'Kill for Thrill' book details '79
spree in region
By Debra Duncan - Valley News Dispatch
March 22, 2009
The title of a new book, "Kill for
Thrill," likely will be understood by most longtime Western
The book recounts a brutal string of murders
committed by John Lesko and Michael Travaglia, who face the death
During the week after Christmas 1979, the two 19-year-old
friends, Travaglia of Washington Township and Lesko of Pittsburgh,
killed four people who crossed their paths -- in Apollo, Delmont and
Pittsburgh -- for money, or because they needed a vehicle, or simply for
"Kill for Thrill" was the term adopted by area
newspapers because there was no rhyme or reason to the murders.
It's also the title of a new book on the killing
Clearly, the book's author, Michael W. Sheetz, who
was raised in the Alle-Kiski Valley and was a part-time police officer
for Apollo, was haunted by the death of rookie Apollo police officer
Leonard C. Miller, 21.
Sheetz, 44, of Miami, grew up in Allegheny Township,
just 10 minutes from where Miller was killed. He attended Kiski Area
High School, the same school as Travaglia.
In 1984, four years after Miller was killed, Sheetz
was a part-time police officer in Apollo.
"My biggest motivator in writing this was every day I
went into that police station and saw the picture of Leonard Miller on
the wall," he said. "It just hit me how senseless this murder was.
"And I spent 20 years in law enforcement myself, so
there was a common bond there, too."
Sheetz moved to Florida in 1986. His partner was
Richard Murphy, who was police chief in Apollo when Miller was killed.
Sheetz never forgot Leonard Miller. Miller had only
been a full-time officer for three days when Travaglia and Lesko,
driving a stolen car and looking to rob a convenience store, sped by the
officer several times until he gave chase.
Miller had wanted to be a police officer since the
age of 4 and everyone in Apollo spoke highly of him.
Sheetz now is an assistant professor of criminal
justice and law at American InterContinental University near Miami. He
also is an attorney. His parents still live in the area, Ron Sheetz of
New Kensington and Carol Sue Nichols of Penn Hills.
Miller was the last and youngest victim that week.
First killed was Peter Levato, 49, of Pittsburgh's
North Side, whom they shot in Loyalhanna Township.
Then they killed Marlene Sue Newcomer, 26, a single
mother from Leisenring, Fayette County, who picked up the hitchhikers
along Route 66 after attending a New Year's Eve party in Vandergrift.
Next to die was William Nicholls, 46, of Mt. Lebanon,
who was bound and drowned in an Indiana County lake.
The two were driving his Italian sports car when
Miller was killed near Apollo.
Sheetz worked at writing the book off and on for 10
years. One of the problems in writing about events 20 or 30 years ago is
that many of those involved have died.
The deceased don't include either Lesko or Travagalia.
Many family members of the victims are gone. And the
two defendants declined an interview.
He also faced unavailable court records. The trial
transcripts of the cases have been at the state Supreme Court, awaiting
appeals. And the Pittsburgh police simply told him the case was not a
public record, unlike Florida police records, which are open to the
But Sheetz did interview several people key to the
Former state police Sgt. Tom Tridico of Greensburg
was one of the lead investigators. Former Apollo officer James Clawson
was one of Miller's best friends, and former Apollo Mayor William Kerr
had just appointed Miller to a full-time position.
Of course, the question that has plagued local
residents and police for decades is the why: Why did human life mean so
little to these two teenagers?
Sheetz tries to answer that.
Travaglia and Lesko met while working at the
Allegheny County Airport. Both abused alcohol and drugs. By some reports,
both tortured animals.
Travaglia was apparently addicted to amphetamines and
was an avowed Satanist.
Sheetz was lucky enough to find a Duquesne University
professor who shared her students' research into Lesko's childhood.
"I was appalled at it," he said.
He details in the book how Lesko lived in squalid
conditions, often without heat. He suffered physical abuse by his mother.
She associated mainly with lowlifes, and would send
Lesko and his younger siblings out into the streets to steal. Lesko and
his younger brother were sexually abused by men, and Lesko went AWOL
from the Marines.
Sheetz found Travaglia's home life more normal. Kiski
Area teachers liked the shy, quiet student who played in the band.
But there was obviously another side. Sheetz noted
Travaglia's father was strict and his mother, who was very religious,
was detached and unemotional.
He says Travaglia felt his parents favored his older
Sheetz also questions a criminal justice system that
has allowed these two killers to remain alive for the last 30 years --
when neither of them gave a second thought to squeezing the last breaths
from four victims. The book's appendix details the unbelievably lengthy
appeals and retrials involved in the case.
Most area residents would certainly
agree with Sheetz -- that something is wrong with our state's cumbersome
appeals process -- for two people who quickly became poster boys for the
Michael J. Travaglia and John C. Lesko
were sentenced to death in 1981 in Westmoreland County Court for killing
Apollo police officer Leonard Miller.
After numerous appeals, Travaglia was retried and
once again sentenced to death in 2005. He is on death row at the State
Correctional Institution-Greene, near Waynesburg, although an appeal is
before the state Supreme Court.
Following several appeals, Lesko was retried and
again sentenced to death in 1995. In 2006, a Westmoreland County judge
ordered a third trial and re-sentencing for Lesko.
The district attorney is appealing that ruling, and
the appeal is now before the state Supreme Court. Lesko is at the State
Correctional Institution-Graterford in suburban Philadelphia.
Born Again Too Late
December 10, 2005
John Lesko and his thrill-kill partner
Michael Travaglia both say that in the 25 years they’ve spent on
Pennsylvania’s death row they both have discovered Jesus. The survivors
of one of their victims, Marlene Sue Newcomer, say that’s nice, and
point out that Sue knew Jesus and sang in the church choir when they
murdered the 26-year-old in 1980.
Friends of another victim, William
Nicholls, probably think that it’s ironic that it took a quarter-century
of life behind bars for the two men to find religion, when they could
have accompanied Nicholls to his church on any Sunday, where he played
The religious beliefs of Travaglia and
Lesko’s other two victims, a rookie cop named Leonard Miller and
49-year-old Peter Levato, the former “goaded” into a high-speed chase
that ended in gunfire and the latter, a kidnap victim, probably also
didn’t factor much into the deadly duo’s drug-addled murder spree in the
week after Christmas 1979.
Lesko and Travaglia have each had several
chances to demonstrate their remorse to Pennsylvania juries over the
past few decades since their convictions. Legal wrangling and quibbling
over when whether guilty pleas for a murder in one county can be used as
evidence in the sentencing phase of a murder trial in another county
have bounced their cases up and down the federal and state court dockets
over the years.
Each time — most recently during the summer of 2005 — juries have looked
on the born-again killers with the same amount of pity the men showed
Around Christmas 1979 Lesko was apparently
sitting around taking drugs and drinking, thinking about how bad it was
that his younger brother had been molested while in an orphanage.
Apparently John had also been sexually abused during his childhood and
he decided to lash out at society that had dealt him such a raw deal.
He hooked up with his friend Mike
Travaglia and together they kidnapped Levato, a security guard and drove
him to Westmoreland County where Travaglia shot and killed him.
In the midst of an armed robbery spree operating out of their Edison,
Pennsylvania hotel room, the men were hitchhiking on the north side of
Pittsburgh when Sue Newcomer stopped to give the men a ride on a bitter
cold New Year’s Day morning.
As a reward, they commandeered Newcomer’s
sport utility vehicle and kidnapped her while they robbed an Indiana
County party store. Following the robbery, they shot their handcuffed
hostage twice with a .22 and abandoned her and her truck in a Pittsburg
In the late evening of January 2, 1980,
Lesko and Travaglia had picked up another companion, a 15-year-old
juvenile delinquent named Ricky Rutherford, and were ready to resume
their murder spree. The trio lurked outside a hot dog stand near their
hotel and waited until a victim appeared.
After a 10-minute wait, William Nicholls
pulled up and Travaglia opened the passenger’s side door of his sports
car and sat down, pointing the .22 at him. After Rutherford and Lesko
got into the back seat, Travaglia shot Nicholls in the arm. Travaglia
then drove away from the hot dog stand.
Lesko ordered Rutherford to handcuff the hostage and repeatedly punched
the defenseless and injured Nichols in the face and chest.
