional argument in his brief to
this Court. We conclude that the trial court's
apparent- discussion with counsel about the
proceedings outside of Appellant's presence did not
implicate his confrontation rights and his right to be
present at all stages of the trial was not violated.

[17] Appellant next argues that the trial court erred
in answering the jury's question about accomplice
liability. This Court ruled on this claim on direct
appeal. See Rompilla, 539 Pa. at 508-09, 653 A.2d
at 630-31. Appellant may not obtain relief under the
PCRA on a claim that has already been litigated. 42
Pa.C.S. § 9543(a)(3). While Appellant contends in a
footnote that appellate counsei did not adequately
pursue this claim on direct appeal, post-conviction
review of a claim already litigated on appeal cannot
be obtained by alleging ineffective assistance of prior
counsel and presenting new theories of relief.
Commonwealth v. Peterkin, 538 Pa. 455, 460-61, 649
A.2d 121, 123 (1994).

Appellant next argues that the trial court improperly
allowed the prosecutor to read to the jury the
testimony of the victim of a prior rape during the
penalty phase. Appellant was convicted of rape and
burglary arising from a single incident in 1974.

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721 A.2d 786
(Cite as: 554 Pa. 378, *392, 721 A.2d 786, **793)

When Appellant objected to the introduction of the
testimony, the prosecutor argued in part that it was
necessary to establish that the related burglary
conviction was violent for purposes of the
aggravating circumstance that Appellant has a
significant history of felony convictions involving the
use or threat of violence, 42 Pa.C.S. § 9711(d)(9).
See N.T., 11/1/88 at 33-38. The trial court admitted
the testimony. /d

*393 On direct appeal, Appellant's former counsel
argued that the trial court erred in admitting the rape
victim's testimony because it **794 appealed to the
passions of the jury. The Commonwealth again
maintained that it was necessary to establish the
aggravating factor and that reading the transcript was
the most efficient wey to present the facts. This
Court held that the trial court did not err in allowing
the testimony to be read to the jury. Rompilla, 539
Pa. at 512-14, 653 A.2d at 633 (1995). Relying upon
Commonwealth v. Christy, 511 Pa. 490, 515 A.2d
832 (1986), the Court stated that the Commonwealth
had to show a threat or use of violence in the
commission of the burglary to establish a significant
history of felonies under 42 Pa.C.S. § 9711(d)(9). /d.
{[FN7] The Court also concluded that by reading the
transcript, the Commonwealth presented the facts in a
way that minimized the inflammatory impact.

FN7. In Christy, the Commonwealth
introduced evidence of the defendant's prior
burglary conviction to establish the
aggravating factor. The Commonwealth did
not introduce evidence showing that the
burglary involved the threat or use of
violence. On appeal, the Court stated that
the Commonwealth must present evidence
that the defendant actually threatened or
used violence to include a felony under 42
PaCS. § 9711(dX9). Sil Pa. at 507-08,
515 A2d at 840-41. However, since the
jury did not find the aggravating factor, the
Court held that the error was not prejudicial
Id

The Court has thus already decided on direct appeal
that the rape victim's testimony was admissible.
Nonetheless, Appellant now argues that prior counsel
was ineffective for not bringing Commonwealth v.
Rolan, 520 Pa. 1, 549 A.2d 553 (1988), to the
attention of the trial court and this Court on direct
appeal. Appellant maintains that under Rolan, it was
only necessary to introduce evidence of his burglary
conviction to establish a felony involving the threat or
use of violence. [FN8}

Page 8

FN8. In Rolan, the Commonwealth
introduced evidence of the defendant's prior
burglary convictions in order to establish
the aggravating factor. Appellate counsel
argued that trial counsel was ineffective in
allowing the evidence since burglaries are
not felonies involving the use or threat of
violence. The Court held that burglary is a
crime involving the use or threat of violence

- and found counsel effective. 520 Pa. at 15,
549 A.2d at 559-60. It stated that the
discussion in Christy as to the evidence
necessary to establish the aggravating factor
was dicta since the jury did not find the
aggravating factor. /d n. 5.

[18] *394 As stated above, a claim that has already
been litigated cannot be revisited by alleging
ineffective assistance of prior counsel and presenting
new theories of relief. Commonwealth v. Peterkin,
538 Pa. 455, 460-61, 649 A.2d 121, 123 (1994).
Even if it could, Appellant's claim does not have
arguable merit. Regardless of the applicability of
Rolan, the Commonwealth was entitled to introduce
facts surrounding the burglary conviction. See
Commonwealth v. Jones, 542 Pa. 464, 523-24, 668
A.2d 491, 520 (1995); Commonwealth v. Beasley,
505 Pa. 279, 288, 479 A.2d 460, 465 (1984). The
Commonwealth may place the underlying facts of
prior convictions before the jury so that it is able to
assess the weight to be given to the aggravating
factor. Jones, 542 Pa. at 523-24, 668 A.2d at 520.
Here, when Appellant's trial counsel objected to the
testimony and then offered to stipulate that the
burglary is a crime of violence, the Commonwealth
properly argued that the jury was entitled to know the
underlying facts. See N.T., 11/1/88 at 33-38. Thus,
no relief is due on this claim. [FN9]

FN9. To the extent the Court's decision on

direct appeal in this case departs from
Rolan, this Court has since affirmed the

principles in Rolan. See, eg,
Commonwealth v. Gibson, 720 A.2d 473
(Pa. 1998).

Appellant next argues that his due process rights
were violated because the trial court did not answer
the jury's question about his parole eligibility.
During jury deliberations in the penalty phase, the
jury asked, “If a life sentence is imposed, is there any
possibility of the Defendant ever being paroled?”
N.T., 11/2/88 at 73. The trial court responded:

I'm sorry to say, I can't answer that question.

