Commonwealth v. Fahy

645 A.2d 199, 537 Pa. 533, 1994 Pa. LEXIS 245

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1994
• Docket: 25 Capital Appeal Docket
• Status: Published

Opinions

OPINION OF THE COURT

CASTILLE, Justice.

The sole issue raised in this direct appeal from the denial of the Appellant’s petition filed pursuant to the Post Conviction Relief Act (the “PCRA”) 42 Pa.C.S. § 9541, et seq., is whether the Appellant is entitled to a new sentencing hearing because his trial counsel failed to object to a jury instruction regarding the aggravating circumstance of the killing of another committed by means of torture which did not provide a definition of the term “torture.” For the reasons set forth below, we find that he is not so entitled and we affirm the ruling of the PCRA court upholding the Appellant’s sentence of death.

Following a 1983 jury trial in the Philadelphia County Court of Common Pleas, Appellant was convicted of first-degree murder, rape, burglary and possession of an instrument of crime and sentenced to death for his killing and torture of twelve-year-old Nicky Caserta in 1981.¹

Pursuant to 42 Pa.C.S.A. § 9711(d), the jury found three aggravating circumstances: a slaying during the perpetration of a felony,² a significant history of convictions for violent felonies³ and a homicide committed by means of torture.⁴ Pursuant to 42 Pa.C.S.A. § 9711(e), the jury also found two mitigating circumstances: extreme mental or emotional disturbance,⁵ and impaired capacity to appreciate the criminality of Ms conduct or to conform Ms conduct to the requirements of law.⁶ Post-verdict motions were heard and demed.

On direct appeal, this Court sustained Appellant’s conviction and judgment of sentence and found that the evidence sufficiently supported his conviction and the jury’s finding of aggravating circumstances.⁷ Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986). Appellant filed a pro se Post Conviction Hearing Act (PCHA) petition in 1987 alleging several errors. Relief was denied without prejudice for procedural errors. In 1989, counsel was appointed to file a supplemental PCHA petition on a prior rape conviction but not for the murder conviction. The Governor signed Appellant’s death warrant in November 1991, scheduling the execution for the week of January 13, 1992. On January 7, 1992, however, Appellant retained counsel who in turn filed a Petition for Stay of Execution and Appointment of Counsel with tMs Court. Specifically, counsel asserted, as the basis for the stay, that the applicability of the finding of torture in tMs case was erroneous.

On January 13, 1992, tMs Court granted the Appellant’s petition and remanded the case back to the PMladelpMa County Court of Common Pleas for reconsideration of the torture issue pursuant to the standards articulated in Commonwealth v. Caldwell, 516 Pa. 441, 532 A.2d 813 (1987). At the PCRA hearing held pursuant to the remand order, Appellant argued that the death penalty was arbitrarily imposed because the jury improperly found the aggravating circumstance of torture because the trial court failed to define “torture” for the jury and that trial counsel was ineffective for failing to object to the inadequate charge in that regard. The PCRA court rejected Appellant’s argument and affirmed the sentence of death on the basis that this Court, pursuant to 42 Pa.C.S.A. § 9711(h), had already determined that the evidence was sufficient with regard to the aggravating circumstance of torture. Commonwealth v. Fahy, Nos. 2283-2289 (Phila.C.C.P. Dec. 8, 1992).

The sole issue now before this Court is whether the PCRA court erred in affirming the sentence of death because Appellant’s trial counsel did not request that the trial court define “torture” as an aggravating circumstance which requires a specific intent to commit torture separate from the specific intent to commit murder. The trial judge’s jury charge in this case informed the jurors that a list of possible aggravating circumstances was included on the verdict sheet on which they were to indicate whether they believed such circumstances applied to the Appellant’s actions. No definition of “torture” was given by the trial judge, nor was a definition requested by defense counsel. An instruction that specific intent to torture the victim was needed in order to properly find torture as an aggravating circumstance was not required by this Court at the time.⁸ Without such an instruction, Appellant claims that the instruction was prejudicially deficient and violative of his rights to the due process of law. He also claims that trial counsel was ineffective for failing to object to such a deficient instruction. For the reasons set forth below, we affirm the ruling of the PCRA court upholding the Appellant’s sentence of death.