They robbed him of his wallet and watch
and threatened Nicholls with a knife. Travaglia drove to a wooded area,
where they forced Nicholls out of the car and gagged him. Then while
Rutherford found a 25-pound rock, Lesko and Travaglia bound Nicholls’s
legs with a belt and dragged him toward a hole in an ice-covered pond.
They pushed him in and dropped the rock on top of him.
Now that they had a car, they decided to
rob a convenience store and stopped off at Travaglia’s father’s house
where they stole another handgun and ammunition.
Heading back toward Pittsburgh, The trio
drove past police officer Leonard Miller, sitting in his patrol car
parked at the side of the road outside a Stop-and-Go convenience store.
Travaglia said he “wanted to have some fun with this cop” and raced past
the officer’s car beeping his horn, but no pursuit followed. Travaglia
turned the car around, again sped past the patrol car, and again failed
to elicit a response. The third time Travaglia sped past, Officer Miller
turned on his lights and gave chase. Lesko turned to Rutherford in the
back seat and cautioned him to “lay down in the back, because it might
turn into a shooting gallery.”
Miller forced the sports car off the side
of the road and approached the car on foot. Travaglia rolled down his
window, extended his .38-caliber hand gun, and shot Officer Miller twice
from close range.
Later, Travaglia claimed the shooting was
“I was playing around with him, trying to aggravate him, and I
aggravated him, and I figured he couldn’t chase me across the county
lines; and since he did, I figured if I pointed the gun at him and told
him to throw his gun away, he couldn’t stop me and I could keep on
going,” he confessed. “In the process of pulling the gun on him, the
hammer slipped and the shot discharged.”
Officer Miller returned fire, shattering
the passenger side of the window. The three men sped away, leaving the
fatally wounded cop laying on the ground.
The trio never got around to robbing
the Stop-and-Go. They returned to the hotel where they hooked up with a
friend and Travaglia told him he had shot the officer.
“I shot a cop,” Travaglia said. Lesko added, “I wanted to.”
Travaglia gave the .38 to the friend who was subsequently arrested with
it later that night. He rolled over on the killers and the three of them
were arrested the same night. Rutherford
was offered immunity in exchange for his testimony.
New trial is ordered in 'kill-for-thrill'
By Rich Cholodofsky
- Pittsburgh Tribune Review
Wednesday, August 9, 2006
After sitting on death row for a quarter-century,
convicted "kill-for-thrill" murderer John C. Lesko will get a new
Lesko's 1981 conviction and death sentence for
killing rookie Apollo police Officer Leonard Miller were overturned in a
court opinion released Tuesday.
Westmoreland County Common Pleas Judge Richard E.
McCormick Jr. ruled that the attorney who represented Lesko for nearly
two decades was "woefully deficient" during the 1981 murder trial and a
1995 resentencing hearing.
Lesko, now 47, was originally convicted along with
partner Michael J. Travaglia for killing the 21-year-old Miller on a
dark, secluded road in Oklahoma Borough, Westmoreland County, after
luring the police officer away from a convenience store they intended to
Miller was the last of four victims slain during the
eight-day killing spree that ended on Jan. 3, 1980. Lesko is serving
life sentences for three other murders committed during the spree.
Lesko, of Homestead, was represented by Greensburg
attorney Rabe Marsh during both the trial and the resentencing hearing.
Marsh, a former military lawyer and prosecutor, was
appointed by the court to represent Lesko. At that time he had never
participated in a death penalty case. During his four-year stint as an
assistant district attorney in the early 1970s, the death penalty was
outlawed by the U.S. Supreme Court.
Under current court rules, Marsh might not have been
allowed to represent Lesko.
That's because qualifications for attorneys appointed
to handle death penalty cases were raised in 2004. The Supreme Court
ordered that defense attorneys must have at least five years of criminal
litigation experience and must have tried at least eight homicide or
felony cases to be eligible to try a death penalty case.
"The court felt the change would foster greater
public confidence in the justice system and ensure defendants in these
capital cases are both fairly and efficiently represented," said Art
Heinz, spokesman for the Adminstrative Office of Pennsylvania Courts.
In his 74-page opinion, McCormick said that Marsh was
overmatched, did not properly question prosecution witnesses, failed to
allow Lesko to testify during the trial and provided insufficient
medical evidence at the resentencing hearing.
"In light of these circumstances with the thwarted
testimony going directly to an essential element of the crime, we find
that there is a reasonable likelihood that the jury may have come to a
different conclusion had it heard this evidence," McCormick wrote.
Specifically, during an appeal hearing before
McCormick in 2001, Lesko claimed he told Marsh he had wanted to testify
in his defense 20 years earlier. Marsh presented no defense, however,
and rested his case without calling any witnesses on Lesko's behalf.
Travaglia, who was tried along with Lesko, did not
testify during the trial. But he was called in before the trial before
Judge Gilfert Mihalich and questioned on the record about his
voluntarily giving up his right to testify. That did not occur with
Lesko claimed he wanted to testify so he could rebut
damaging evidence from two witnesses showing the men intended to kill
"The bottom line is that the record falls far short
of establishing that (Lesko's) constitutional, fundamental right to
testify was protected or that he knowingly and personally waived that
right," McCormick wrote.
Marsh again represented Lesko during the resentencing
hearing, and McCormick again found his defense ineffective. He said
Marsh should have done a better job of finding and questioning medical
A key defense witness was hired on the eve of trial.
During later appeals, that witness changed his diagnosis of Lesko,
indicating he suffered from brain damage, evidence that was not
presented during the resentencing hearing.
McCormick rejected Marsh's contention that the timing
of the witness's hiring was beneficial to the defense because it did not
allow prosecutors proper time to rebut the testimony.
Marsh, who has a civil law practice based in
Greensburg, did not respond to requests for comment yesterday.
Westmoreland County District Attorney John Peck said
the case would be appealed.
"Even assuming the errors, that wouldn't change the
outcome of the case. The evidence showed the defendant was indisputably
involved in four shockingly brutal murders in (a little) more than a
week," Peck said.
Should an appeal fail, Peck said he would retry Lesko
in the Miller homicide and again seek the death penalty.
That would require bringing back witnesses who first
testified 25 years ago. For witnesses who have died, transcripts of
previous testimony could be used at trial, Peck said.
"Witnesses' memories are remarkably accurate given
the nature of the crime," Peck said.
The long legal path taken in the case intensified in
1999, when Lesko for the first time questioned Marsh's competency.
Because Marsh had represented him up until that time,
his competency had never been the subject of an appeal.
In 1999, the federal Defender's Association, a
Philadelphia-based agency that represents death row inmates, took over
the case and raised Marsh's effectiveness as an issue.
Lesko and Travaglia were convicted and sentenced to
death for the Miller murder during a high-profile trial in Greensburg in
1981. Their death sentences subsequently were overturned.
Travaglia, of Washington Township, Westmoreland
County, was again sentenced to death last year. He and Lesko were 21
years old when the shooting spree occurred.
"When will our emotional wounds be allowed to heal?"
asked Robin Davis, former police chief in Apollo, Armstrong County.
"The old wounds of anger, aggravation and hurt have
been ripped open," said Davis, who worked with Miller. "I don't know how
much the people can take."
Key dates involving John Lesko
Dec. 27, 1979: Peter Levato killed.
Jan. 1, 1980: Marlene Sue Newcomer killed.
Jan. 2, 1980: William Nicholls killed.
Jan. 3, 1980: Leonard C. Miller killed.
February 1981: John Lesko and Michael
Travaglia convicted of Miller homicide, sentenced to death.
1991: Federal appeals court vacates Lesko
1995: Westmoreland County jury resentences
Lesko to death.
1996: Federal appeals court vacates Travaglia
1999: Death warrant signed for Lesko; a month
later Lesko files new appeal claiming defense lawyer Rabe Marsh was
ineffective. Death warrant vacated.
2000: Westmoreland County Judge Richard E.
McCormick Jr. allows Lesko appeal to go forward.
2001: Lesko testifies during three-day hearing
August 2006: Lesko conviction overturned and
new trial ordered.
John Lesko and Michael J. Travaglia were
convicted for their roles in four murders that occurred during an
eight-day killing spree ending on Jan. 3, 1980.
