J-A06001-24
2024 PA Super 188
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DEANGELO ZIEGLAR : No. 515 WDA 2023
Appeal from the Order Entered April 5, 2023
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002096-2022
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
OPINION BY LAZARUS, P.J.: FILED: August 21, 2024
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Allegheny County, denying its request to
impanel a death-qualified jury. After careful review, we reverse and remand
for further proceedings.
On January 19, 2022, police officers responded to a report of a shooting
at the intersection of Lincoln and Sheridan Avenues in Pittsburgh. Upon
arrival, police encountered Rachel Dowden, who had been shot multiple times.
Dowden was transported to Allegheny General Hospital and was pronounced
deceased at 9:18 p.m. that same day. The ensuing police investigation
revealed that Dowden had a final Protection from Abuse (PFA) order against
Appellee Deangelo Zieglar. On October 20, 2022, after additional
investigation not relevant to this appeal, the Commonwealth charged Zieglar
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with multiple offenses, including criminal homicide,1 for the shooting death of
Dowden.
As part of the pre-trial proceedings in this matter, the Commonwealth,
on April 14, 2022, filed a Notice of Intention to Seek Death Penalty and Notice
of Aggravating Circumstances Pursuant to Pa.R.Crim.P. 8022 and 42 Pa.C.S.A.
§ 9711 (hereinafter, “Notice”). In its Notice, the Commonwealth set forth the
following five aggravating circumstances/factors:
1. The victim was a prosecution witness to a murder or other
felony committed by [Zieglar] and was killed for the purpose of
preventing [her] testimony against [Zieglar] in any grand jury or
criminal proceeding involving such offenses. 42 Pa.C.S.[A.] §
9711(d)(5).
2. [Zieglar] committed the killing while in the perpetration of a
felony. [Id. at] § [](d)(6).
3. In the commission of the offense[, Zieglar] knowingly created
a grave risk of death to another person in addition to [the]
homicide victim. [Id. at] § [](d)(7).
4. [Zieglar] has a significant history of felony convictions
involving the use or threat of violence to the [victim]. [Id. at] §
[](d)(9).
5. At the time of the killing, [Zieglar] was subject to a court order
restricting in any way [his] behavior toward the victim pursuant
to 23 Pa.C.S.[A.] Ch. 61 or any other order of a court of common
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1 18 Pa.C.S.A. § 2501(a).
2 Rule 802 requires that the Commonwealth notify the defendant, at the time
of arraignment, of any aggravating circumstances the Commonwealth intends
to submit at the capital sentencing hearing. See id. Additionally, Rule 802
requires the Commonwealth to list the specific aggravating circumstances as
enumerated in section 9711 of the Sentencing Code. See id.
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pleas or of the minor judiciary designed in whole or in part to
protect the victim from [Zieglar]. 42 Pa.C.S.[A.] § 9711(d)(18).
Notice, 4/14/22, at 1-2.
During one of many status conferences, the trial court indicated that it
would sua sponte order a hearing,3 at which it would require the
Commonwealth to prove the aggravating factors set forth in its Notice. See
Order and Opinion, 4/5/23, at 1-2 (detailing case’s procedural history);
Commonwealth’s Motion to Reconsider, 10/31/22, at 1-5 (requesting trial
court reconsider sua sponte decision to hold hearing on death penalty factors).
The Commonwealth filed a motion to reconsider, to which, on November 2,
2022, the trial court ordered Zieglar file a response.
On November 6, 2022, Zieglar filed his response. See Defendant’s
Response to Commonwealth’s Motion to Reconsider Order to Prove
Aggravators of Death Penalty Notice, 11/6/22, at 1-5. In his response, Zieglar
conceded that “under current law it is improper for this Honorable Court to
challenge the Commonwealth’s exercise of discretion in seeking the death
penalty.” Id. at 3. Additionally, Zieglar “raise[d] a claim that the
Commonwealth [was] abusing its discretion in seeking the death penalty
without providing, in evidence, a factual underpinning for each aggravating
factor.” Id. Ultimately, the trial court did not hold an evidentiary hearing
after concluding that “absent a challenge put forth by [Zieglar]’s attorneys,
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3 We observe that this order, if it was ever written, does not appear in the
certified record before this Court. However, it is clear from our review, based
upon the citations infra, that the trial court did, in fact, order this hearing.
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this [c]ourt has no authority to order such an evidentiary hearing.” Order and
Opinion, 4/5/23, at 4.