Section 9711(d)(8) of the Sentencing Code provides that the death penalty may be imposed where the jury finds that the “offense was committed by means of torture.” 42 Pa.C.S. Section 9711(d)(8). This case illustrates perhaps the clearest example of a factual situation that the legislature intended to serve as an aggravating circumstance of torture sufficient to impose the death penalty. In that regard, it is precisely because the facts of this case are so egregious that we are able to conclude that there was no error in trial counsel’s failure to request a definition of the term “torture” for the jury because, pursuant to any conceivable definition of the term, Nicky Caserta was tortured to her death.

Indeed, the evidence produced at trial showed that the final hours of Nicky Caserta’s life were marked by unspeakable horrors, inflicted to satiate the sadistic appetite of the Appellant. She was beaten, raped, mutilated, hung, choked, kicked, strangled and, finally, stabbed multiple times until life finally ebbed from her small body.⁹ From a vantage point across the street, the Appellant watched as Nicky’s mother left for work on the morning of January 9, 1981. He proceeded across the street and was let in the Caserta home by Nicky. The Appellant was well known to Nicky because he and Nicky’s aunt were living together nearby. The Appellant asked Nicky to go upstairs and look for a pair of pliers for him. As soon as Nicky went up the steps, he locked the front door and followed her. Appellant then seized her, stuffed tissue in her mouth, wrapped a sweater around her face, and forced her to disrobe. Then, he raped her vaginally and anally. The injuries indicate that Appellant also violated his victim with some object that ripped the tissue of her genitals from the interior of the vagina to her rectum. Appellant then allowed the victim to dress, creating a cruelly false impression that the ordeal had ended. When Nicky, in a state of dazed terror, put her parochial school uniform on backwards, Appellant became enraged. He grabbed her and dragged her downstairs to the basement with his free hand around her mouth to stifle her cries. In the basement, while chanting, “Die, bitch,” Appellant tied a series of ligatures around the girl’s throat and watched her struggle for breath. He repeatedly choked Nicky to a certain point and then released his hold, allowing her to fight for breath again. At one point he apparently suspended the girl from a rafter by her neck. Finally, apparently having tired of this depravity, Appellant secured a kitchen knife and stabbed Nicky 18 times in the chest, to her death, with such force that he broke off part of the blade finally causing her death.

Appellant alleges that his counsel was ineffective for failing to request a definition of the term “torture” because if the jury had been given and guided by such an instruction, it might not have found that he tortured his victim. Essentially, Appellant’s claim amounts merely to the argument that his trial counsel was ineffective for failing to assert that the evidence was insufficient to support the jury’s finding of torture. We have long maintained that a criminal defendant’s trial counsel cannot be held ineffective for failing to assert a meritless claim. Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119 (1993). Here, when this Court reviewed Appellant’s direct appeal for the sufficiency of the evidence supporting the finding of the aggravating circumstance of torture and sustained Appellant’s conviction and judgment of the sentence of death, we found, as a matter of law, that the jury’s finding of torture was sufficiently supported by the trial evidence. Fahy, supra. See also 42 Pa.C.S.A. § 9711(h)(3)(h) (“[t]he Supreme Court shall affirm the sentence of death unless it determines that the evidence fails to support the finding of at least one aggravating circumstance.... ”). Because of this Court’s specific review and verification of the sufficiency of the evidence, Appellant’s ineffectiveness claim fails because there is utterly no merit to his underlying claim that counsel was ineffective for failing to assert that the evidence supporting the jury’s finding of torture was legally insufficient.