• Peter Levato, 49, of the North Side, was the first
to die. He was shot in the woods near Loyalhanna Dam.
• Marlene Sue Newcomer, 26, of Connellsville, Fayette
County, was the next to die after she picked up Lesko and Travaglia
hitchhiking in the early hours of New Year's Day, 1980.
• William Nicholls, 32, of Mt. Lebanon, was the third
to die. After making a homosexual advance on Travaglia, he was driven to
a lake in Indiana County, where he was tied to rocks, thrown in the
frigid water and left to die.
• Driving back from Indiana County, Lesko and
Travaglia met up with Apollo police Officer Leonard Miller when they
attempted to rob an Apollo convenience store. Travaglia shot Miller
twice as he approached the car during a traffic stop. Lesko was accused
of urging Travaglia to shoot.
925 F.2d 1527
John Charles LESKO, Appellant,
Joseph LEHMAN, Commissioner of the Pennsylvania Department of
Corrections; Charles Zimmerman, Superintendent of the State Correctional
Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the
State Correctional Institution at Rockview; James J. Haggerty, General
Counsel of Pennsylvania; and Ernest D. Preate, Jr., Attorney General of
the Commonwealth of Pennsylvania, Appellees.
United States Court of Appeals for
the Third Circuit
March 11, 1991
Before HIGGINBOTHAM, MANSMANN and
COWEN, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit
Appellant John Charles Lesko was
convicted and sentenced to death by the Westmoreland County Court of
Common Pleas for the murder of Leonard Miller, an officer of the
Apollo, Pennsylvania police department. This is the second appeal
involving Lesko's petition for a writ of habeas corpus. On July 27,
1989, we reversed the district court's issuance of the writ, holding
that Lesko was not deprived of a fair trial by the introduction at
trial of evidence of his role in the prior murder of William Nicholls.
We remanded for consideration of Lesko's other habeas claims. Lesko v.
Owens, 881 F.2d 44 (3d Cir.1989), cert. denied, --- U.S. ----, 110
S.Ct. 759, 107 L.Ed.2d 775 (1990). On remand, the district court
dismissed Lesko's habeas petition after considering and rejecting
those other claims.
We now hold that the district court
erred in failing to hold an evidentiary hearing on Lesko's claim that
the introduction of evidence of his guilty plea to the Nicholls murder
at the penalty phase of his trial violated his due process rights. We
also hold that the jury's sentencing determination was tainted by
improper prosecutorial comments during the penalty phase. Accordingly,
we will reverse and remand to the district court for the issuance of a
conditional writ of habeas corpus insofar as Lesko's death sentence is
concerned. We will affirm the dismissal of the petition insofar as
Lesko challenges the jury's guilty verdict, as we find no errors of
constitutional significance in the determination of Lesko's guilt.
I. BACKGROUND AND PROCEDURAL HISTORY
In our prior opinion, we summarized
the facts underlying Lesko's conviction and death sentence.
In the early hours of January 3,
1980, John Lesko, Michael Travaglia and Richard Rutherford were
cruising the outskirts of the city of Pittsburgh in a stolen sports
car. The trio drove past police officer Leonard Miller, sitting in his
patrol car parked at the side of the road outside the Stop-and-Go
convenience store. Travaglia, the driver of the car, stated that he "wanted
to have some fun with this cop." Travaglia raced past the officer's
car beeping his horn, but no pursuit followed. Travaglia turned the
car around, again sped past the patrol car, and again failed to elicit
a response. The third time Travaglia sped past, Officer Miller turned
on his lights and gave chase. Lesko turned to Rutherford in the back
seat and cautioned him to "lay down in the back, because it might turn
into a shooting gallery."
A moment later, Officer Miller
managed to force the sports car off the side of the road. The officer
approached the car on foot. Travaglia rolled down his window, extended
his .38 caliber hand gun, and shot Officer Miller twice from close
range. Officer Miller returned fire, shattering the passenger side of
the window. The three companions sped away. The gunshot wounds Officer
Miller received proved fatal.
The trio had begun their escapade
together a few hours earlier, in the late evening of January 2, 1980,
at a hot dog shop in Pittsburgh. At Travaglia's instruction, Lesko and
Rutherford went to the alleyway behind the Edison Hotel, and waited.
About ten minutes later a sports car appeared. Travaglia sat in the
front seat beside the driver and owner of the car, William Nicholls, a
stranger. While Lesko and Rutherford were climbing into the back seat,
Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the
After Travaglia took the driver's
seat, Lesko told Rutherford to handcuff Nicholls behind the back. As
Travaglia drove, Lesko repeatedly punched Nicholls in the face and
chest, calling him a queer. Lesko asked Nicholls if he wanted to
perform oral sex on him, and taunted him with a knife. Meanwhile,
Lesko took Nicholls's belongings, a wallet and an extra set of keys,
and told Rutherford to place them in the glove compartment. After
Nicholls lost consciousness, Rutherford and Lesko gagged him with a
scarf. Travaglia stopped the car near a lake in a wooded area. Lesko
propped Nicholls against a nearby tree, his hands cuffed, his mouth
gagged, and his feet bound with a belt. Travaglia and Lesko dragged
Nicholls down to the lake and rolled him into the water, where he
The three men drove to Travaglia's
father's house, where Travaglia knew his father kept a gun. Lesko and
Rutherford waited in the car while Travaglia entered the house.
Travaglia returned with a .38 caliber handgun, which he handed to
Lesko. Upon inspection, Lesko discovered that it contained only bird
shot. Travaglia, who had begun driving away, turned the car around and
returned to his father's house. Travaglia instructed Rutherford to
retrieve the box of bullets lying in the trunk of the car parked
inside the garage. Lesko stood guard outside. Armed with the gun that
had wounded Nicholls, Lesko warned Rutherford that if anything went
wrong, Rutherford "had six shots to get out." Rutherford returned with
the box of bullets, and the trio drove off. It was these bullets that
killed Officer Miller.
After the Miller shooting, Lesko and
Travaglia returned to Pittsburgh. At the hot dog shop they met a
friend, Keith Montgomery, whom they took to a room in the Edison Hotel
and told about the Miller shooting. Travaglia told Montgomery, "I shot
a cop." Lesko added, "I wanted to." Travaglia then gave Montgomery the
.38 caliber gun used to shoot Officer Miller. When the Pittsburgh
police found Montgomery with that same gun later that evening,
Montgomery told the police how he had gotten the gun, and that it had
been used to shoot a policeman. Lesko and Travaglia were arrested that
night. Before surrendering, Lesko pointed a gun at tSU21 After
receiving Miranda warnings, Lesko and Travaglia each gave statements
admitting involvement in the killing of Officer Miller. Lesko told the
police that he and Travaglia had instigated the car chase with Officer
Miller, "So he'd be chasing us ... and the car was fast and that--we'd
lose him and could go and knock off the Stop-N-Go." In contrast,
Travaglia told the police that he was "playing around with [Officer
Miller], trying to aggravate him, and I figured he couldn't chase me
across county lines; and since he did, I figured if I pointed the gun
at him and told him to throw his gun away, he couldn't stop me and I
could keep on going. In the process of pulling the gun on him, the
hammer slipped and the shot discharged." Lesko and Travaglia also
admitted killing William Nicholls.
Lesko, 881 F.2d at 46-47.
After their capture, Lesko and
Travaglia faced murder charges in the Court of Common Pleas of Indiana
County for the Nicholls homicide and in the Court of Common Pleas of
Westmoreland County for the Miller homicide. Lesko was represented at
all relevant periods in the Indiana County proceedings by John
Armstrong. He was represented throughout the Westmoreland County
proceedings by his present counsel.
A. Indiana County Guilty Plea
On May 19, 1980, Lesko pled guilty
in Indiana County to second degree murder. No written record of a plea
agreement exists, but Armstrong and the Indiana County prosecutor
stated at the plea hearing that Lesko's guilty plea was made with the
understanding that the other charges related to the Nicholls murder
would be dismissed and that sentencing on the murder charge would be
delayed until "late June." Record of Guilty Plea Proceedings (May 19,
1980) at 32. Although the parties now disagree about the purposes
underlying the agreement to defer sentencing, it is undisputed that,
as a minimum, Armstrong and the prosecutor intended that sentencing be
delayed until the conclusion of Lesko's trial in Westmoreland County.
