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Commonwealth v. Ogrod12/30/2003
nies, the last for a two-year period up until his arrest in 1992. Id. at 57-61. The parties stipulated that Appellant had no previous criminal record.
The jury found one aggravating circumstance -- that the murder was committed during the perpetration of a felony -- and no mitigating circumstances. The jury set the penalty at death.
Victim Impact
Appellant asserts that during the penalty phase, the prosecution improperly presented victim impact testimony and referenced the impact of the crime on the family of Barbara Jean notwithstanding that the crime occurred approximately five months before the effective date of the statute that authorized the use of victim impact testimony. See 42 Pa.C.S. § 9711.
Appellant reasons that because the statute "applies only to sentences imposed for offenses that took place on or after its effective date[,]" it was error for the trial court to have permitted the presentation of victim impact testimony or to allow the prosecutor to comment on the effect of the crime on the victim's family. Brief of Appellant at 37 (citing Commonwealth v. Fisher, 681 A.2d 130, 145, n.7 (Pa. 1996)).
First, we address the issue of whether the Commonwealth presented victim impact testimony and then we turn to the comments of the prosecutor. It appears from the record that the prosecutor did not present any victim impact testimony at the penalty hearing and merely incorporated by reference the testimony from the guilt phase to show the aggravator. N.T. 10/9/96 at 8. Because the Commonwealth did not present victim impact testimony, the argument of Appellant that he was prejudiced by such testimony lacks merit.
With regard to comments by the prosecutor, Appellant alleges that victim impact testimony was used. The Commonwealth admits that the prosecutor, in her closing, noted that Appellant did not show any sympathy for the family of Barbara Jean. However, the Commonwealth claims that the comments of the prosecutor merely rebutted the testimony Appellant presented at the penalty hearing. Brief of the Commonwealth at 56. At the hearing, the prosecutor pointed out that Appellant did not express any remorse for what Barbara Jean and her family went through. N.T. 10/9/96 at 85. She stated that the claim of Appellant, that prison was sufficient punishment for his crime because, as a convicted child killer, he would be the lowest of the prison hierarchy, demonstrates that he only cared about how he has suffered, but did not consider what the child and her family went through. N.T. 10/9/96 at 61-62.
In Commonwealth v. Travaglia, 467 A.2d 288, 301 (Pa. 1983), we recognized that a single statement about lack of remorse was not a basis for granting a new sentencing hearing. We noted that " ad the prosecutor launched an extended tirade on this point, thereby focusing undue attention on the remorse factor, [the defendant's] claim of prejudice might have greater force." Id. In the instant case, the prosecutor's comments were limited. As we stated previously, the comments of a prosecutor will not entitle a defendant to a new sentencing hearing unless:
the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.
Commonwealth v. Ligons, 773 A.2d 1231, 1238 (Pa. 2001), cert. denied, 537 U.S. 827 (2002) (quotations and citations omitted). Indeed, in Ligons, we declined to grant a new trial notwithstanding that the prosecutor rejected the defendant's testimony that he had a difficult life and argued that the case was really about the victim and that, be
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