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Commonwealth v. Ogrod12/30/2003
ircumstances do not need to be unanimous. Each of you is free to regard a particular mitigating circumstance as present, despite what other jurors may believe. A defendant must have the full benefit of any mitigating circumstance, and each juror is permitted to consider and to give effect to mitigating evidence when deciding the ultimate question, whether to vote for a sentence of life or death. After considering any unanimous aggravating circumstances and as many mitigating circumstances as you individually may find, if you decide at least one aggravating circumstance and no mitigating circumstances exist, or if you unanimously find that one or more aggravating circumstances outweigh any mitigating circumstances, the verdict must be death. In all other cases, the verdict must be a sentence of life imprisonment. If you do not agree on one or the other of these findings, a sentence of life must be imposed.
N.T. 10/9/96 at 97. Because the trial court made it clear that any one juror could find the existence of a mitigating circumstance and that any mitigating circumstances could outweigh aggravating circumstances, this claim of error and its accompanying claim of ineffective assistance of counsel are without merit and do not entitle Appellant to a new sentencing hearing.
Scope of Proper Rebuttal of Mitigation Evidence
Appellant claims that the manner in which the prosecution rebutted the mitigation evidence of Appellant violated his due process rights. It is true that if the prosecution were permitted to present evidence that was unduly prejudicial such that it would prevent the jury from rendering a true verdict, a new sentencing hearing would be appropriate. Ligons, 773 A.2d at 1238. However, the cross-examination and closing statement of the prosecution during the sentencing hearing were well within evidentiary and constitutional limits. It bears repeating that:
mplicit in the fact that the statute assigns to the defendant the burden of proving mitigation circumstances by a preponderance of evidence is the understanding that the jury is to assess the evidence for credibility. It must be left open for the Commonwealth to challenge the veracity of facts asserted and the credibility of the person asserting those facts, whether that person is a witness or the defendant.
Commonwealth v. Abu-Jamal, 555 A.2d at 858. The Commonwealth properly challenged the mitigation evidence of Appellant. Certainly, the cross-examination or closing statement of the prosecutor did not improperly prejudice Appellant. Jones, 683 A.2d at 1199.
Joint Call to Prison Regarding the Dosage of Appellant's Medication
Appellant asserts that he is entitled to an evidentiary hearing to determine whether the prosecutor directed prison officials to change Appellant's medication so that he did not appear to be so subdued as to be incapable of committing the crime. No such hearing is warranted. Apparently, both the prosecutor and Appellant made calls to prison officials. The prosecutor merely observed that at the first trial Appellant appeared to be overmedicated. Trial counsel for the defendant testified at the post-sentence hearing that the level of medication was "not a factor in determining whether the defendant should or should not testify[.]" N.T. 12/20/99 at 40-41. Additionally, defense counsel admitted that he believed that "Mr. Ogrod was receiving his medication consistent with good medical practice and that it was not designed in order to make him appeared to be less than competent." Id. Thus, this claim and the associated ineffective assistance of counsel claim lack merit.
Proportionality Review
Although Appellant filed his
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