That's not before you as such. The only matter

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721 A.2d 786
(Cite as: 554 Pa. 378, *394, 721 A.2d 786, **794)

that you can consider in the Sentencing Hearing
is the evidence that was brought out in the course
of the Hearing and the Law with respect to the
Court's Charge. That's the only consideration
you have, I'm sorry to say. 1--if there were other
alternatives that you should consider, we would
have outlined them in the Charge, all mght. Are
there any other questions?

**795 /d. at 73-74. Appellant argues that the jurors
should have been told that a life sentence means life
without parole under *395 Simmons v. South
Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d
133 (1994), which mandates such an instruction when
a defendant requests it and his future dangerousness
is at issue.

[19}[20] Under the current state of the law in
Pennsylvania, the jury must be told that life means
life without parole only when the defendant's future

is at issue. Commonwealth v. Clark,
551 Pa. 258, 710 A.2d 31, 35-36 (Pa.1998).
Appellant argues that his future dangerousness was at
issue because the Commonwealth argued the
aggravating circumstance that he has a significant
history of felony convictions involving the use or
threat of violence. The Court rejected this argument
in Commonwealth v. May, 551 Pa. 286, 710 A.2d 44,
47 (Pa.1998). As stated in that case, this aggravating
circumstance only addresses Appellant's past conduct,
not his future dangerousness. See id Thus, no
relief is due. [FN10]}

FN10. This author agrees with the dissent's
position that a Simmons instruction should
be given in all cases and has previously so
stated. See Clerk, 710 Add at 43-44
(Nigro, J., concurring, joined by Flaherty, J.
and joined in relevant part by Zappala, J.),
May, 710 A.2d at 49 (Nigro, J., concurring,
joined by Zappala, J.). Under the current
state of the law, however, Appellant's
argument that he was entitled to the
instruction because the Commonwealth
argued the aggravating circumstance
identified above, is without merit. See
May, 710 A.2d at 47.

{21} Next, Appellant argues that the trial court erred
in failing to excuse a juror for cause and that tial
counsel failed to challenge him for cause. This
argument was not raised in Appellant's PCRA petition
or in the proceedings before the PCRA court. Thus,
Appellant has waived this claim. See
Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998)

Page 9

Appellant next argues that this case should be
remanded to the Court of Common Pleas for a
hearing on recently discovered claims related to
alleged violations of Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This issue has
already been litigated. Appellant filed a remand
motion in this Court on March 10, 1997 alleging the
possibility of misconduct by the Federal Bureau of
Investigation in the handling of evidence in this case.
This Court entered an *39%6 order denying the motion
for remand on May 20, 1997. Appellant now
summarizes his remand motion and offers no reason
why this Court should reconsider its earlier ruling.
No relief is due on this claim.

[22] Lastly, Appellant argues that he is entitled to a
new trial and sentencing proceeding because the
prejudicial effects of the cumulative errors in this
case undermine confidence in the outcome at both
stages of the trial. The Court rejected a similar

in Commonwealth v. McGill, 545 Pa. 180,
680 A.2d 1131 (Pa.1996). In that case, the
defendant's individual claims of error failed for lack
of merit. As such, there could be no prejudicial
cumulative effect when there was no harm in the first
place. /d. 680 A.2d at 1136. The same is true here.

Having found that none of Appellant's claims
warrants relief, the order of the Court of Common
Pleas is affirmed.

Chief Justice FLAHERTY files a Dissenting
Opini

Justice ZAPPALA and Justice NEWMAN concur in
the result.

FLAHERTY, Chief Justice, dissenting.

I believe the majority is in error in its treatment of
the issue pertaining to the jury's question about the
defendant's parole eligibility. | Under Simmons v.
South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129
L.Ed.2d 133 (1994) and Commonwealth v. Clark,
551 Pa. 258, 710 A.2d 31, 35-36 (Pa.1998), the court
must tell a jury that a life sentence means life without
parole, if the defendant requests the instruction and
his future dangerousness is at issue. Here, during
deliberations in the penalty phase, the jury asked, "If
a life sentence is imposed, is there any possibility of
the Defendant ever being paroled?" I view this
question as a clear expression of the jury's concern
about the defendant's future dangerousness. | would

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721 A.2d 786
(Cite as: 554 Pa. 378, *396, 721 A.2d 786, **795)

therefore hold that the tnal court's refusal to explain
the meaning of life without **796 parole constituted
error under Commonwealth v. Clark, supra. | would
therefore reverse the order of the *397 court of
common pleas and remand for proceedings consistent
with this opimon.

I would go further and require an explanation of the
meaning of a life sentence in all capital cases. There
can be no harm in instructing juries that in
Pennsylvania appellant would be statutorily ineligible
for parole if sentenced to life in prison, but that a life
sentence might nonetheless be commuted by the
governor. On the other hand, if we do not so
struct, a jury, erroneously believing that a prisoner
sentenced to life may be paroled within a period of
years, may impose the death penalty for reasons
which are not based in law. :

Page 10

721 A.2d 786, 554 Pa. 378
Briefs and Other Related Documents (Back to top)

. 1997 WL 33544694T2 (Appellate Brief) Reply
Brief of Appellant (Aug. 08, 1997)Original Image of
this Document (PDF)

. 1997 WL 33544693T2 (Appellate Brief) Initial
Brief of Appellant (Jun. 03, 1997)Original Image of
this Document with Appendix (PDF)

1996 WL 33418286T2 (Appellate Brief)
Commonwealth's Brief in Opposition to Initial Bnef
of Appellant (1996)Original Image of this Document
(PDF)

END OF DOCUMENT

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Not Reported in F Supp.2d
(Cite as: 2000 WL 964750 (E.D.Pa.))
>

Only the Westlaw citation is currently available.
United States District Court, E.D. Pennsylvania.

Ronald ROMPILLA, Petitioner,
Vv.