After pre-trial procedure not relevant to the instant appeal, the case
proceeded to voir dire. On March 13, 2023, both parties filed their respective
proposed voir dire questions. See Commonwealth’s Proposed Voir Dire
Questions: Death Penalty, 3/13/23, at 1-9 (unpaginated); Defendant’s
Proposed Voir Dire Questions, 3/13/23, at 4-20. The Commonwealth filed 34
proposed voir dire questions and Zieglar filed 70 proposed voir dire questions.
Both parties’ proposed questions pertained almost exclusively to the death
penalty. See Trial Court Opinion, 6/28/23, at 4-5 (summarizing proposed voir
dire questions). Additionally, we note that Zieglar did not oppose the
Commonwealth’s pursuit of the death penalty at this time.
On April 3, 2023, the trial court conducted a hearing on the parties’
proposed voir dire questions. After argument, the trial court took the matter
under advisement. On April 5, 2023, the trial court issued the following order:
a) the 34 voir dire questions filed by the Commonwealth on March
13, 2023[,] will not be permitted to be used during jury selection
in this case;
b) the 70 questions filed by [Zieglar] on March 13, 2023, will not
be permitted to be used during jury selection in this case;
c) the jury selection in this case will be limited to determining the
ability of each juror to be fair and impartial in deciding the verdict
in this case; there will be no deliberations as to sentence;
d) within the next 40 days, counsel for the Commonwealth and
counsel for [Zieglar] may submit proposed voir dire questions
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which do not mention or refer to the death penalty as a
possible sentence in this case;
e) after the [c]ourt has received all re-submitted proposed voir
dire questions, a status conference will be scheduled within 10
days, to address any outstanding discovery issues and jury
selection procedures;
f) the scheduling times set forth above will be stayed should either
party timely file a request for appellate review of this Order[.]
Order, 4/5/23, at 1-2 (emphasis added).
Additionally, the trial court attached an opinion explaining its reasoning
for denying the proposed voir dire questions. See Opinion and Order, 4/5/23,
at 1-10. In particular, the trial court considered that Governor Josh Shapiro
had continued then-Governor Tom Wolf’s moratorium on the death penalty4
and found that the moratorium has made it functionally impossible for a jury
to impose the death penalty. See id. at 3-9. Additionally, the trial court
further concluded that, in light of the moratorium, it was compelled to act on
behalf of the citizens of Allegheny County who may be called for jury duty, to
prevent them from undergoing the harrowing ordeal of deciding whether a
fellow citizen lives or dies where the Governor’s stated refusal to sign a death
warrant has effectively removed the decision from the jury. See id. at 6, 8-
10.
On April 13, 2023, the Commonwealth filed a “Motion to Reconsider and
Clarify,” in which it argued that the trial court’s order effectively prohibited
____________________________________________
4 Governor Shapiro publicly stated that “when an execution warrant comes to
my desk, I will sign a reprieve each and every time.” Opinion and Order,
4/5/23, at 4 (quoting various news articles).
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the Commonwealth from exercising its discretion to impanel a death-qualified
jury. See Commonwealth’s Motion to Reconsider and Clarify, 4/13/23, at 4-
8. Additionally, the Commonwealth contended that the trial court’s order was
in direct conflict with prevailing case law because a trial court has no authority
to challenge the Commonwealth’s pursuit of the death penalty. See id. (citing
Commonwealth v. Buck, 709 A.2d 892, 896 (Pa. 1998) (Supreme Court
recognizing prosecutor possesses initial discretion regarding whether to
pursue death penalty); Commonwealth v. Buonopane,
599 A.2d 681 (Pa.
Super. 1991) (trial court’s pre-trial determination that interfered with
prosecutor’s discretionary functions, absent threshold showing of valid claim
of purposeful abuse, violated constitutional principle of separation of powers,
and courts will not review executive branch actions involving exercises of
discretion absent showing of bad faith, fraud, capricious action or abuse of
power, “nor will they inquire into the wisdom of such actions or into the details
of the manner adopted to carry them into execution”)). Further, as part of its
“Motion to Clarify,” the Commonwealth requested that the trial court clarify
whether it would “[]allow any jury to be selected and death[-]qualified at any
stage of this case[.]” Motion to Reconsider and Clarify, 4/13/23, at 7
(unpaginated) (emphasis in original).