On December 3, 1980, before a sentence had been imposed, Armstrong
filed a motion to withdraw Lesko's Indiana County guilty plea, stating
that his client wished to stand trial for the charges related to the
B. Westmoreland County Proceedings
In January 1981, Lesko and Travaglia
were tried jointly in Westmoreland County for the Miller homicide. We
have previously summarized the guilt phase of this trial.
At trial, Lesko and Travaglia's sole
defense to the charge of first degree murder was that they each lacked
the requisite intent to kill. Lesko's counsel argued principally that
his client was at most guilty of felony-murder. He argued that in
instigating the police chase, defendants planned first to divert the
officer from the Stop-and-Go store, and later return to rob the
establishment. Therefore, Lesko's lawyer urged, the killing was not
pre-meditated, but was the unintended result of a botched robbery
attempt. Travaglia's lawyer, meanwhile, emphasized that pulling the
trigger had been accidental, a result of the hammer of the gun having
slipped as Travaglia aimed at the officer. Neither defendant testified
at the guilt phase of the trial. However, statements they made in
their taped confessions to the police, which the Commonwealth
introduced into evidence, were relied on by defense counsel in support
of their respective defense theories.
Lesko, 881 F.2d at 47-48.
Rutherford was the Commonwealth's
principal witness at trial. Over defense objections, Rutherford
testified about both defendants' roles in the abduction and killing of
Nicholls and in the events surrounding the Miller homicide.
On January 30, 1981, the jury found
Lesko and Travaglia guilty of murder in the first degree and criminal
conspiracy to commit murder. Pursuant to the jury trial procedure
specified in Pennsylvania's death penalty statute, 42 Pa.Cons.Stat.
Ann. Sec. 9711(a), the trial then proceeded to its penalty phase. The
prosecution introduced as a statutory "aggravating circumstance" the
fact that defendants had pled guilty in Indiana County to the Nicholls
murder. Counsel for
both defendants objected to this testimony on the grounds that the
Indiana County convictions were not "final" because sentences had not
yet been imposed, and that both men had pled guilty with the
understanding that their pleas could not be used against them in the
Westmoreland County trial. Trial Transcript ("Tr.") at 1338-39.
Lesko's counsel also objected on the basis of his client's still
pending motion in Indiana County to withdraw his guilty plea. Tr. at
1404, 1427-29. The trial court denied counsel's motion for an
evidentiary hearing on the status of that motion. Tr. at 1429.
Lesko introduced mitigating
testimony from his mother, aunt, former girlfriend, and his former
girlfriend's mother about his background and character. Tr. at
1627-49. He also provided testimony of a biographical nature. He
testified that he never knew his father, and that his mother gave him
up to an orphanage when he was seven or eight years old. When he was
fourteen, he was returned to his grandmother. He recalled that he had
attended a number of schools and was a "straight A" student in the
eleventh grade, after which he enlisted in the Marine Corps. He served
in the Marines from March 1976 until his administrative discharge in
December 1978. He returned to the Pittsburgh area, where he "bounced
from job to job." He testified that he first met Michael Travaglia in
late November 1979. He was not asked about, and did not discuss, the
events surrounding the Nicholls and Miller murders. The prosecutor did
not cross-examine Lesko.
Tr. at 1651-62.
On February 3, 1981, the jury
returned death verdicts against both defendants. As to Lesko, the jury
found both aggravating circumstances offered by the prosecution and
further found that the aggravating circumstances outweighed the
On direct appeal to the Pennsylvania
Supreme Court, Lesko argued that the Commonwealth had breached the
Indiana County plea agreement by introducing evidence of the plea as
an aggravating circumstance. However, the Pennsylvania Supreme Court
did not discuss this issue in its majority opinion and order affirming
both defendants' convictions and sentences. Commonwealth v. Travaglia,
502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256, 104
S.Ct. 3547, 82 L.Ed.2d 850 (1984); but see 502 Pa. at 507-08, 467 A.2d
at 305 (Nix, J., concurring) ("I ... join in the Court's mandate today
with the caveat that the death penalty will be carried out only after
a review of [the challenges to the pleas] by this Court and only if
after such review it is determined that the pleas were voluntarily and
knowingly entered and the request for withdrawal was properly refused.").
C. Indiana County Post-Guilty
On April 13, 1981, Armstrong filed
an amended motion to withdraw Lesko's Indiana County guilty plea,
asserting, inter alia, that an essential element of this plea
agreement was "the Commonwealth's assurance that he would not be
sentenced until after the trials in Westmoreland County. Implicit in
this expressed promise by the Commonwealth was the fact that this plea
in Indiana County couldn't be used in the trial or sentence in
The Indiana County court held a
hearing on this motion on April 28, 1981. Lesko did not testify at
this hearing. Armstrong also did not testify.
However, during the hearing Armstrong argued that "implicit" in
counsel's agreement to defer sentencing in Indiana County was the
understanding that the plea would not be used against Lesko at the
Westmoreland County trial. Record of Proceedings on Motion to Withdraw
Guilty Plea (April 28, 1981) at 9. Armstrong also acknowledged that he
believed that until sentence was imposed, Lesko's guilty plea did not
constitute a "conviction" and thus could not be introduced at the
Westmoreland trial. Id. at 6-7.
On June 5, 1981, the court denied
Lesko's motion to withdraw his guilty plea. It is evident from the
court's "Finding of Facts" that its decision was based on its
conclusion that the colloquy at the May 19, 1980 plea hearing embodied
the entire plea agreement. The court found that "[t]he promise in the
instant case was that the defendant's sentence for second degree
murder would be delayed; there was no promise on behalf of the
Commonwealth, nor request by the defendant, that evidence of the
defendant's Indiana County guilty plea would not be used against him
at other trials." Opinion and Order of the Court (June 5, 1981) at 7.
On appeal, the Pennsylvania Supreme
Court affirmed Lesko's Indiana County conviction, holding that
Armstrong was not ineffective for advising Lesko to plead guilty. The
court also upheld the trial court's denial of Lesko's motion to
withdraw the guilty plea. Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d
307 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d
850 (1984). Again, the court's decision was premised on the fact that
the plea colloquy did not reveal a promise by the Commonwealth not to
use the guilty plea at the Westmoreland County trial. 502 Pa. at 518,
467 A.2d at 310.
D. PCHA Proceedings
On April 15, 1985, Lesko filed in
Indiana County a petition under Pennsylvania's Post Conviction Hearing
Act ("PCHA"), 42 Pa.Cons.Stat. Ann. Secs. 9541-9551, alleging that
Armstrong was ineffective for advising him that his guilty plea could
not be used as an aggravating circumstance. On April 23, 1985, this
petition was denied without a hearing on the ground that this issue
had been determined in the direct appeal from the Indiana County
conviction. Commonwealth v. Lesko, No. 35 Crim., 1980 (Indiana Co.Ct.
Common Pleas April 23, 1985), appeal quashed as untimely, 357 Pa.Super.
636, 513 A.2d 1077 (1986), allocatur denied, 514 Pa. 616, 521 A.2d 931
Lesko also raised his guilty plea
issue in a PCHA petition filed in Westmoreland County. The trial court
convened a hearing on this petition on January 28, 1985, but rejected
Lesko's proffer of testimony from Armstrong about his plea
negotiations with the Indiana County district attorney and about his
conversations with Lesko concerning the terms of the plea agreement.
Post Conviction Hearing Proceeding Transcript (April 23, 1985) at 3-4,
7-14. The court
specifically rejected counsel's attempt to raise the "new issue" of
whether there was "an understanding between counsel and the basis of
the defendant's plea [sic] that the guilty plea in Indiana County
would not be introduced in Westmoreland County." Id. at 8. The court
considered that the proffered testimony was irrelevant because the
Westmoreland County court was not bound by the terms of the Indiana
County plea agreement. The court also believed that the guilty plea
issue was finally litigated in the direct appeal from the Indiana
The Pennsylvania Supreme Court
affirmed the denial of Lesko's Westmoreland County PCHA petition.
Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (1985), cert. denied,
479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987). The Court
determined that Lesko's argument that he "believed" the plea could not
be used against him in Westmoreland County was a mere "variant" of the
argument that Armstrong had made in his motion to withdraw the guilty
plea--namely, that the commitment not to introduce the plea in
Westmoreland County was an "implicit" term of the plea agreement. The
court agreed with the trial court that this issue had been finally
determined in the direct appeal from Lesko's Indiana County conviction,
stating that "[t]he terms of the bargain do not contain the agreement
appellant now says he 'believed' was 'implicit' in it." 509 Pa. at 85,
501 A.2d at 208-09.
E. Habeas Corpus Proceedings
On June 11, 1986, Lesko filed a
petition for a writ of habeas corpus in the United States District
Court for the Western District of Pennsylvania. On May 2, 1988, the
district court issued the writ, holding that Lesko's right to a fair
trial was violated by the introduction of extensive evidence of
Lesko's role in the Nicholls murder. Lesko v. Jeffes, 689 F.Supp. 508
(W.D.Pa.1988). On appeal, this court reversed, concluding that
evidence relating to the Nicholls murder was relevant to show motive
and intent, and that its prejudicial effect did not so outweigh its
probative value that its admission denied Lesko a fair trial. Lesko v.
Owens, 881 F.2d 44 (3d Cir.1989), cert. denied, --- U.S. ----, 110
S.Ct. 759, 107 L.Ed.2d 775 (1990). We remanded the case to the
district court for resolution of the remaining issues raised by
Lesko's habeas petition.
On remand, the district court
referred the matter to a United States Magistrate, who filed a report
and recommendation rejecting the balance of Lesko's habeas claims. On
April 12, 1990, the district court approved and adopted the
magistrate's report, dismissed the habeas petition, and granted a
certificate of probable cause to appeal. This appeal followed.
We have subject matter jurisdiction
under 28 U.S.C. Sec. 2254, and appellate jurisdiction under 28 U.S.C.
Sec. 1291. This court has already determined that Lesko has exhausted
his state court remedies. Lesko, 881 F.2d at 50.
Lesko raises the following issues in this appeal:
1. Whether he is entitled to an evidentiary hearing
on his claim that the introduction of his Indiana County guilty plea
at the penalty phase of the Westmoreland County trial violated due
process, because he had allegedly pled guilty with the understanding
that his plea would not be used against him at trial;
2. Whether the exclusion for cause of a veniremember
who expressed her personal opposition to the death penalty during voir
dire violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1968);
3. Whether certain remarks in the prosecutor's
closing argument in the penalty phase of the trial constituted an
improper and inflammatory "appeal to vengeance";
4. Whether certain remarks in the prosecutor's
closing argument in the penalty phase of the trial constituted an
impermissible comment on Lesko's failure to testify on the merits of
the charges against him;
5. Whether the trial court erred in instructing the
jury that it should not consider sympathy in its penalty determination;
6. Whether the death penalty for Lesko, a non-triggerman
accomplice to the murder of Officer Miller, is an unconstitutionally
7. Whether the Pennsylvania death penalty statute is
unconstitutional as applied because the jury is allowed to return a
verdict on non-capital degrees of homicide (in this case, voluntary
manslaughter) "even when there is no evidence to sustain such a
8. Whether the Pennsylvania death penalty statute is
unconstitutional because it requires the defendant to establish the
existence of mitigating circumstances by a preponderance of the
9. Whether the trial court erred in allowing the
jury to hear "gruesome details" of Lesko's role in the Nicholls
A. Scope of Review
We recently summarized the scope of our review of a
district court decision which denies a habeas petition without a
Our scope of review is limited as we sit not to
retry state cases de novo but rather to examine the proceedings in the
state court to determine if there has been a violation of federal
constitutional standards. Milton v. Wainwright, 407 U.S. 371, 377, 92
S.Ct. 2174, 2177, 33 L.Ed.2d 1 (1972). Accordingly, we do not exercise
the supervisory power that we might possess on an appeal from a
conviction in the district court. Donnelly v. DeChristoforo, 416 U.S.
637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Where, as
here, a district court has denied a petition for habeas corpus without
holding an evidentiary hearing, our review consists of a two-step
analysis. Smith v. Freeman, 892 F.2d 331, 338 (3d Cir.1989) (citing
Toomey v. Clark, 876 F.2d 1433, 1435 (9th Cir.1989)). First, we
determine whether the petitioner has alleged facts that, if proved,
would entitle him to relief. Smith, 892 F.2d at 338 (citing Townsend
v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963);
Toomey, 876 F.2d at 1435). If so, we must then decide whether an
evidentiary hearing is necessary to establish the truth of those
allegations. Smith, 892 F.2d at 338 (citing Townsend, 372 U.S. at
312-19, 83 S.Ct. at 756-60; Toomey, 876 F.2d at 1435).
Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d
Cir.1991). Our review of the district court's decision in this case is
plenary, as the dismissal of the habeas petition was based on the
state court record, and not on independent factfinding by the district
court. Id. at 291 n. 5.
Applying these standards, we conclude that the
district court erred in failing to hold an evidentiary hearing on
Lesko's guilty plea claim (Issue 1), and in rejecting his claims based
on the prosecutor's closing argument. (Issues 3 and 4). We agree with
the district court that there is no merit in Lesko's other claims.
B. Indiana County Guilty Plea
Lesko claims that the Commonwealth's use of his
Indiana County guilty plea as an aggravating circumstance in the
Westmoreland trial was a violation of due process, as he had pled
guilty with the understanding that the plea would not be so used. He
asserts that his understanding "stemmed directly and reasonably from
statements made to him by his Indiana County counsel [John Armstrong]
and that these representations played a material part in inducing his
guilty plea." Appellant's Brief at 16.
Pursuant to the two-step analysis described above,
we shall first determine whether Lesko's allegations, if true,
describe a due process violation. We shall then discuss whether the
district court erred in denying this claim without an evidentiarPH1H1.
Due Process violation
We begin our first inquiry with a recognition that a
counseled and voluntary guilty plea may not be collaterally attacked
in a habeas corpus action. Mabry v. Johnson, 467 U.S. 504, 508, 104
S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984). As the Supreme Court has
A plea of guilty and the ensuing conviction comprehend all of the
factual and legal elements necessary to sustain a binding, final
judgment of guilt and a lawful sentence. Accordingly, when the
judgment of conviction upon a guilty plea has become final and the
offender seeks to reopen the proceeding, the inquiry is ordinarily
confined to whether the underlying plea was both counseled and
voluntary. If the answer is in the affirmative then the conviction and
the plea, as a general rule, foreclose the collateral attack.
United States v. Broce, 488 U.S. 563, 109 S.Ct. 757,
762, 102 L.Ed.2d 927 (1989).
In this case, Lesko asserts that the introduction of
his guilty plea at the penalty phase undermined the plea's voluntary
character, as he had pled guilty with the understanding that the plea
would not be so used. As he points out, a guilty plea which is induced
by promises or threats from counsel that deprive it of its voluntary
character is void. A conviction or a sentence which is based on an
involuntary plea may be collaterally challenged. See Santobello v. New
York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971);
Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7
L.Ed.2d 473 (1962). The standard for determining whether a guilty plea
is "voluntary" for purposes of the U.S. Constitution is a question of
federal law, but the determination of the historical facts surrounding
the plea bargain is subject to the deferential "presumption of
correctness" of 28 U.S.C. Sec. 2254(d). Marshall v. Lonberger, 459 U.S.
422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983).
A habeas petitioner faces a heavy burden in
challenging the voluntary nature of his guilty plea, for the plea
hearing is specifically designed to uncover hidden promises or
representations as to the consequences of a guilty plea. As the
Supreme Court stated in Blackledge v. Allison, 431 U.S. 63, 73-74, 97
S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977), "the representations of the
defendant, his lawyer, and the prosecutor at [a plea] hearing, as well
as any findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity." Id.
at 73-74, 97 S.Ct. at 1629.
However, the Blackledge Court emphasized that while
the record of a plea hearing is an "imposing" barrier to habeas relief,
it is not "invariably insurmountable."
