Stephen Zappala, Sr.

“ In light of the court's repeated instructions to the jury that the arguments of counsel were neither evidence nor statements of the law to be followed, and the instructions on the Commonwealth's burden of proving all elements of the crime charged beyond a reasonable doubt, we are not persuaded that the isolated comments now complained of deprived the appellant of a fair trial. We note, however, that a similar argument directed against the prosecutor's comments at the penalty phase of the trial is subject to a different standard of review and requires separate analysis, which we now undertake. ”

“ We find no reason in law or logic why the defendant's presentation of evidence in support of his claim that life imprisonment is the appropriate sentence should be shielded from the testing for truthfulness and reliability that is accomplished by cross-examination. ”

“ Mississippi, the United States Supreme Court held that a death sentence had to be set aside where the prosecutor had suggested to the jurors that they did not bear ultimate responsibility for determining the appropriateness of a death sentence since such a sentence would be reviewed by the state supreme court. The Court's holding was based on the Eighth Amendment's heightened need for reliability in the determination that death is the appropriate punishment in a particular case. ”

“ The appellant had been granted permission to represent himself, and back-up counsel had been appointed. After the first two days of voir dire, however, the trial court determined that the appellant's questioning was unnecessarily lengthy and often improper. The judge also observed that many of the venirepersons were "visibly shaken and uncomfortable". Concerned that a fair and impartial jury might not be possible to achieve by such laborious and disquieting procedures, the court took upon itself the task of posing all questions to the prospective jurors. ”

“ This points up the second flaw in the appellant's reasoning, reliance on the right to allocution as developed at common law. Whatever force the common law of allocution has with respect to other criminal cases, the General Assembly has abrogated that law and replaced it with statutory law devised specifically for first degree murder cases. The legislature has provided that a sentencing hearing is required at which evidence may be presented to the jury, or the judge as the case may be. ”

“ The right of self-representation is not, as the appellant would have it, an absolute [A852] right for a defendant to proceed as he sees fit. A defendant appearing pro se is subject to the same rules of procedure as is a counseled defendant; he has no greater right to be heard than he would have if he were represented by an attorney.
[P201] Rule of Criminal Procedure 1106 (d) provides that " [t] he judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself [sic] conduct the examination." ”

“ However, because what is said in one context can take on different meanings in another, we must examine what the prosecutor said, in the circumstances of this case, to determine if it created a risk that this jury's deliberations and decision in favor of the death penalty were tainted by impermissible considerations.
The comments that the appellant complains of as improper under the rule of Caldwell are as follows:
Ladies and gentlemen, you are not asked to kill anybody. You are asked to follow the law. ”

“ That the appellant is a member of a cognizable racial group and that the prosecutor used peremptory challenges to remove some members of the appellant's race are facts so obvious to anyone even marginally acquainted with this case as to cause embarrassment at the need to set them out in writing. ”

“ Punishing a person for expressing his views or for associating with certain people is substantially different from allowing his statements to be used for impeachment or to be considered as evidence of his character where that character is a relevant inquiry. ”

“ Defense counsel bluntly argued to the jurors that if they imposed a death sentence that ultimately was carried out, and at a later time the United States Supreme Court again declared capital punishment unconstitutional, their sentence would have been illegal and thus they would have participated in the "murder" of the appellant. ”

“ Under the first interpretation of Rule 1108, the peremptory challenge of Courchain would have been allowed, the appellant thereafter having no peremptory challenges remaining for use in the alternate selection process.↑ The appellant has not challenged the sentence of two and one-half to five years' imprisonment imposed on the conviction of possession of an instrument of crime. ”

“ The Commonwealth properly observes, however, that even where retroactive application is required, it is only appropriate where the issue has been preserved. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982) ; see also, Shea v. Louisiana, 470 U.S. 51, 58, n. 4, 105 S.Ct. 1065, 1070, n. 4, 84 L.Ed.2d 38 (1985) ( Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) retroactively applicable to cases on direct review, "subject, of course, to established principles of waiver, harmless error, and the like.") ”

“ We have, at times, indicated that because of the extreme, indeed irreversible, nature of the death penalty, it may be appropriate to relax application of the waiver rule and address the merits of arguments raised for the first time in the direct appeal to this Court. Commonwealth v. ”

“ Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (transcript demonstrates juror's unequivocal opposition to death penalty, inability to impose it even under instructions from court) ; (3) that by incorporating the trial record into the sentencing proceeding, the inflammatory cross-examination of defense witness Sanchez was placed before the jury, introducing an unacceptable degree of unreliability (cross-examination was proper [see text, infra, at 14-16] , comment was limited) ”

“ Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) , as setting the standard for reviewing claims of improper use of peremptories, and cites to portions of the record that, he argues, meet that standard. ”