On April 13, 2023, the trial court ordered Zieglar to file a response to
the Commonwealth’s motion to reconsider. On April 18, 2023, Zieglar filed a
response, in which he argued that the trial court was correct to preclude the
impaneling of a capital jury because of the ongoing moratorium. See
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Defendant’s Response to Commonwealth’s Motion to Reconsider and Clarify,
4/18/23, at 1-8 (emphasis in original). Additionally, Zieglar contended that,
just as the Commonwealth may death-qualify a jury, a defendant also has the
right to life-qualify a jury. See id. at 3-4 (citing Commonwealth v. Boxley,
838 A.2d 608, 619 (Pa. 2003) (“During individual voir dire[,] a capital
defendant is also permitted to ask life[-]qualifying questions.”); Morgan v.
Illinois,
504 U.S. 719, 733 (1992) (courts must not restrict voir dire in any
way that limits defendant’s “ability to exercise intelligently his complementary
challenge for cause against those biased persons on the venire who as jurors
would unwaveringly impose death after a finding of guilt”); Wainwright v.
Witt,
469 U.S. 412, 423 (1985) (“The proper standard for determining
whether a prospective juror may be excluded for cause because of his or her
views on capital punishment . . . is whether the juror’s views would prevent
or substantially impair the performance of his duties as a juror.”)). Zieglar
argued that, considering then-Governor Wolf’s death penalty moratorium, and
now-Governor Shapiro’s ongoing death penalty moratorium, “[Governor
Shapiro] issued his statement with the intent that the citizens of Pennsylvania
believe it and, hence, rely on it.” See Defendant’s Response to
Commonwealth’s Motion to Reconsider and Clarify, 4/18/23, at 4. Further,
Zieglar claimed that
[i]n light of the Governor’s proclamation, no juror could
reasonably believe that their decision in the sentencing phase
[would have] any impact on whether or not [] Zieglar is actually
executed. This directly undermines ‘the truly awesome
responsibility of decreeing death for a fellow human’ that is
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implicit within the idea of jury service and necessary under the
Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution.
Id. at 4-6 (citing Caldwell v. Mississippi,
472 U.S. 320 (1985)).5
On April 18, 2023, the trial court issued an order granting a hearing
relative to the Commonwealth’s Motion to Reconsider and Clarify and
scheduling said hearing for April 24, 2023. See Order, 4/18/23, at 1. The
trial court further directed that both parties be prepared to address all matters
raised in the Commonwealth’s motion, “including, but not limited [to,]
whether the [c]ourt’s order of April 5, 2023, is appealable.” Id.
On April 21, 2023, Zieglar filed a supplemental response to the
Commonwealth’s Motion to Reconsider and Clarify. See Defendant’s
Supplement to Defendant’s Response to Commonwealth’s Motion to
Reconsider and Clarify, 4/21/23, at 1-4. In this supplement, Zieglar argued
that, due to Governor Shapiro’s ongoing moratorium, proceeding with voir dire
to death-qualify a jury would unconstitutionally invade on the privacy rights
of the citizens of Allegheny County. See id. Zieglar contended that the death-
qualifying voir dire process is intensely invasive into personal matters for a
purpose that may never come to fruition because of the ongoing moratorium.
See
id.
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5 In Caldwell, the United States Supreme Court held that “it is constitutionally
impermissible to rest a death sentence on a determination made by a
sentencer who has been led to believe that the responsibility for determining
the appropriateness of the defendant’s death rests elsewhere.”
Id. at 328-
29.
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Ultimately, for reasons unclear from the record, the April 24, 2023
hearing was never held. Instead, on May 3, 2023, the Commonwealth filed
the instant notice of appeal6 from the trial court’s April 5, 2023 order. On May
26, 2023, the Commonwealth filed a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
The Commonwealth now raises the following claims for our review:
1. Whether the trial court abused its discretion and/or committed
an error of law by ignoring its duty under the [S]entencing [C]ode
and the [R]ules of [C]riminal [P]rocedure to seat a death-qualified
jury in a prosecution where the death penalty is sought?
2. Whether the trial court’s refusal to permit the assembly of a
death-qualified jury constitutes interference with the prosecutor’s
discretionary functions and violates the constitutional principle of
separation of powers, which provides that no branch of
government should exercise the functions exclusively committed
to another branch?
Commonwealth’s Brief, at 1.
Prior to addressing the Commonwealth’s claims, we must sua sponte
address our jurisdiction to hear this appeal. See Commonwealth v.
Kennedy, 876 A.2d 939, 943 (Pa. 2005) (appellate courts lack jurisdiction
over non-appealable order); Commonwealth v. Jones,
826 A.2d 900, 903
(Pa. Super. 2003) (en banc) (challenge to appellate court’s authority to
conduct review of pre-trial order is jurisdictional matter); see also
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6 On May 18, 2023, the Commonwealth filed an amended notice of appeal.