In administering the writ of habeas corpus ..., the federal courts
cannot fairly adopt a per se rule excluding all possibility that a
defendant's representations at the time his guilty plea was accepted
were so much the product of such factors as misunderstanding, duress,
or misrepresentation by others as to make the guilty plea a
constitutionally inadequate basis for imprisonment.
Id. at 75, 97 S.Ct. at 1629-30.
A petitioner challenging the voluntary nature of a
facially valid guilty plea on the basis of unfulfilled promises or
representations by counsel must advance specific and credible
allegations detailing the nature and circumstances of these statements.
See Machibroda, 368 U.S. at 495, 82 S.Ct. at 514; Blackledge v.
Allison, 431 U.S. at 74, 97 S.Ct. at 1629. A collateral challenge to a
guilty plea may be summarily dismissed "when [the petitioner's]
allegations of an unkept promise are inconsistent with the bulk of his
conduct, and when he offers no detailed and specific facts surrounding
the agreement." Davis v. Butler, 825 F.2d 892, 894 (5th Cir.1987).
Lesko's specific and corroborated allegations, and
the circumstances surrounding his guilty plea, satisfy this threshold
standard. Lesko alleges that he "entered the Indiana County guilty
plea with the understanding that a plea agreement had been entered
into between [Armstrong] and the Indiana County prosecutor under which
one of the terms of the plea was that Lesko's Indiana plea would not
be used against him in the Westmoreland County prosecution."
Appellant's Brief at 16. Although Lesko's Indiana County counsel has
not yet been afforded the opportunity to testify concerning the plea
negotiations, Armstrong has steadfastly maintained, in the state court
proceedings and in an affidavit submitted at our direction,
that he believed that he had a commitment from the Indiana County
prosecutor not to use the guilty plea in the Westmoreland proceeding,
and that he communicated this belief to Lesko.
Based on all of Lesko's and Armstrong's allegations,
if true, it is clear that Lesko believed that the plea agreement
included a "non-use" promise by the Indiana County prosecutor. A plea
entered on that basis would not be voluntary, and a sentence based on
such a plea may be collaterally attacked.
See Blackledge v. Allison, 431 U.S. at 75-76, 97 S.Ct. at 1629-30
(habeas claim supported by petitioner's "specific factual allegations"
that he was induced to plead guilty by his attorney's representation
that he had obtained a commitment from the prosecutor and the judge
for a more lenient sentence than the one actually imposed); Davis, 825
F.2d at 894-95 (habeas claim supported by specific, detailed
contention that petitioner had pled guilty because of his counsel's
assurance that he would be pardoned three years after sentencing);
United States v. Marzgliano, 588 F.2d 395, 397-99 (3d Cir.1978) (Sec.
2255 claim supported by specific and corroborated allegations that
defense counsel had misled defendant about sentencing provisions of
plea agreement); McAleney v. United States, 539 F.2d 282 (1st
Cir.1976) (defendant in Sec. 2255 action permitted to withdraw plea
because of counsel's misrepresentation that prosecutor would recommend
light sentence); United States v. Valenciano, 495 F.2d 585 (3d
Cir.1974) (Sec. 2255 claim supported by allegations that defense
counsel had failed to advise client of special parole term, and had
incorrectly informed him that two sentences would be concurrent,
rather than consecutive); Moorhead v. United States, 456 F.2d 992, 995
(3d Cir.1972) (defendant permitted to collaterally attack guilty plea
because of his attorney's misrepresentation that the prosecutor would
recommend probation or suspended sentence).
We therefore turn to our second inquiry: whether the
district court erred in denying Lesko an evidentiary hearing on his
guilty plea claim.
2. Necessity for Evidentiary Hearing
In Valenciano, a Sec. 2255 case, we stated that "[w]here
the voluntariness of the plea is attacked with an assertion that one's
counsel or the prosecutor, or both, made an out-of-court arrangement
or 'proposition' as to the outcome of a sentence which differs from
that pronounced by the court, an evidentiary hearing will ordinarily
be necessary on a Sec. 2255 motion attacking the voluntariness of the
plea." 495 F.2d at 587. When a Sec. 2254 petitioner raises material
disputed facts which, if true, would entitle the petitioner to relief,
the district court also must hold an evidentiary hearing, "if the
habeas applicant did not receive a full and fair evidentiary hearing
in a state court, either at the time of trial or in a collateral
proceeding." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9
L.Ed.2d 770 (1963). The Supreme Court has held that evidentiary
hearings are required under the following circumstances:
(1) the merits of the factual dispute were not resolved at the
state hearing; (2) the state factual determination is not fairly
supported by the record as a whole; (3) the fact-finding procedure
employed by the state court was not adequate to afford a full and fair
hearing; (4) there is a substantial allegation of newly discovered
evidence; (5) the material facts were not adequately developed at the
state-court hearing; or (6) for any reason it appears that the state
trier of fact did not afford the habeas applicant a full and fair fact
Id. at 313, 83 S.Ct. at 757; see also Smith v.
Freeman, 892 F.2d at 338; Mayberry v. Petsock, 821 F.2d 179, 185 (3d
Cir.), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362
(1987); Sullivan v. Cuyler, 723 F.2d 1077, 1084 (3d Cir.1983).
Congress has for the most part codified the Townsend criteria in 28
U.S.C. Sec. 2254(d), which provides that a habeas court shall accord a
presumption of correctness to "a determination after a hearing on the
merits of a factual issue" made in the course of the petitioner's
state court proceedings. This presumption may be rebutted by a showing
that the state court determination was deficient for one of the
reasons specified in Townsend.
The district court concluded that in the plea
hearing itself, and in the hearing on Lesko's motion to withdraw his
guilty plea, the state courts provided a "full record" on the facts
underlying Lesko's present guilty plea claim, and thus an evidentiary
hearing in federal court was unnecessary. Magistrate's Opinion at 9.
Indisputably, there was no mention in the plea
colloquy of the prosecutor's alleged commitment not to use Lesko's
guilty plea against him in Westmoreland County. However, the plea
colloquy does not negate the possibility that Lesko understood the
prosecutor's alleged "non-use" agreement to be subsumed in counsels'
explicit agreement to delay sentencing on the Indiana County murder
charge. The later hearing on Lesko's motion to withdraw his guilty
plea also did not constitute the requisite "full and fair" hearing on
Lesko's voluntariness claim. It is clear from the transcript of this
hearing, and from the characterization of the record by the state
trial and appellate courts, that judicial review was restricted to the
issue of the existence of an agreement not to use the Indiana plea at
the Westmoreland trial. The state courts rested their determination
that there was no such agreement mentioned in the plea colloquy itself
or in the later testimony from the Indiana County prosecutor at the
hearing on Lesko's motion to withdraw his plea. The courts never fully
addressed, and did not finally resolve, the distinct issue of the
voluntary nature of Lesko's plea.
On habeas review, the presumption of correctness of
state court factfinding is inapplicable "if the merits of the factual
dispute are not resolved at the state hearing. In such circumstances,
the federal court must grant an evidentiary hearing to a habeas
applicant." Sullivan, 723 F.2d at 1084; see also 28 U.S.C. Sec.
2254(d)(1). Lesko raises a genuine factual issue about the
voluntariness of his plea by his specific and corroborated allegation
that Armstrong represented to him that he had secured a "non-use"
agreement from the prosecutor. This critical issue has not yet been
finally resolved in an evidentiary hearing in either his state or
federal proceedings. Accordingly, we will remand this case to the
district court to conduct such a hearing.
C. Prosecutor's Closing Argument
Lesko did not testify during the guilt phase of the
trial. At the penalty phase, he and his witnesses presented mitigating
testimony concerning his deprived childhood and family background.
Lesko did not testify as to the merits of the charges against him, and
he was not cross-examined by the prosecution.
In their closing arguments in the penalty phase,
defense counsel contended that the death penalty was cruel and
ineffective as a deterrent to crime. Tr. at 1665-84. Lesko's counsel
urged the jury to consider as mitigating circumstances his client's
relatively passive role in the Miller homicide, his young age,
and his troubled and impoverished upbringing. Tr. at 1668-73.
In his closing argument, the prosecutor made the
following comments about Lesko's mitigating evidence concerning his
Good character and record. All of the character witnesses limited
their testimony to a certain period of time ... We heard about John
Lesko up to a certain point.