Further, this Court has previously found that the term “torture” as an aggravating circumstance is not constitutionally vague and that its meaning is “a matter of common knowledge.” Nelson, supra; Commonwealth v. Pursell, 508 Pa. 212, 238, 495 A.2d 183, 196 (1985). In Pursell, this Court held that the general meaning of “torture” was the “infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious, or cruel manifesting exceptional depravity.” 508 Pa. at 239, 495 A.2d at 196. Nevertheless, despite the apparent unambiguity of the term “torture,” the Appellant contends that a new sentencing hearing is required because his trial attorney did not ask that the jury be instructed that to find “torture” as an aggravating circumstance, it must first find that Appellant additionally had to have the specific intent to inflict torture. Notably, it was not until Nelson, supra, approximately four years after Appellant’s conviction, that this Court decided that juries required guidance that “torture,” as an aggravating circumstance, meant that the accused’s criminal acts must have a separate specific intent to cause pain and suffering in addition to the intent to kill.¹⁰ Id., 514 Pa. at 279, 523 A.2d at 737.

In the instant case, the trial court informed the jury that the aggravating circumstances were listed on the verdict sheet and that they were to indicate thereon whether they believed such circumstances applied to Appellant’s actions. While “torture” was not defined by the court, “torture” and “kill” are two separate and commonly understood acts.¹¹ The Appellant would have this Court assume that the jury, composed of twelve adults chosen from the community, nevertheless was incapable of applying the commonly understood meaning of the term “torture” in order to have found that “torture” existed as an aggravating circumstance or that Appellant intended his torture.¹² Given the evidence in this case, there is no question that the jury was provided with ample facts to conclude beyond a reasonable doubt that Appellant intended to torture his victim as well as to kill her. The evidence clearly indicated that Appellant inflicted a considerable amount of pain and suffering more than that necessary to bring about her death and which was unnecessarily heinous, atrocious, or cruel manifesting exceptional depravity. See Pursell, supra. Accordingly, from the nature of the acts themselves one can logically infer that the Appellant intended to torture his victim.¹³

Appellant’s rape, vaginal mutilation and strangulation of his young victim were unquestionably committed with the intent to cause pain and suffering in addition to his final act of stabbing the victim eighteen times, which itself was performed with the clear intent to kill.¹⁴

Further, given that this Court did not require additional direction regarding the term “torture” until several years after Appellant’s conviction, it is difficult to fathom how trial counsel was ineffective for not requesting an instruction regarding a term which this very Court had at the time of trial found to be commonly understood. In order for counsel to be ineffective, the appellate court must find that the attorney did not have a reasonable basis for his or her omission or act. Here, trial counsel had a reasonable basis for not requesting further guidance since the term was and is so commonly understood. Commonwealth v. Jasper, 526 Pa. 497, 507, 587 A.2d 705 (1991) (trial counsel not ineffective for failing to request a jury instruction regarding the term “knowingly” during the penalty phase since term commonly understood); Commonwealth v. Proctor, 526 Pa. 246, 256, 585 A.2d 454, 459 (1991) (“It is reasonable for counsel to decline to ... enter objections which are ... unsupported by law existing at the time of the proceedings”).¹⁵ Moreover, had a more detailed instruction been provided regarding the term “torture,” its impact would have been only to highlight the already-obvious egregious and depraved acts which the jury found as an aggravating circumstance amounting to “torture.”

This Court has repeatedly held that a criminal defendant’s ineffectiveness claim must also fail if he cannot show that, absent his counsel’s alleged ineffectiveness, the result in his case would have been different. Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993) (citation omitted). Given the overwhelming evidence in this case, the Appellant has utterly failed to demonstrate how the verdict in this case would have been different but for his trial counsel’s purported omission. Viewed under these well-established standards, Appellant’s claim that trial counsel was ineffective must fail.

In this case, the jury applied its common understanding of the word “torture” to the facts it found to be credible in finding Appellant guilty of first-degree murder and to find that Appellant, indeed, had tortured young Nicky Caserta. There is no merit, then, to this Appellant’s claim that his counsel was ineffective and that a remand for a new sentencing hearing is required, now raised for the first time over ten years after Appellant’s conviction and sentence to death for his heinous acts.

This Court’s January 13,1992 Stay of Execution is therefore vacated and Appellant’s conviction and his sentence of death are affirmed.

NIX, C.J., and MONTEMURO, Senior Justice, file concurring opinions. ZAPPALA and CAPPY, JJ., file dissenting opinions. MONTEMURO, J., is sitting by designation as Senior Justice pursuant to Judicial Assignment Docket No. 94 R1801, due to the unavailability of LARSEN, J., see No. 127 Judicial Administration Docket No. 1, filed October 28, 1993.