The Commonwealth’s amended notice of appeal included attachments of an
amended affidavit with an updated list of transcripts. See Amended Notice of
Appeal, 5/18/23, at 3 (unpaginated).
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Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa. Super. 2015) (en banc)
(“We may raise issues concerning our appellate jurisdiction sua sponte.”).
We must address whether the trial court’s April 24, 2023 order properly
granted reconsideration, which bears on whether this Court has jurisdiction
over the instant appeal. Generally, when an appellant files a motion for
reconsideration of a final order, they must file a protective notice of appeal to
ensure preservation of their appellate rights if the court does not expressly
grant reconsideration within the thirty-day appeal period prescribed under
Pa.R.A.P. 903(a). See Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.
Super. 2000). In other words, the mere filing of a motion for reconsideration
does not toll the thirty-day appeal period:
It is well-settled that, upon the filing of a motion for
reconsideration, a trial court’s action in granting a rule to show
cause and setting a hearing date is insufficient to toll the appeal
period. Rather, the trial court must expressly grant
reconsideration within thirty days of entry of its order. Failure to
expressly grant reconsideration within the time set by the rules
for filing an appeal will cause the trial court to lose its power to
act on the application for reconsideration.
Id. (citations omitted).
Instantly, on April 18, 2024, within 30 days of its April 5, 2024 order,
the trial court ordered “that a hearing relative to the Commonwealth’s Motion
to Reconsider and Clarify filed on April 13, 2023, is scheduled for April 24,
2023.” Order, 4/18/23, at 1. Additionally, the trial court ordered that the
parties be prepared to address, inter alia, “whether the [] April 5, 2023 [order]
is appealable.” Id.
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We observe that the April 18, 2023 order was entered onto the docket
as an “Order Granting Commonwealth Motion to Reconsider Order.”
Nevertheless, considering Moir, we conclude that this order is not an express
grant of reconsideration, but rather a grant for a hearing at which the parties
might argue their respective positions. See Moir, supra. In reaching this
conclusion, we emphasize that the trial court did not vacate the April 5, 2023
order. See Commonwealth v. Butler,
566 A.2d 1206, 1211 (Pa. Super.
1989) (if trial court desires additional time to reexamine ruling, it must
expressly grant reconsideration or vacate its order within thirty days).
Further, one of the issues the trial court wished to address at the scheduled
hearing on the Commonwealth’s motion was whether the April 5, 2023 order
was appealable. Therefore, we conclude that the Commonwealth’s notice of
appeal was timely filed as a protective notice of appeal to preserve its
appellate rights. See
Moir, supra.
Next, we observe that the case before us presents an issue of first
impression. Consequently, there are no cases or rules discussing whether the
Commonwealth may appeal as of right, pursuant to Pa.R.A.P. 311(d), from
the trial court’s order denying the proposed capital voir dire questions.
Rule 311(d) provides that “[i]n a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies
in the notice of appeal that the order will terminate or substantially handicap
the prosecution.” Pa.R.A.P. 311(d). Typically, Rule 311(d) is “invoked in
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appeals addressing the admission or exclusion of evidence.” Commonwealth
v. Woodard, 136 A.3d 1003, 1005 (Pa. Super. 2016) (citation omitted); see
also Commonwealth v. Jones,
69 A.3d 180, 185 (Pa. 2013)
(Commonwealth’s appeal of suppression order proper where Commonwealth
certifies in good faith that order substantially handicaps prosecution).
Additionally, appellate courts have recognized the right of the Commonwealth
to appeal several types of non-evidentiary pre-trial orders under Rule 311.
See
Woodard, supra; see also Jones,
826 A.2d at 906 (“If the
Commonwealth has no opportunity to obtain appellate review of an adverse
pre-trial interlocutory order implicating double jeopardy concerns, such review
will never occur because the Commonwealth cannot try a defendant for a
second time if the first prosecution results in an acquittal.”); Commonwealth
v. Johnson,
669 A.2d 315 (Pa. 1995) (order transferring case from criminal
to juvenile court appealable under Rule 311);
Buonopane, supra (order
precluding Commonwealth from seeking death penalty appealable as of
right);7
Instantly, the Commonwealth included the requisite Rule 311(d)
certification that the trial court’s order has substantially handicapped or
terminated its prosecution of the case. See Notice of Appeal – Certification,
5/9/23, at 1. In its certification, the Commonwealth stated that the trial
____________________________________________
7 The Buonopane decision predates the promulgation of Rule 311 and,
consequently, does not address it. Nevertheless, Buonopane has been cited
favorably in the Rule 311 context. See Woodard, supra.