Martin HORN, Commissioner, Pennsylvania
Department of Corrections; Philip L.
Johnson, Superintendent of the State Correctional
Institution at Greene, and
Joseph P. Mazurkiewicz, Superintendent of the State
Correctional Institution at
Rockview, Respondents.

No. CIV.A.99-737.

July 11, 2000.
MEMORANDUM

BUCKWALTER

*1 On February 12, 1999, Ronald Rompilla
(Petitioner) filed a Motion to Proceed /n Forma
Pauperis; For Stay of Execution; For Appointment of
Federal Habeas Corpus Counsel; and for 120 days to

This motion was granted and uitimately, all briefs,
exhibits and records necessary to render this decision
were filed no later than February 8, 2000. [FN1]

FNI. The court also received a letter dated
February 3, 2000 from counsel for petitioner
which follows:

We are writing to address the issue
discussed in the telephone conference
convened by the Court on January 21, 2000.
In that conference, your Honor alerted the
parties that the son of the Lehigh County
District Attorney who was in office at the
time of Mr. Rompilla’s tral is presently one
of your law clerks. The Court also indicated
that this clerk has not had, and will not
have, any involvement with Mr. Rompilla's
case. Finally, the Court requested that we
discuss these circumstances with Mr.
Rompilla to determine whether a recusal
motion. or a similar application, would be
appropriate.

We discussed these facts with Mr. Rompulla
by telephone on January 27, 2000. Based
upon the telephone conference with the
Court and our discussion with Mr.
Rompilia, Petitioner 1s satisfied with the

Page I

Court keeping this matter and will make no
application for recusal or related relief.
NOTE: The clerk referred to has had no

the court in Williams v. Taylor, supra and
the ABA Standards.

Before proceeding with my review of this case, |
awaited a decision then pending before the United
States Supreme Court in Terry Williams v. Taylor,
120 S.Ct. 1495 (2000), which was decided April 18,
2000. This case will be referred to both in the
Standard of Review and the Claim I discussion. In
light of Williams, supra, 1 accepted additional
briefing and held oral argument on July 10, 2000.

I. BACKGROUND

Petitioner, represented by court-appointed counsel,
was convicted of first degree murder and

in
County Court of Common Pleas, No.
(Honorable David E. Mellenberg, J.). The conviction
and sentence were affirmed on direct appeal to the
Pennsylvania Supreme Court. Commonwealth v.
Rompilla, 539 Pa. 499, 653 A.2d 626 (1995).

Petitioner's post-conviction claims. Further evidence
was taken (with the consent of the parties and the
court's permission) by way of depositions, which
were filed with the Court. See Deposition of Carol
Armstrong, Ph.D. (April 2, 1996) (Exhibit 3);
Deposition of Barry Crown, Ph.D. (April 2, 1996)
(Exhibit 4); Deposition of Paul K. Gross, M.D. (April
1, 1996) (Exhibit 5); Deposition of Gerald Cooke,
Ph.D. (April 3, 1996) (Exhibit 7); Deposition of
Robert Sadoff, M.D. (April 23, 1996) (Exhibit 8);
Deposition of Frank M. Dattilio, M.D. (May 7, 1996)
(Exhubit 9). Numerous exhibits were introduced.

On August 21, 1996, Judge Wallitsch issued an

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Not Reported in F.Supp.2d
(Cite as: 2000 WL 964750, *1 (E.D.Pa.))

Opimon and Order denying Petitioner's claims for
post-conviction relief. The Pennsylvania Supreme
Court affirmed on December 10, 1998 and denied
reargument on January 19, 1999. Commonwealth v
Rompilla, 554 Pa. 378, 721 A.2d 786 (1998).

Pennsylvama Governor Thomas Ridge issued a death

warrant, scheduling Petitioner's execution for March
16, 1999, after which the February 12, 1999 petition
referred to above was filed.

The date of petitioner's murder conviction was
November 1, 1988. ["N2] The Supreme Court of
Pennsylvania. in petitioner's direct appeal, wrote this
about the evidence in the case:

FN2. In all, petitioner was convicted of
murder im the first degree, burglary,
criminal trespass, two counts of theft and
two counts of receiving stolen property.

*2 In the early morning hours of January 14.
1988, the victim, James Scanlon, was murdered
in his bar, the Cozy Corner Cafe, located in
Allentown, Pennsylvania. At approximately 6:30
a.m. on that same morning, the victim's son
discovered the body of his father lying behind the
bar in a pool of blood. The victim -had been
stabbed repeatedly and set on fire. The victim's
wallet had been stolen and approximately $500 to
$1,000 had been stolen from the bar.

The Commonwealth's case consisted almost
entirely of circumstantial evidence as there were
no eyewitnesses to this killing. Appellant was
seen in the Cozy Comer Cafe on January 14,
1988, from approximately 1:00 a.m. to 2:00 a.m.
During that time, he was observed going to the
bathroom approximately ten times. A subsequent
police investigation determined that the window
in the men's bathroom was used as the point of
entry into the bar after it had closed.

When questioned by an investigating “detective
from the Allentown Police Department, Appellant
stated that he had been in the Cozy Corner Cafe
on the mght of the murder and left between 2:00
a.m. and 2.30 a.m. because he had no money. He
stated that he had only $2.00 to buy breakfast at a
local diner. A cab driver testified that he picked
up Appellant at the diner and drove him to two
different hotels where Appellant was unable to
rent a room. The diver then took Appellant to the
George Washington Motor Lodge where he was
able to rent a room. Appellant paid the cab fare of
$9.10

Page 2

Appellant rented a room for two nights at the
George Washington Motor Lodge. In doing so, he
paid $121.00 in cash and flashed a large amount
of cash to the desk clerks. Appellant also used a
false name when he checked in.

The police secured a search warrant for
Appellant's motel room and seized several items,
including Appellant's sneakers. These sneakers
matched a footprint in blood that was discovered
near the victim's body. In addition, the blood
found on the sneakers matched the victim's blood
type.