And I want you to consider that. John Lesko took the witness stand,
and you've got to consider his arrogance. He told you how rough it was,
how he lived in hell, and he didn't even have the common decency to
say I'm sorry for what I did. I don't want you to put me to death, but
I'm not even going to say that I'm sorry.
At the conclusion of his remarks, the prosecutor
urged the jurors to abide by their oaths to "follow the law" and not
to act like "social activists." He then stated that he could not stop
the jury from "show[ing] sympathy," adding:
So I'll say this: Show them sympathy. If you feel that way, be
sympathetic. Exhibit the same sympathy that was exhibited by these men
on January 3rd, 1980. No more. No more.
I want you to remember this: We have a death penalty for a reason.
Right now, the score is John Lesko and Michael Travaglia two, society
nothing. When will it stop? When is it going to stop? Who is going to
make it stop? That's your duty.
Lesko challenges both of the above statements. He
argues that the first remark was an impermissible comment on his
assertion of his fifth amendment privilege against self-incrimination.
He contends that the second comment constituted an "appeal to
vengeance" that was "so calculated to inflame the jury and deflect it
from its proper performance of its duty that it was in violation of
due process of law." Appellant's Brief at 30.
The sentencing phase of a death penalty trial is one
of the most critical proceedings in our criminal justice system. It is
clearly the most critical legal proceeding from the standpoint of the
defendant whose life is at stake. Because of the surpassing importance
of the jury's penalty determination, a prosecutor has a heightened
duty to refrain from conduct designed to inflame the sentencing jury's
passions and prejudices. Justice Sutherland's oft-quoted statement
about the unique role of a United States Attorney in criminal
prosecutions generally applies with particular force to the
prosecuting attorney in the penalty phase of a capital case.
The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that
it shall win a case, but that justice shall be done ... He may
prosecute with earnestness and vigor--indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct.
629, 633, 79 L.Ed. 1314 (1935).
We are particularly troubled by the prosecutor's
comment about Lesko's failure to express remorse, but we believe that
both remarks were improper. Considered cumulatively, the errors in the
prosecutor's penalty phase argument were not harmless under Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
1. Comment on Failure to Express Remorse
Lesko asserts that the prosecutor's remarks about
his failure to express remorse constituted a comment on his assertion
of his fifth amendment privilege against self-incrimination, in
violation of the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct.
1229, 14 L.Ed.2d 106 (1965), forbidding such comment. The appellees
counter that the prosecutor's statement should not be considered an
improper comment on Lesko's failure to testify, because Lesko did in
fact testify at the penalty phase. They also characterize the
challenged remark as an appropriate exhortation to the sentencing jury
to consider Lesko's demeanor.
We shall first examine the applicability of the
Griffin rule to the circumstances before us, and then discuss whether
the rule was violated in this case.
a. Applicability of Griffin
In Griffin, the Court held that the fifth
amendment's self-incrimination clause bars a prosecutor from
commenting to the jury on a defendant's failure to testify at trial.
The Court reasoned that "comment on the refusal to testify is a
remnant of the 'inquisitorial system of criminal justice,' which the
Fifth Amendment outlaws. It is a penalty imposed by courts for
exercising a constitutional privilege. It cuts down on the privilege
by making its assertion costly." 380 U.S. at 614, 85 S.Ct. at 1232-33
(quoting Murphy v. Waterfront Commission of New York Harbor, 378 U.S.
52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964)).
Without attempting to define the outer limits of the
fifth amendment privilege in death penalty sentencing proceedings, we
conclude that the Griffin rule is applicable in both the guilt and
penalty phases of a death penalty trial. We further conclude that a
capital defendant does not completely waive his Griffin rights by
testifying at the penalty phase solely on mitigating factors that are
wholly collateral to the merits of the charges against him.
Our first conclusion is mandated by the Supreme
Court's decision in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981). In that death penalty case, a psychiatrist had
testified for the state during the penalty phase, despite the fact
that the defendant had not been advised of his Miranda rights before
the psychiatric examination. The Court ruled that this testimony
violated the defendant's self-incrimination privilege, stating that "
'the availability of the [Fifth Amendment] privilege does not turn
upon the type of proceeding in which its protection is invoked, but
upon the nature of the statement or admission and the exposure which
it invites.' " Id. at 462, 101 S.Ct. at 1873 (quoting In re Gault, 387
U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967)). The Court
concluded that it could
discern no basis to distinguish between the guilt and penalty
phases of the respondent's murder trial so far as the protection of
the Fifth Amendment is concerned. Given the gravity of the decision to
be made at the penalty phase, the State is not relieved of the
obligation to observe fundamental guarantees. Any effort by the state
to compel respondent to testify against his will at the sentencing
hearing clearly would contravene the Fifth Amendment.
Id. at 462-63, 101 S.Ct. at 1873.
Considering the Court's emphatic language in Smith
v. Estelle, and its steadfast adherence to the essential principles of
believe that Griffin's protections apply equally to the guilt and
penalty phases of a death penalty trial.
Lesko provided testimony of a biographical nature at
the penalty phase of his trial. Clearly, then, he could not claim a
fifth amendment privilege against cross-examination or prosecutorial
comment on matters reasonably related to his credibility or the
subject matter of his testimony. See Harrison v. United States, 392
U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968) ("A
defendant who chooses to testify waives his privilege against
compulsory self-incrimination with respect to the testimony he gives
..."); cf. McGautha v. California, 402 U.S. 183, 217, 91 S.Ct. 1454,
1472, 28 L.Ed.2d 711 (1971) ("[T]he policies of the privilege against
compelled self-incrimination are not offended when a defendant in a
[non-bifurcated] capital case yields to the pressure to testify on the
issue of punishment at the risk of damaging his case on guilt.")
Furthermore, it is permissible for the prosecutor or the court to
advise the jury that it may draw an adverse inference from the
defendant's silence when the defendant has testified as to some facts
concerning the crime charged, but has refused to testify as to other
facts within his knowledge. See United States v. Weber, 437 F.2d 327,
334 (3d Cir.1970) (citing Caminetti v. United States, 242 U.S. 470,
494, 37 S.Ct. 192, 198, 61 L.Ed. 442 (1917)), cert. denied, 402 U.S.
932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971).
However, we do not believe that a defendant's
penalty phase testimony about mitigating factors that are wholly
collateral to the charges against him operates as a complete waiver of
the defendant's self-incrimination privilege or his rights under
Griffin. Under these circumstances, we believe that the Griffin rule
forbids prosecutorial comment about the defendant's failure to testify
concerning the merits of the charges against him.
This application of Griffin is consistent with the
principle--which was well-established at the time of Lesko's trial,
see Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989)--that a criminal defendant does not completely waive the fifth
amendment privilege by testifying solely on collateral or preliminary
matters. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct.
967, 976, 19 L.Ed.2d 1247 (1968) (defendant's testimony at pretrial
suppression hearing may not be admitted against him at trial); United
States v. Inmon, 568 F.2d 326, 332 (3d Cir.1977) (defendant's
testimony on hearing on double jeopardy claim may not be used against
defendant at trial); United States v. Branker, 418 F.2d 378, 380 (2d
Cir.1969) (defendant's testimony at appointment of counsel hearing may
not be admitted against him at trial); cf. United States v. Yurasovich,
580 F.2d 1212, 1218 (3d Cir.1978) (guilty plea constitutes "waiver of
Fifth Amendment rights solely with respect to the crime to which the
guilty plea pertains."). As in Griffin, the courts in these cases were
concerned with maintaining the vitality of the self-incrimination
privilege by not imposing a prohibitive cost on its exercise. This
concern is especially pronounced in the present context. Without the
protection of Griffin, a capital defendant in the penalty phase of his
trial could avoid prosecutorial comment about his failure to address
the charges against him only at the price of not providing what may be
his "life or death" testimony about collateral mitigating
circumstances. This is too high a price to require the accused to pay
for the maintenance of his fifth amendment privilege.