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court’s order “preclud[ed] the impaneling of a death-qualified jury,
substantially handicap[ping] the prosecution of [Zieglar] on the specified
charges, as it annuls the trial court’s duty in a first-degree murder trial to
impanel such a jury [as specified in the Judicial Code.]” See id. (citing 42
Pa.C.S.A. § 9711(a)(1)).
In our view, the trial court’s order effectively prohibits the
Commonwealth from exercising its discretion to seek the death penalty and,
therefore, the Commonwealth may properly appeal as of right pursuant to
Rule 311(d). See Buonopane, supra;Woodard, supra. Indeed, to hold
otherwise could impliedly permit the Commonwealth to seek relief under these
circumstances post-conviction, which could violate our double jeopardy
protections. See Jones,
826 A.2d at 906. Considering the foregoing, we
conclude that the Commonwealth’s appeal is properly before us.
In its first issue, the Commonwealth claims that the trial court violated
the Sentencing Code when it refused to allow voir dire questions pertaining to
the death penalty. See Commonwealth’s Brief, at 6-23. The Commonwealth
asserts that 42 Pa.C.S.A. § 9711(a)(1) and Pa.R.Crim.P. 802, 810, and
631(F), when read together, compel a trial court to conduct voir dire
questioning when the Commonwealth has satisfied the aggravated factors
requirements of Rule 802 and subsections 9711(a)(1) and (d). See
Commonwealth’s Brief, at 6-23. The Commonwealth further argues that it
filed the requisite Rule 802 Notice and listed five aggravating factors, as
required by law to exercise its discretion to seek the death penalty. See id.
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Therefore, the Commonwealth contends that the trial court’s refusal to allow
voir dire questions pertaining to the death penalty constitutes an error of law
where the relevant law compels the trial court to conduct voir dire on death
penalty questions. See id. at 21-23. After review, we agree.
First, we must determine the applicable standard of review. We begin
by observing that our Supreme Court has previously stated that a
“prosecutor’s decision to seek the death penalty is limited by the confines of
[s]ection 9711[.]” Commonwealth v. Chamberlain, 30 A.3d 381, 425 (Pa.
2011). Indeed, our Supreme Court has reaffirmed that the legislature,
pursuant to section 9711, has determined that the appropriateness of the
death penalty is “solely a function of the jury.” 8 Buck,
709 A.2d at 895-97
(citing and reaffirming Com. ex rel. Fitzpatrick v. Bullock,
370 A.2d 309
(Pa. 1977)).9 In Buck, the Court held that section 9711 “continues to provide
that the jury shall act as the factfinder, weigh evidence of aggravating
and mitigating circumstances[,] and determine the appropriate
sentence in a capital case.” Buck,
709 A.2d at 896 (citing 42 Pa.C.S.A. §§
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8 We note that, under Pennsylvania law, a capital defendant may waive the
impaneling of a jury for the sentencing phase. See 42 Pa.C.S.A. § 9711(b)
(providing capital defendant may waive impaneling of capital jury, in which
case trial court shall hear evidence and determine penalty).
9 In Bullock, our Supreme Court interpreted a previous version of the
Sentencing Code and determined that a trial court may not prevent the
Commonwealth from seeking the death penalty where the Commonwealth has
met the statutory requirements. See Bullock,
370 A.2d at 313-14. Further,
the Court concluded that the appropriateness of the death penalty was solely
for the jury to determine, as prescribed by the legislature. See
id.
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9711(a)(1), (c)(1)(iv), (f)(1), and (g)) (emphasis added). Additionally, the
Court acknowledged that the only notable difference in section 9711, following
Bullock, is that the Commonwealth is now required to provide notice of its
intent to seek the death penalty at, or prior to, arraignment. See Buck, 709
A.2d at 896.
Further, “the prosecutor possesses the initial discretion regarding
whether to seek the death penalty in a murder prosecution.” Id. (citing
Commonwealth v. DeHart,
516 A.2d 656 (Pa. 1986)). This Court has made
clear it is the prosecutor’s discretion, not that of the trial court. See
Buonopane, supra (trial court has no authority to review prosecutor’s
alleged aggravating factors pre-trial).
Moreover, we observe that, where the legislature has granted the
prosecutor discretionary powers, the trial court may review those powers only
if the legislature has expressly granted the court authority to review them.