The Commonwealth also presented other
circumstantial evidence that linked Appellant
with the robbery and murder of James Scanlon.
First, Mr. Scanlion's wallet was found by a
grounds keeper in the bushes, six to eight feet
outside the room that Appellant had rented at the
George Washington Motor Lodge. Second,
Appellant's fingerprint was found on one of the
two knives that was used to commit the murder.
Finally, there were mumerous inconsistencies
between what Appellant had told police
concerning his activities on January 14 and 15,
1988, and the testimony of other witnesses.

When viewed in the light most favorable to the
Commonwealth as verdict winner, the evidence
clearly supports Appellant's conviction for first
degree murder.

Petitioner now makes 11 claims which he contends
merit habeas corpus relief.

Il. STANDARD OF REVIEW

Before undertaking an analysis of petitioner's claim,
it 's appropriate to set forth the standard of review for
§ 2254 petitions:
*3 (d) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of that claim--
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d) (West Supp. 1998).

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Not Reported in F.Supp.2d
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Moreover, “a determination of a factual issue made
by a State court shall be presumed correct. The
applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e(1).

In accordance with Matteo v. Superintendent S.C./.
Albion, 171 F.3d 877 (3d Cir.1999), cert. denied.
120 S.Ct. 73 (1999), this court should first review a
State court decision to determine if it was contrary to
Supreme Court precedent governing the claim for
relief, such that a contrary outcome is required. If the
initial review finds that the State court decision is not
contrary to the precedent, then no habeas relief
should be granted “unless the State court decision,
evaluated objectively and on the merits, resulted in an
outcome that cannot be reasonably justified under
existing Supreme Court precedent.” The court went
on to say in Matteo that even if the federal habeas
court disagrees with the State court dec ‘sion, relief is
not appropriate. Thus, we must uncc:take a two-step
review under the “contrary to” clause and the
“unreasonable application” clause. Matteo further
warns that although a reviewing court may consider
"the decisions of inferior federal courts" when
deciding whether the State court reasonably applied
Supreme Court precedent, "federal courts may not
grant habeas corpus relief based on the State court's
failure to adhere to the precedent of a lower federal
court in an issue that the United States Supreme Court
has not addressed.” ~

Finally, § 2254(d) refers to “any claim that was
adjudicated on the merits in State court proceedings.”
If a claim was disposed of by a State court without an
explanation as to the legal or factual basis for its
disposition, my view is that a habeas court may then
undertake a de novo review.

In Williams, Justice O'Connor, delivering the opinion

of the court as to Part II, summed up the above, as

follows:
In sum, § 2254(d)(1) places a new constraint on
the power of a federal habeas court to grant a
state prisoner's application for a writ of habeas
corpus with respect to claims adjudicated on the
merits in state court. Under § 2254(d)(1), the writ
may issue only if one of the following two
conditions is satisfied--the —state-court
adjudication resulted in a decision that (1) “was
contrary to ... clearly established Federal law, as
determined by the Supreme Court of the United
States,” or (2) “involved an _ unreasonable
application of ... clearly established Federal law,

Page 3

as determined by the Supreme Court of the
United States.” Under the “contrary to” clause, a
federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that
reached by this Court on a question of law or if
the state court decides a case differently than this
Court has on a set of materially indistinguishable
facts. Under the “unreasonable application”
clause, a federal habeas court may grant the writ
if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of
the prisoner's case.

*4 1 wil! now discuss each claim in order.

CLAIM IL TRIAL COUNSEL WERE
INEFFECTIVE AT THE CAPITAL SENTENCING
PHASE FOR FAILING TO INVESTIGATE,
DEVELOP AND PRESENT SIGNIFICANT
MITIGATING EVIDENCE RELATED TO
PETITIONER'S TRAUMATIC CHILDHOOD,
ALCOHOLISM, MENTAL RETARDATION,
COGNITIVE IMPAIRMENT AND ORGANIC
BRAIN DAMAGE.

For purposes of analyzing Claim I, it is important to
produce at the sentencing hearing. The record reveals
that Petitioner's counsel called five witnesses on his
behalf at that hearing: Darlene Rompilla, his sister-in-
law; Nicholas Rompilla, Junior, an older brother;
Robert Rompilla, a younger brother; Sandy Whitby, a
sister; and Aaron Rompilla, a son who was 14 at that
time. The total examination of those witnesses is
encompassed in about 26 pages of Notes of
Testimony, Volume VII. Not one witness discussed
Petitioner's traumatic childhood, his alcoholism,
mental retardation, cognitive impairment or organic
brain disorder. What they did say were, "He was a
good family member"; "We never had a problem"; I
don't think my brother did it"; “Have mercy off him";
"I was close to him, he loved my family, he just didn't
have a chance"; “They didn't give him no
rehabilitation” ; "Why can't he get help like all the rest
of the people get help"; “I love him very much"
(crying); "I've never seen the bad side of my brother,
never”; “He just loves us like we love him.”

The testimony was apparently presented to engender
sympathy for the Petitioner. From the record, it
appears that it may have been uncomfortable for all
involved. A person identified on the record as Ms.
Hass says (referring to the jury, apparently), “They

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said they need a break. They said that they can't take
no more of this mght now.” At side bar, the court said,
"They wanted a break” to which trial counsel replied,
"Me too.”

The recitation above is to explain the nature of the
sentencing hearing. It seemed to be designed
primarily as an emotional appeal to the jury to show
mercy to Petitioner--he wasn't as bad as he seemed
and his family loved him. On its face at least, the
hearing seems unreasonably bref and lacking in real
substance considering the nature of the proceedings.