1 . The Appellant was also sentenced to ten to twenty years on the burglary conviction, two and one-half to five years on the weapons conviction and ten to twenty years on the rape conviction. The burglary and rape sentences were to run concurrently with each other but consecutively to the sentence for the murder conviction. The weapons sentence was to run consecutively to the burglary and rape sentences.

2 . 42 Pa.C.S. § 9711(d)(6).

3 . 42 Pa.C.S. § 9711(d)(9).

4 . 42 Pa.C.S. § 9711(d)(8).

5 . 42 Pa.C.S. § 9711(e)(2).

6 . 42 Pa.C.S. § 9711(e)(3).

7 . This Court also found that (1) the evidence supported the finding that Appellant's confession was voluntary; (2) the evidence supported the finding that Appellant’s waiver of his constitutional rights was knowing and intelligent; (3) no prosecutorial misconduct arose at trial; (4) the aggravating circumstances portion of the death penalty statute was not unconstitutionally vague or overbroad; (5) the finding of substantial mental impairment does not preclude imposition of the death penalty; and (6) the Appellant’s death sentence was not disproportionately imposed.

8 . This Court did not require additional guidance regarding "torture” until Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 737 (1987), at which time we held that a jury charge on the aggravating circumstance of torture, which failed to convey to jurors the idea that a torture murderer, besides having intent to kill, has additional specific intent to inflict pain, suffering or both pain and suffering, was prejudicially deficient and, thus, required that the death sentence be vacated. The appellant’s trial was held in 1983, four years before the law changed.

9 . This recitation of the facts of the case summarizes the facts from this Court's opinion in Fahy, 512 Pa. at 301, 516 A.2d at 695 and from the Notes of Testimony at 485-558.

10 . For this reason, Commonwealth v. Caldwell, supra (the case pursuant to which the PCRA court was to re-examine the Appellant’s death sentence), is inapplicable to Appellant’s claim. In Caldwell, this Court found that there was insufficient evidence to support a finding of torture. The definition of torture was not contested—only the sufficiency of the evidence supporting the finding of torture was contested. Caldwell, then, does not dispose of the issue raised by Appellant herein; namely, that the failure of the trial court to define "torture” denied him, for trial counsel's failure to object, the effective assistance of counsel.

11 . “Kill” is defined as ”[t]o deprive of life; to destroy the life of an animal or person.” Black’s Law Dictionary, page 870 (6th Ed.1990). "Torture” is defined as "[t]o inflict intense pain to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure.” Id. at p. 1490.

12 . Indeed, the jury did not request any guidance during its deliberations as to what "torture” meant. Thus, there is no articulable basis upon which to assume that the jury was somehow unable to comprehend the plain meaning of the term. Because the facts which the jury in this case considered were so clearly dispositive of the concept of “torture,” this Court would divert the law down a very uncertain path should it now second-guess their sound determination.

13 . Further, in spite of the fact that there was no "specific intent to torture” instruction given to the jury in this case, it is well settled that specific intent may be proven from circumstances surrounding the event. Nelson, supra. Stated differently, if the facts of this case indicate that Appellant inflicted an amount of pain and suffering less than that necessary to bring about his victim’s death, then from the nature of the acts themselves one can logically infer that the Appellant intended to torture his victim.

14 . The circumstances surrounding Nicky’s death sufficiently proved that Appellant had specific intent to torture her. Let us not forget that part of the evidence before the jury during the penalty phase included Appellant’s testimony that "he had an inner compulsion to abuse young children sexually.” Fahy, 512 Pa. at 316, 516 A.2d at 698.

15 . Although conceding that it was not until this Court's decision in Nelson, supra, that the ever-evolving concept of due process subsumed the requirement of a definitional instruction of the term "torture,” the dissent makes the illogical argument that "[a]lthough counsel cannot be responsible for anticipating future developments in the law [i.e., Nelson ], he is surely responsible for assuring that his client receives due process.” Before Nelson, due process simply did not require such a definition. How the law is to reconcile the conflict inherent in this statement remains a mystery indeed.