See id. at 684; see also
Bullock, supra (absent pertinent statute
empowering trial court to review pre-trial procedure, there was no authority
for such action); see also Commonwealth v. Johnson,
487 A.2d 1320 (Pa.
1985) (interpreting 42 Pa.C.S.A. § 5947 and determining where legislature
granted district attorney sole discretion over immunity, trial court had no
discretion or authority to deny prosecutor’s request for grant of immunity).
Our review of the foregoing leads us to the inevitable conclusion that
whether a trial court may deny a prosecutor’s ability to seek the death penalty
is a question of law, for which our standard of review is de novo, and our
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scope of review is plenary. See In re Wilson, 879 A.2d 199, 214 (Pa. Super.
2005) (“As with all questions of law, the appellate standard of review is de
novo, and the appellate scope of review is plenary.”).
Regarding the process of voir dire for capital juries, we provide the
following backdrop from our Rules of Criminal Procedure, which provide, in
relevant parts, as follows:
Notice of Aggravating Circumstances
The attorney for the Commonwealth shall file a Notice of
Aggravating Circumstances that the Commonwealth intends to
submit at the sentencing hearing and contemporaneously
provide the defendant with a copy of such Notice of Aggravating
Circumstances. Notice shall be filed at or before the time of
arraignment, unless the attorney for the Commonwealth becomes
aware of the existence of an aggravating circumstance after
arraignment or the time for filing is extended by the court for
cause shown.
Comment: This rule provides for pre-trial disclosure of those
aggravating circumstances that the Commonwealth intends to
prove at the sentencing hearing. See Sentencing Code, 42
Pa.C.S.A. § 9711(d).
Pa.R.Crim.P. 802 & Cmt. (emphasis added).
Sentence
In all cases in which a verdict of murder of the first degree has
been returned, once a sentence has been determined, the court
may immediately impose that sentence.
Pa.R.Crim.P. 810.
Examinations and Challenges of Trial Jurors
(A) Voir dire of prospective trial jurors and prospective alternate
jurors shall be conducted, and the jurors shall be selected, in the
presence of a judge, unless the judge’s presence is waived by the
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attorney for the Commonwealth, the defense attorney, and the
defendant, with the judge’s consent.
…
(C) Upon completion of the oath, the judge shall instruct the
prospective jurors upon their duties and restrictions while
serving as jurors, and of any sanctions for violation of those
duties and restrictions, including those provided in [Pa.R.Crim.P.]
626(C) and [] 627.
…
(F) In capital cases, the individual voir dire method must be used,
unless the defendant waives that alternative[.]
(1) Individual Voir Dire and Challenge System
(a) Voir dire of prospective jurors shall be conducted
individually and may be conducted beyond the hearing
and presence of other jurors.
(b) Challenges, both peremptory and for cause, shall
be exercised alternately, beginning with the attorney
for the Commonwealth, until all jurors are chosen.
Challenges shall be exercised immediately after the
prospective juror is examined. Once accepted by all
parties, a prospective juror shall not be removed by
peremptory challenge. Without declaring a mistrial, a
judge may allow a challenge for cause at any time
before the jury begins to deliberate, provided
sufficient alternates have been selected, or the
defendant consents to be tried by a jury of fewer than
12, pursuant to Rule 641.
…
Comment: This rule applies to all cases, regardless of potential
sentence. . . .
If Alternative (F)(1) is used, examination continues until all
peremptory challenges are exhausted or until 12 jurors and 2
alternates are accepted. Challenges must be exercised after the
prospective juror is questioned. In capital cases, only
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Alternative (F)(1) may be used unless affirmatively waived by
all defendants and the Commonwealth, with the approval of the
trial judge.
Pa.R.Crim.P. 631(A), (C), (F) & Cmt. (emphasis added).
Additionally, the Sentencing Code provides:
§ 9711. Sentencing procedure for murder of the first
degree
(a) Procedure in jury trials.--
(1) After a verdict of murder of the first degree is
recorded and before the jury is discharged, the court
shall conduct a separate sentencing hearing in which
the jury shall determine whether the defendant shall
be sentenced to death or life imprisonment.
…
(c) Instructions to jury.--
(1) Before the jury retires to consider the sentencing
verdict, the court shall instruct the jury on the
following matters:
(i) The aggravating circumstances specified in
subsection (d) as to which there is some
evidence.
(ii) The mitigating circumstances specified in
subsection (e) as to which there is some
evidence.
(iii) Aggravating circumstances must be proved
by the Commonwealth beyond a reasonable
doubt; mitigating circumstances must be
proved by the defendant by a preponderance of
the evidence.