Indeed, in an opinion written after a PCRA hearing,
the Honorable Thomas A. Wallitsch, Judge of the
Court of Common Pleas of Lehigh County, presiding
over that hearing in place of his late colleague, The
Honorable David E. Mellenberg, the tal judge,
found that the Petitioner was entitled to have relevant
information of mental infirmity presented to a jury. In
applying Pennsylvama law, Commonwealth v. Buehl.
450 Pa. 493, 658 A.2d 771 (1995), he nevertheless
found that counsel had a reasonable basis for
proceeding as they did. In affirming Judge Wallitsch,
the Supreme Court of Pennsylvania stated as follows:

“It [the PCRA court] explained that trial counsel
employed two recognized experts in the field of
psychiatry and psychology who administered
tests, evaluated Appellant, and reported that there
was nothing that could be used as mitigation
evidence. Rather. the experts told counsel that
Appellant was a sociopath. Counsel also obtained
an evaluation by another psychiatrist who after
evaluating Appellant. found nothing that would
be beneficial in the penalty phase. Although
counse] did not obtain the records identified
above [records that Petitioner maintains would
have aided the mental health experts, including
school records reflecting a low IQ, a hospital
record reflecting a fever at age two, and
Department of Corrections records reflecting low
achievement test scores and alcohol abuse}, the
PCRA court found them not entirely helpful to
Appellant and further found that counsel gave the
experts whatever information they requested.

*5 With respect to Appellant's siblings’ testumony
about his childhood, the PCRA court accepted
tial counsel's testumony that when they
questioned Appellant and his family before tal,
they did not reveal the information that they now
claim should have been told to the jury. The court
rejected the siblings’ testuumony to the contrary.
The court also stated that Appellant made
contradictory statements to counsel during his

Page 4

representation and that counsel was reasonable in
believing that their only avenue was to ask the
jury to have mercy on him.

We agree with the PCRA court that trial counsel
was effective with respect to their investigation
and presentation of mitigation evidence. In
addition to concluding that counsel acted
reasonably, we further find that Appellant's claim
lacks arguable merit. As recognized by the PCRA
court, trial counsel employed three experts to
evaluate Appellant. N.T., 3/28/96 at 68-69,
120-21. Based upon their testing, the experts
found nothing helpful to Appellant's case and
diagnosed him as a sociopath. /d. at 122-23. The
fact that Appellant now has found two experts
who conclude that he has brain damage does not
negate the fact that trial counsel investigated
Appellant's cognitive abilities with other experts.
In addition, we agree with the PCRA court that
under the facts of this case, counsel reasonably
relied upon their discussions with Appellant and
upon theii experts to determine the records
needed to evaluate his mental health and other
potential mitigating circumstances. See N.T., 3/
29/96 at 27-28, 33, 38- 39. Thus, Appellant's
claim that trial counsel failed to investigate his
mental health is without arguable ment.

With respect to the mitigation evidence brought ~
forth by Appellant's siblings, the PCRA court
accepted as credible trial counsels’ testimony that
when they spoke to the family before trial, none
of the family members revealed abuse or other
circumstances that could be used as mitigation
evidence. See N.T., 3/28/96 at 46-51, 109,
118-19, 133, 143; N.T., 3/29/96 at 111. Thus,
Appellant's claim that trial counsel failed to
investigate his family background also lacks
arguable merit.

Related to this claim, Appellant next argues that
because trial counsel failed to investigate his
background, he received inadequate evaluations
by mental health professionals in violation of his
constitutional rights. Having found above that
trial counsel did not fail to investigate, this claim
sumilarly has no merit.

In testimony at the PCRA hearing, Maria Dantos,
Esquire, who handled the sentencing hearing (penalty
phase), testified that she graduated from law school in
1985, was then employed by the Lehigh County
Office of the Public Defender and undertook
representation of Petitioner (together with Chief
Public Defender Frederick Charles) sometime after
his arrest in January of 1988. She described her role

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as handling the penalty phase including making the
arguments and presenting witnesses. Attorney
Charles, as her supervisor, was involved in all of the
decisions and the discussions on how to proceed. This
was Ms. Dantos’ first capital case, and first homicide
tnal. She contacted three mental health professionals;
Drs. Cooke, Sadoff and Gross prior to the trial to
initially see if there was any issue of mental infirmity
or mental insanity for the guilt phase and, mental
infirmity for the penalty phase if the jury returned a
first degree verdict. Apparently, she did not get
Petitioner's school records and those records were
never furnished to the three doctors aforesaid. The
school records revealed, among other things, that
Petitioner was in special education class and that his
1.Q. was below the mentally retarded range at certain
ages. The medical records of Petitioner were not
obtained by trial counsel either. Those records
revealed that at age 2, Petitioner was admitted to the
hospital with a 105> fever and diarrhea.
Finally, the Department of Corrections records,
discussed at page 18, were not obtained by counsel.

*6 Ms. Dantos did talk to family members, but
nothing exceptional was presented to her about
alcoholism within the family. Also, it was never
indicated that there was any sort of abuse within the
family. Ms. Dantos did agree that if someone were an
alcoholic, that might be potentially mitigating value.

Chief Public Defender Frederick E. Charles was also
examined at great length at the PCRA hearing before
Judge Wallitsch. My examination of his testimony
leads me to conclude that he was a veteran attorney
with significant criminal trial experience as a defense
lawyer at the time of Petitioner's trial; that he was
knowledgeable with regard to the law and savvy with
regard to trial techniques and strategy. While not
dispositive of the ineffectiveness issue, a letter sent
by Sandra Whitby to Maria Dantos shows the
impression the representation of Mr. Charles and Ms.
Dantos made upon someone close to the case.
"Dear Maria. It is the next day, and the pain and
word “death” is still alive in my mind, but I had
to take the time and write and tell Fred and you
what supurb [sic] human beings you both are.
You fought and felt everything our family did,
and when we cried you cried along with us. You
left a feeling in me | can't explain, and | want to
thank you both for caring and for being there with
us all the way. I'm sure | speak for all my family.
I only hope that some day, as Fred promised, the
word “death” can be erased from the sentence so
we can live in peace that Ron will be there to

Page 5

wre, visit and talk with. If he should die, a part
of us will, too, cause in our hearts we feel he is
innocent, and nothing will change that.

