Commonwealth v. Natividad

¶1concurring and dissenting.

¶2I agree that Appellant’s claims of error regarding the guilt phase of this capital case do not entitle him to relief. I disagree, however, with the affirmance of Appellant’s sentence of death because victim impact evidence was unconstitutionally presented in the penalty phase of Appellant’s trial. For the reasons set forth in my dissenting opinion in Commonwealth v. Means, I would reverse Appellant’s sentence of death and remand to the common pleas court for a new penalty hearing.

¶3concurring and dissenting.

¶4I agree with the majority’s conclusion that the Commonwealth established sufficient evidence beyond a reasonable doubt to support Appellant’s conviction for first-degree mur*373der. I also concur with the majority’s analysis in denying Appellant’s claims of trial error. However, because I do not agree with the majority’s conclusions regarding the introduction of victim impact testimony in the penalty phase of Appellant’s trial, I must respectfully dissent from that portion of the majority opinion affirming Appellant’s sentence of death. Accordingly, I would reverse and remand this case to the trial court for a new penalty hearing.

¶5For the reasons more fully explained in my dissenting opinion in Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001), I believe that the statutory provisions governing victim impact evidence in the penalty phase of capital cases, 42 Pa.C.S. § 9711(a)(2) & (c)(2), violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. While 1 do not dispute that victim impact evidence may be relevant in sentencing capital defendants, I take issue with the circumstances and procedures under which Commonwealth juries are to consider victim impact testimony when deciding whether to impose a death sentence. Accordingly, I believe that the trial court in the instant case erred in admitting victim impact testimony and in charging the jury on the issue of victim impact evidence.

¶6In addition, I cannot agree with the majority’s conclusion that, under the specific facts of this case, Appellant received adequate notice of the Commonwealth’s intent to introduce victim impact testimony at the penalty phase. The majority places great weight on the fact that Meanswas not decided at the time of Appellant’s trial. I fail to see how that fact is relevant to the issue of whether Appellant’s constitutional rights were violated. The majority notes that “the better practice is to require notice of the intent to introduce victim impact testimony prior to trial.” Majority Opinion, 565 Pa. at 366, 773 A.2d at 178. In my view, however, prior notice is not just the better practice, but a constitutional due process requirement. The majority states that, in the future, the Commonwealth must notify a defendant prior to trial if it intends to use victim impact testimony at the penalty hearing. Inexplicably, however, the majority fails to apply that require*374ment to the instant case and baldly declares that giving Appellant “more than twenty-four hours” notice was sufficient.1 Contrary to the majority, I do not believe that giving Appellant little more than one day’s notice that the Commonwealth would be introducing victim impact testimony satisfies due process requirements, particularly in a capital sentencing proceeding where the life of the defendant hangs in the balance. Furthermore, by concluding that notice was sufficient in the instant case, the majority seriously undermines its mandate that future capital defendants must be notified prior to trial of the Commonwealth’s intent to introduce victim impact evidence. Thus, I dissent from that part of the majority opinion affirming Appellant’s sentence of death.