(iv) The verdict must be a sentence of death if
the jury unanimously finds at least one
aggravating circumstance specified in
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subsection (d) and no mitigating circumstance
or if the jury unanimously finds one or more
aggravating circumstances which outweigh any
mitigating circumstances. The verdict must be
a sentence of life imprisonment in all other
cases.
(v) The court may, in its discretion, discharge
the jury if it is of the opinion that further
deliberation will not result in a unanimous
agreement as to the sentence, in which case the
court shall sentence the defendant to life
imprisonment.
(2) The court shall instruct the jury that if it finds at
least one aggravating circumstance and at least one
mitigating circumstance, it shall consider, in weighing
the aggravating and mitigating circumstances, any
evidence presented about the victim and about the
impact of the murder on the victim’s family. The court
shall also instruct the jury on any other matter that
may be just and proper under the circumstances.
(d) Aggravating circumstances.-- Aggravating
circumstances shall be limited to the following:
…
(5) The victim was a prosecution witness to a murder
or other felony committed by the defendant and was
killed for the purpose of preventing his testimony
against the defendant in any grand jury or criminal
proceeding involving such offenses.
(6) The defendant committed a killing while in the
perpetration of a felony.
(7) In the commission of the offense[,] the defendant
knowingly created a grave risk of death to another
person in addition to the victim of the offense.
…
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(9) The defendant has a significant history of felony
convictions involving the use or threat of violence to
the person.
…
(18) At the time of the killing[,] the defendant was
subject to a court order restricting in any way the
defendant’s behavior toward the victim pursuant to 23
Pa.C.S.[A.] Ch. 61 (relating to protection from abuse)
or any other order of a court of common pleas or of
the minor judiciary designed in whole or in part to
protect the victim from the defendant.
…
(f) Sentencing verdict by the jury.--
(1) After hearing all the evidence and receiving the
instructions from the court, the jury shall deliberate
and render a sentencing verdict.
42 Pa.C.S.A. §§ 9711(a)(1), (c)(1)-(2), (d)-(f)(1) (emphasis added).
In sum, the above rules and statute require that, to seek the death
penalty, the Commonwealth shall file a compliant notice at or before the time
of the arraignment. See Pa.R.Crim.P. 802. The Commonwealth’s notice shall
contain at least one aggravating factor pursuant to section 9711(d). See
Pa.R.Crim.P. 802; 42 Pa.C.S.A. § 9711(d). Additionally, the trial court and
the parties shall use the “Individual Voir Dire and Challenge System” set forth
in Rule 631. See Pa.R.Crim.P. 631(F)(1), Cmt. Further, if the defendant is
found guilty, the same jury shall sentence the defendant to either death or
life imprisonment. See Pa.R.Crim.P. 810; 42 Pa.C.S.A. §§ 9711(a), (f); see
also Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013) (reiterating
section 9711 requires “the same jury which renders the verdict of murder in
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the first degree is the same jury which is to determine whether the sentence
is to be death or life imprisonment”).
We further observe that there is nothing in section 9711, or any other
law that we are aware of, that allows the trial court to deny the
Commonwealth’s ability to seek the death penalty. See Bullock, supra; see
also
Buonopane, supra. Indeed, as we stated supra, our Supreme Court
has held that the current version of section 9711 continues to provide that the
jury is the sole factfinder and arbiter of death in a capital case. See
Buck,
supra.
Instantly, the trial court has denied the Commonwealth’s ability to
pursue the death penalty.10 See Order, 4/5/23, at 1-2. The Commonwealth
filed the requisite Notice and invoked five of the section 9711(d) aggravating
factors. Thus, as a matter of law, the parties and trial court were required to
use the Individual Voir Dire and Challenge System, pursuant to Rule
631(F)(1), to death- and life-qualify the jury.11 See Pa.R.Crim.P. 802; 42
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10 We note that, although Zieglar’s November 6, 2022 response requested the
factual underpinnings of the aggravated factors listed in the Commonwealth’s
Notice, Zieglar has not formally challenged the Notice itself. See Trial Court
Opinion, 6/28/23, at 4 (concluding Zieglar has failed to formally challenge
Commonwealth’s Notice). Consequently, Zieglar’s request for factual
underpinnings does not change our analysis.
11 In our review of the foregoing, we conclude that, under these
circumstances, it is statutorily mandated that the jury be both “death-qualified” and “life-qualified.” “Death qualification” is the process by which
counsel or the court identifies and excludes prospective jurors who stated that
“they would not under any circumstances vote for the death penalty.”