Maria, I know at this point you want to put this
matter aside and get on with your work, but |
hope you don't give up on Ron, cause he called
me and said you woke up feelings in him, and he
trusts you with all his heart. We both know that
was hard for him to say.

I can't say it enough that Fred and you are both
wonderful, caring people. Thank you again for
everything, and please, please help us, and don't
forget us.

Love, Sandra Whitby.”

The following excerpt from the lengthy testimony of
Mr. Charles puts into perspective what was done on
behalf of Petitioner compared to what Petitioner
claims should have been done:
Q. Okay. That's fine. Just so I fully understand--
getting back to the penalty phase, just so I
upon what your client tells you?
A. No, that's not my position. Okay. | know how
you want to simplify this. But--and so I don't
know if I can answer you in the terms of your
question. But I'll try. We investigate the evidence
that we have, the evidence that's given in a
preliminary hearing. We look at the probable
cause affidavit. We look at the examination that
we took in this case from the preliminary hearing.
We looked at the evidence that came forth during
the suppression hearing. We looked at the
evidence that--
*7 Q. I'm talking about the penalty phase.
A. But whatever came, we--you know, you den't--
we don't sit and separate it. It's an investigation.
The penalty phase is something that we keep an
eye on. But I have to tell you in this case you had
a very, very objecting client. Whenever we tried
to talk penalty phase and death penalty with him,
he was resistant to that.
Q. Let's discuss that.
A. Sure.
Q. Let's discuss that. What | thought you said just
before was that you sit down with your chent and
you say, "Tell me how you schooling was,” and
your client would say, “I did okay in school.”
We're talking hypothetically. All might? If you
have a client who is reluctant to discuss how his
schooling was because he doesn't really want to
talk about the penalty phase, do you, as counsel,
have a duty to go further than just talking to your
chent about it?

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A. It depends

Q Depends on what’

A. It depends on what evidence you have in the
case It depends on what he's told you.

Q You--

A. Let me fimsh, Mr. Wiseman. He didn't tell us,
"Tm not willing to talk to you about my
schooling. I'm reluctant to talk about my this.” He
said there was nothing wrong. “Is there anything
that happened’ What was it like growing up” Is
there anything you can tell us that could help us’
And he said, “No, there was nothing wrong.” He
was very, very. very smooth about it. It wasn't
that he was reluctant to talk about anything. He
said, "Your conversations about the possibility of
the death penalty bore me.” He said, “I have
home box in my room that | can watch, and I'm
bored being here listening to it, and I'm going to
go watch home box,” and he walked out. That's
why, when we tned to go through the death
penalty phase with him and he left, we wrote it in
that letter. And | said, “Since you won't hear it
when we sit there, it bores you, | want you to at
least read it." His reluctance wasn't an overall
reluctance where he said, "I don't want to talk
about my childhood. because it's too painful.”
There was no indicator from anything he told us
that would send us searching for elementary
school records, high school records, any kind of
records. He said everything was fine. He had a
normal childhood. There was nothing there. And
so no. we didn't go beyond that. And my
professional opimon is that, given what Ron
Rompilla told us during the numerous discussions
we had with him and the countless discussions
that John Whuspell, our deceased investigator,
had with him and was over to see him constantly,
there was nothing that came across our table that
would make us go looking for his elementary
schoo! records. his home life records or anything.
And if he knew of anything or his family knew of
anything, they never told us. And | know most
certainly that we asked. and I know Miss Dantos
asked

Q. Asked what?’

A. “What can you tell me about Ron? What was it
like for hum’? What was huis life like? What was it
like growing up’ What was his relationship?
What kind of a brother was he? What kind of a
brother-in-law was he’ What do you know?"
The response was they hardly know him. | mean
one said, "He was in a reformatory. He's been
away the whole tume. We didn't know him that
well.” Things of that nature. But | remember her

Page 6

specifically going one by one and talking to him.
“Is there anything you can tell me? Tell me about
yourself. Tell me about your background.” She
was, you know, meticulous to cover points. And
she had a way of doing that, because she was
legitimately concerned. And | thought it was
disarming. They engaged in numerous what |
considered to be cordial conversations. Some of
the times I felt like | was in the way even being in
the room, and I'd go get coffee. And she would sit
down, and so would John Whispell. John
Whispell was like a buddy with them, and they
would go over and talk. "Tell me about yourself."
We undertook to try and determine from him and
his family whatever information we could.
Nothing came across to us that made us do what
you're asking about.

*8 Q. All mght. Are you aware of the dynamics
that exist among people who are subject to child
abuse, that they don't readily like to talk about
those kinds of things? Is that something that you--
A. Sure.

Q. --see in your experience?

A. Sure.

Q. So you go to an adult--well, let's say--well,
you go to an adult who may have had an abusive
childhood, and you say, “How was your
childhoc4?" and the person says it was fine.
Would you agree that, given your awareness of
the abuse dynamics, that maybe it would be more
prudent to go beyond the client and beyond those
who may have abused the client to lock for other
indications of abuse?

A. It may in a vacuum. But, my goodness, you
have--with 2,000 defendants you have over 50
percent that tell you, "Yes, I've been beaten. I've
been raped. I've been molested.” | mean, what's
the difference? It's hard to determine when
someone says, “No, | had a great childhood. I had
no problems,” the difference between that and
being in denial. | mean we talked to him more
than once, and we believed that there was nothing
outstanding. His family didn't tell us anything. |
mean maybe the family would say, “Hey, you
know don't believe him, because he was one heck
of an abused kid." That never was volunteered. It

~ was never told during any of the times that we

talked to them. You know, even if Ron denied it,
I mean, somebody in the family would have
known it. His wife would have known it.
Somebody would know it to tell us. And I don't
think that it's looking back and | really think it's
classic. | don't want to say that. You're looking
back at it in a vacuum. Because when he says,

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“No, there's nothing there,” you know, what's the
difference between the truth, there was nothing
there, and classic denial. I'm not an expert. That's
why I send them to an expert.

Q. All right.

A. And I figure that Dr. Cooke or Dr. Sadoff or
Dr. Gross, who do this for a living, might be able
to say, "There's something in the way he denied
this that shows it's classic denial syndrome, and
we ought to explore it a little bit." So I get him
away from me making that call. I'm a lawyer. I'm
not a psychiatrist or a psychologist. And so I get
him to a pro, and then | get on with the business
of preparing the rest of my case. And that's what
we did with Ron Rompilla's case.

Petitioner argues now that this investigation did not
fulfill counsel's obligation to conduct a thorough
investigation of Petitioner's background. More
specifically, trial counsel for Petitioner, his present
counsel argue, should have obtained his school,
medical, court and prison records as part of their
investigation. The school records would have shown
he was in special education and mentally retarded or
borderline mentally retarded; the medical records
would have revealed his early hospitalization at age
2; and the prison records would have shown scores on
other tests, as well as other background information.
There is reason to believe, from my reading of the
depositions of Drs. Cooke, Sadoff and Gross, that
information from those records may have been
important in their respective diagnoses.

*9 At the beginning of this analysis, | said 'ain the meaning of life
Commonwealth v. Clark, supra. 1 would
therefore reverse the order of the court of
common pleas and remand for proceedings
consistent with this opinion.
I would go further and require an explanation of
the meaning of a life sentence in all capital cases.
There can be no harm in instructing juries that in
Pennsylvania appellant would be statutorily
ineligible for parole if sentenced to life in prison,
but that a life sentence might nonetheless be
commuted by the governor. On the other hand, if
we do not so instruct, a jury, erroneously
believing that a prisoner sentenced to life may be
paroled *286 within a period of years, may
impose the death penalty for reasons which are
not based in law.
Id. at 795-96 (Flaherty, C.J., dissenting). [FN1}

FNI. I find it difficult to glean much

analysis of illa's Simmons claim was an

$12 US. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133

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355 F.3d 233
(Cite as: 355 F.3d 233, *286)

(1994), and Kelly v South Carolina, 534 U.S. 246,
122 S.Ct. 726, 151 L_Ed.2d 670 (2002), and therefore
that it must be reversed under the standards of
AEDPA.

In Simmons, the Supreme Court held that the
defendant's due process nght to answer an allegation
against him requires the tnal court to instruct the jury
that the alternative to the death penalty 1s life without
parole (in states where that is the alternative) if the
prosecutor argues that the defendant will pose a
danger to others. As Justice Blackmun, who authored
the plurality opimion, wrote: “The State may not
create a false dilemma by advancing generalized
arguments regarding the defendant's future
dangerousness while, at the same time, preventing the
jury from learning that the defendant never will be
released on parole.” Simmons, 512 U.S. at 171, 114
S.Ct. 2187. In Shafer v. South Carolina, 532 US.
36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), the
Supreme Court described Simmons as holding that
when “a capital defendant's future dangerousness 1s at
issue, and the only sentencing alternative to death
available to the jury is life imprisonment without
possibility of parole, due process entitles the
defendant ‘to inform the jury of [his] parole
meligibility, either by a jury imstruction or in
arguments by counsel." /d at 39, 121 S.Ct. 1263
(quoting Ramdass v Angelone, 530 U.S. 156, 165,
120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (plurality
opinion)).

The Simmons plurality and Justice O'Connor,
concurring. believed there was no question that the
prosecutor had made an issue of Simmons's future
dangerousness. As a result, the Court had no
occasion to define what constitutes making an issue
of future dangerousness. That issue was directly
addressed eight years later in Kelly, an opinion of the
Court authored by Justice Souter.

In Kelly, the prosecutor stated that he would not
argue future dangerousness and “that takes it out of
Simmons anyhow.” Kelly, 534 U.S. at 249, 122 S.Ct.
726. The tnal court then denied Kelly's counsel's
request for a Simmons imstruction, saying that the
State's evidence went to Kelly's character and
characteristics, not to future dangerousness. The
South Carolina Supreme Court affirmed the
conviction and death sentence, holding that the
Simmons instruction was not required because future
dangerousness was not at issue.

In reversing, Justice Souter stated that the South

Page 40

Carolina Supreme Court's statement that Kelly's
future dangerousness was not at issue “is

le on the record before us." /d. at 252,
122 S.Ct. 726. He continued, “It is not that the *287
state court failed to pose the legal issue accurately,
for in considering the applicability of Simmons it
asked whether Kelly's future dangerousness was ‘a
logical inference from the evidence,’ or was ‘injected
into the case through the State's closing argument.’ “
Id at 252, 122 S.Ct. 726 (internal citations omitted).
In support of the appropriateness of this statement of
the legal issue, Justice Souter included the following
citations and explanatory parentheses: “Shafer, (532
U.S.] at 54-55 [121 S.Ct. 1263] (whether prosecutor's
evidence or argument placed future dangerousness in
issue) [and] Simmons, 512 U.S. at 165, 171 [114
S.Ct. 2187], (plurality opinion) (future dangerousness
in issue because ‘State raised the specter of ... future
dangerousness generally’ and ‘advanc({ed]} generalized
arguments regarding the [same]’).” Kelly, 534 U.S. at
252, 122 S.Ct. 726.