(Footnote Continued Next Page)
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Pa.C.S.A. § 9711(d); Pa.R.Crim.P. 631(F); Pa.R.Crim.P. 810. Because the
trial court denied all voir dire questions relating to death and life qualification,
denied the parties the ability to death or life-qualify the jury, and expressly
stated “there will be no jury deliberations as to sentence,” the trial court has
usurped the Commonwealth’s authority to seek the death penalty. See Order,
4/5/23, at 1-2.
As our review reveals, the trial court has acted outside the parameters
of the law. See 42 Pa.C.S.A. § 9711(a), (d); see also Bullock, supra. The
legislature has not granted trial courts the authority to intrude into the
Commonwealth’s exercise of discretion in this realm and, consequently, we
reaffirm that a trial court cannot exercise authority over the Commonwealth’s
discretion to seek the death penalty pre-trial, even where the Governor has
imposed a moratorium on imposition of the death penalty.12 See Bullock,
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Commonwealth v. Colson,
490 A.2d 811, 817 (Pa. 1985). “Life
qualification,” on the other hand, refers to the process by which counsel or
the court identifies and excludes prospective jurors who have a fixed opinion
that a sentence of death should always be imposed for a conviction of first-degree murder. See Commonwealth v. Keaton,
729 A.2d 529, 542 n.9
(Pa. 1999). To conclude otherwise would permit a trial court to unlawfully
reject the Commonwealth’s authority to seek the death penalty.
12 In light of our disposition, we need not address the Commonwealth’s second
claim pertaining to separation of powers. See Commonwealth v.
Humphrey,
283 A.3d 275, 295 n.21 (Pa. 2022) (declining to address
constitutional questions where issue had been resolved on statutory grounds);
see also In re Fiori,
673 A.2d 905, 909 (Pa. 1996) (“sound tenet of
jurisprudence that courts should avoid constitutional issues when the issue at
hand may be decided upon other grounds”).
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supra; Johnson, supra. Accordingly, we reverse the trial court’s order and
remand for further proceedings.13
____________________________________________
13 Furthermore, we observe that the trial court relies upon Caldwell for the
premise that it is unable to impanel a death jury. The trial court contends
that the moratorium, imposed by Governor Shapiro as the chief executive of
the Commonwealth, removes the decision regarding the death sentence from
every potential juror in violation of Caldwell. See Trial Court Opinion,
6/28/23, at 9, 18-21. Additionally, the trial court determined that, in light of
the conflict between Governor Shapiro’s moratorium and Caldwell, it would
be impossible to appoint a jury that could properly consider the death penalty.
We find this rationale to be premature. First, the citizens of this
Commonwealth are not presumptively aware of Governor Shapiro’s
moratorium. Furthermore, even if potential jurors were aware, then the
proper forum to discover that alleged taint would be at voir dire. Here, as
we discussed, the trial court’s order prevents the parties from engaging in voir
dire proceedings related to the death penalty, which would make it impossible
to discern whether any taint exists or what effect, if any, it may have on
potential jurors. Thus, the record before us is underdeveloped for review of
this argument.
We further observe that Governor Shapiro’s moratorium is temporary in
nature. Under the laws of this Commonwealth, Governor Shapiro will not hold
his position in perpetuity and, thus, we cannot agree that the moratorium will
presumptively taint potential jurors in making the difficult determination of
death versus life. Furthermore, we note that Governor Shapiro stated that he
was “granting a reprieve,” not a pardon or commutation of sentence. See
Commonwealth v. Williams, 129 A.3d 1199, 1217 (Pa. 2015) (“reprieve as
set forth in Article IV, Section 9(a) means the temporary suspension of the
execution of a sentence”) (emphasis added, quotation marks omitted).
Consequently, any reprieve granted by Governor Shapiro does not remove the
decision of death from the jury, but merely delays the implementation of any
such decision. Moreover, despite Governor Shapiro’s moratorium, the
Commonwealth’s ability to pursue the death penalty is still the law. See 42
Pa.C.S.A. § 9711.
Finally, we presume that our legislature is aware of Governor Shapiro’s
moratorium, just as the legislature was aware of then-Governor Wolf’s
moratorium. Nevertheless, the legislature has not amended our death penalty
(Footnote Continued Next Page)
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Order reversed. Case remanded. Jurisdiction relinquished.
DATE: 08/21/2024
____________________________________________
laws. Additionally, neither our Supreme Court nor the United States Supreme
Court has declared the death penalty to be unconstitutional. Consequently,
unless and until either the law changes or the death penalty is determined to
be unconstitutional, this Court cannot affirm the trial court’s order and we
consider the Caldwell argument to be unpersuasive and premature.
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