In addressing the trial court's interpretation of the

evidence, the Kelly Court explained why the trial

court erred:
To the extent that it thought that "[e)vidence that
Kelly took part in escape attempts and carried a
shank ... is not the type of future dangerousness
evidence contemplated by Simmons,” .. it
overlooked that evidence of violent behavior in
prison can raise a strong implication of
“generalized ... future dangerousness." Simmons,
(512 U.S] at 171 [114 S.Ct. 2187]. (And, of
course, the state court's reasoning says nothing
about the evidence of the crime, or of Kelly's
sadism generally, and his mercurial thirst for
vengeance.) A jury hearing evidence of a
defendant's demonstrated propensity for violence
reasonably will conclude that he presents a risk
of violent behavior, whether locked up or free,
and whether free as a fugitive or as a parolee.

Id. at 253-54, 122 S.Ct. 726 (emphasis added).

In language particularly relevant to this case, the
Kelly Court stated, “The fallacy of the State Supreme
Court's attempt to portray the thrust of the evidence as
so unrealistically limited harks back to a comparable
mustake by the trial judge, who spoke of the evidence
as going, not to future dangerousness, but ‘to [Kelly's}
character and characteristics.'" /d at 254, 122 S.Ct.
726. The Court continued,

The error in trying to distinguish Simmons this

way lies in failing to recognize that evidence of

dangerous “character” may show “characteristic”

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(Cite as: 355 F.3d 233, *287)

future dangerousness, as it did here. This,
indeed, is the fault of the State's more general
argument before us, that evidence of future
dangerousness counts under Simmons only when
the State “introduc[es] evidence for which there is
no other possible inference but future
dangerousness to society." ... Evidence of future
dangerousness under Simmons 1s evidence with a
tendency to prove dangerousness in the future;
its relevance to that point does not disappear
merely because it might support other inferences
or be described in other terms.
/d. (emphasis in orginal).

The Kelly Court thus made explicit what was implicit
in Simmons. the prosecutor need not expressly and
separately argue future dangerousness, rather, future
dangerousness can be made an issue through
implication by or inference from arguments

addressing such independent matters as the
defendant's character.

At Rompilla’s sentencing hearing, the prosecutor,
who was seeking the death penalty, focused on
Rompilla's "significant history of feleny convictions,”
as that is one of the statutory factors that can serve as
“aggravators” in the balancing between *288
under Pennsylvania's death penalty law. 42 Pa.
Cons.Stat. Ann. § 9711(d)(9). During his closing
argument the prosecutor referred to Rompilla's prior
offense, which involved the robbery, rape and
slashing with a knife of a female bar owner, in the
following terms:
Joe Macrenna, the woman that was raped, was
raped pretty brutally. She was raped at knife
point... [Ijsn't it frightening, the similarity
between that case and this case. I mean, it is
absolutely astounding. Both take place around
the bar. The Defendant gets in after closing or
right before closing.... On both occasions, a knife
was used. Steals money both times. Isn't it
frightening the simularities in those crimes. Takes
a taxi away from Joe's Bar, takes a taxi the night
of this crime. He slashes Joe in the breast with a
knife. He uses a knife on Jimmy Scanlon. It's
absolutely frightening to think of the similarities
in those two crimes. But there is one difference,
one major difference, Joe Macrenna lived through
her experience. Jimmy Scanlon didn't... I think
the Defendant learned a lesson from Joe
Macrenna in that case, that Rape case. That
lesson was, don't leave any witnesses. Don't
leave anybody behind that can testify against you.

Page 41

App. at 779-80 (emphasis added).

At sentencing the jury also learned via testimony
elicited by both parties that the instant crime occurred
shortly after Rompuilla had been released from prison,
that there is a lack of rehabilitation services for
prisoners, that Rompilla's children were initially
frightened of him when he was released on parole,
and that he had been paroled from his previous
sentence only three weeks before the instant crime.

Rompilla argues that because the prosecutor placed
Rompilla's future dangerousness at issue, the trial
court was required under Simmons to inform the jury
that Rompilla is parole ineligible. The PCRA court
disagreed, reasoning that Simmons does not apply
because the prosecutor did not argue future
dangerousness. The court stated, "The prosecution
merely argued that Mr. Rompilla had a significant
history of felony convictions which was proper
argument as an aggravating factor under Pennsylvania
law.” App. at 2025. The court did not find the jury's
question concerning whether he had received
rehabilitation supportive of Rompilla's argument:
“This question ... relates more to the issues raised by
the defense witnesses during the penalty phase who
rehabilitation while in prison and while on parole
after his 1974 rape and burglary convictions. In fact,
that was a mitigating factor found by the jury rather
than an aggravating factor.” App. at 2026. The court
relevance of the jury's question concerning whether
rehabilitation is available in prison to Rompilla's
request for a Simmons instruction.

On appeal, the Pennsylvania Supreme Court
Rompilla's Simmons claim in one paragraph which |
quoted in full near the beginning of this dissent. The

Copr. © West 2004 No Claim to Orig. U.S. Govt. Works

355 F.3d 233
(Cite as: 355 F.3d 233, *289)

whether the Pennsylvania Supreme Court believes
this principle to be consistent with or required by

Simmons

When the Simmons issue was before the District

Court on Rompilla's habeas petition, that court also

gave the issue only bref analysis and concluded:
The prosecutor's summation in this case covers
16 pages of the notes of testimony [FN2] and a
fair reading of it leads to the conclusion that the
state's reasoning for the death penalty was not
based upon future dangerousness but on the
despicable, savage and cowardly beating the
Petitoner inflicted upon his victim. This is a
close issue, however, but the Supreme Court of
Pennsylvamia's decision in the PCRA case was
not an unreasonable application of federal law.

FN2. That is not accurate: it covers eight
pages. See App. at 774- 782

Rompilla v. Horn, 2000 WL 964750, at *15
(E.D.Pa. July 11, 2000). The District Court appears
to have agreed with the Pennsylvamia Supreme Court
that if the prosecutor “based his argument on” the
despicable nature of the defendant's actions, he cou

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0111%3A03. Public record. Not legal advice.