Although counsel has not cited, and our research has
not disclosed, any case that precisely addresses this issue, we
believe that Calloway v. Wainwright, 409 F.2d 59 (5th Cir.1969), cert.
denied, 395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969), is
instructive. In that death penalty case, the defendant testified at
trial for the limited purpose of challenging the voluntariness of his
confession. During closing argument, the prosecutor repeatedly
commented on the defendant's failure to testify about the substance of
the charges against him. The court rejected the state's contention
that the defendant's limited testimony constituted a complete waiver
of his fifth amendment privilege against self-incrimination, and held
that the prosecutor's comments violated Griffin. The court reasoned
the determination by the jury of the weight to be given to a
confession is a collateral issue and such determination does not
directly relate to the issue of guilt. Cf. Simmons v. United States,
390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Under these
circumstances the prosecutor cannot draw unfavorable inferences from
the failure of the accused to testify on the merits of the accusation.
In contrast to Calloway's testimony about the
voluntariness of his confession,
Lesko's penalty phase testimony about this childhood, family
background, and schooling did not bear even a tangential relationship
to the substance of the charges against him.
We do not believe that Lesko's limited testimony constituted a waiver
of his right under Griffin to be free from prosecutorial comment about
his failure to testify about the merits of the prosecution's case.b.
Violation of Griffin
Having concluded that Lesko retained the protection
of the Griffin rule, we must now determine whether the challenged
comments violated that rule, or whether, as the appellees assert, the
prosecutor's statement was simply an appropriate reference to Lesko's
demeanor at trial.
Our well-established test for determining whether a
prosecutor's remark violates Griffin is " 'whether the language used
was manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure of
the accused to testify.' " Bontempo v. Fenton, 692 F.2d 954, 959 (3d
Cir.1982) (quoting United States v. Chaney, 446 F.2d 571, 576 (3d
Cir.1971)), cert. denied, 460 U.S. 1055, 103 S.Ct. 1506, 75 L.Ed.2d
935 (1983). In making this determination, we must examine the
challenged prosecutorial remark in its trial context. United States v.
Robinson, 485 U.S. 25, 31-33, 108 S.Ct. 864, 868-70, 99 L.Ed.2d 23
(1988); Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct. 2954, 2959, 57
L.Ed.2d 973 (1978).
Under this test, the prosecutor's remarks
constituted an impermissible comment on Lesko's failure to testify on
the merits. The prosecutor asked the jury to consider Lesko's "arrogance"
in taking the "witness stand" to present mitigating evidence about his
background, without even having the "common decency to say I'm sorry
for what I did." The prosecutor then parodied the gist of Lesko's
testimony: "I don't want you to put me to death, but I'm not even
going to say that I'm sorry." Tr. at 1697. To the jury, the natural
and necessary interpretation of these comments would be that Lesko had
a moral or legal obligation to address the charges against him--indeed,
to apologize for his crimes--during his penalty phase testimony, and
that the jury could and should punish him for his failure to do so.
We need not reach the broad question of whether, and
to what extent, a defendant's demeanor is relevant to the sentencing
determination in a death penalty case, because we do not consider that
the prosecutor's comments in this case were a simple reference to
demeanor. Fairly construed, the prosecutor's remark was a condemnation
of Lesko's failure to testify about his role in the events surrounding
the Miller homicide. Clearly, such testimony would have been self-incriminating.
(It also would have almost certainly contradicted Lesko's steadfast
position throughout the trial that he did not intend to kill Officer
Miller, but was simply a passive observer to the shooting. See People
v. Coleman, 71 Cal.2d 1159, 80 Cal.Rptr. 920, 459 P.2d 248, 254
(1969); Owen v. Texas, 656 S.W.2d 458, 459-60 (Tex.Cr.App.1983) (en
banc)). Thus, we
conclude that the prosecutor's criticism of Lesko's failure to express
remorse penalized the assertion of his fifth amendment privilege
against self-incrimination, in violation of the rule in Griffin v.
We believe that the conclusion of the prosecutor's
closing argument was improper in two important respects. First, the
prosecutor's comments were "directed to passion and prejudice rather
than to an understanding of the facts and of the law." United States
ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir.1976), cert.
denied, 430 U.S. 972, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). Although
he could properly counsel the jury to avoid emotional responses that
were not rooted in the trial evidence, see California v. Brown, 479
U.S. 538, 542-43, 107 S.Ct. 837, 839-40, 93 L.Ed.2d 934 (1987), and
could argue in favor of the purposes of the death penalty, including
the objectives of retribution and deterrence, see Gregg v. Georgia,
428 U.S. 153, 183-87, 96 S.Ct. 2909, 2929-32, 49 L.Ed.2d 859 (1976) (Opinion
of Stewart, Powell, and Stevens, JJ.), the prosecutor exceeded the
bounds of permissible advocacy by imploring the jury to make its death
penalty determination in the cruel and malevolent manner shown by the
defendants when they tortured and drowned William Nicholls and shot
In Drake v. Kemp, 762 F.2d 1449, 1458 (11th
Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 738
(1986), the court considered the propriety of a prosecutor's
quotations in his closing argument from century-old Georgia Supreme
Court opinions that condemned "that sickly sentimentality that springs
into action whenever a criminal is at last about to suffer for a crime
..." and "the false humanity that starts and shudders when the axe of
justice is ready to strike." The court held that these remarks were
improper, explaining that
[t]he ultimate power of the jury to impose life [imprisonment], no
matter how egregious the crime or dangerous the defendant, is a
tribute to the system's recognition of mercy as an acceptable
sentencing rationale.... Thus, the suggestion that mercy is
inappropriate was not only a misrepresentation of the law, but it
withdrew from the jury one of the most central sentencing
considerations, the one most likely to tilt the decision in favor of
Id. at 1460. Although the prosecutor's remarks in
Drake were stronger and lengthier than the ones at issue here, the
comments in this case were similarly calculated to incite an
unreasonable and retaliatory sentencing decision, rather than a
decision based on a reasoned moral response to the evidence.
Second, the prosecutor's suggestion that the jury
had a "duty" to even the "score," which stood at "John Lesko and
Michael Travaglia two, Society nothing," invited the jury to impose
the death sentence not only for the Miller murder, but also for the
Nicholls murder--a crime to which Lesko had already pled guilty, and
for which he would be separately sentenced. As the appellees point
out, the sentencing jury could properly consider a prior murder
conviction as an "aggravating circumstance." 42 Pa.Cons.Stat.Ann. Sec.
9711(d)(10). However, the jury had no authority to impose the death
penalty for the Nicholls murder itself. The prosecutor's suggestion
that the jury had a "duty" to do so was clearly improper. See Rogers
v. Lynaugh, 848 F.2d 606, 611 (5th Cir.1988) (prosecutor's argument
that jury's sentence should include punishment for prior felony
convictions constituted an "exhortation to assess multiple punishments
for the same offense," in violation of the double jeopardy clause of
the fifth amendment).
On habeas review of prosecutorial comments in state
trials, we cannot rest with a determination that the remarks were
undesirable or inappropriate, because "not every trial error or
infirmity which might call for application of supervisory powers
correspondingly constitutes a 'failure to observe that fundamental
fairness essential to the administration of justice.' " Donnelly v.
DeChristoforo, 416 U.S. at 642, 94 S.Ct. at 1871 (quoting Lisenba v.
California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166
(1941)). Instead, "the relevant question is whether the prosecutors'
comments 'so infected the trial with unfairness as to make the
conviction a denial of due process.' " Darden v. Wainwright, 477 U.S.
168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting
Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871). We are not convinced
that, considered in isolation, the prosecutor's "appeal to vengeance"
would satisfy the stringent standards of Donnelly and Darden. However,
for the reasons stated in the next section, we believe that these
comments, considered together with the prosecutor's Griffin error,
necessitate habeas relief as to the death penalty.
3. Harmless Error
In Chapman, the Supreme Court held that federal
constitutional errors in criminal trials that are shown to be harmless
beyond a reasonable doubt do not require reversal of the conviction.
In Chapman, the inquiry into harmlessness was formulated as "whether
there is a reasonable possibility that the evidence complained of
might have contributed to the conviction." Id. 386 U.S. at 23, 87 S.Ct.
at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229,
230, 11 L.Ed.2d 171 (1963)). In reviewing improper prosecutorial
comments occurring in the penalty phase of a bifurcated capital case,
we will not consider the comments to be harmless unless the state has
demonstrated, beyond a reasonable doubt, that the remarks did not
change the jury's exercise of discretion in choosing between life
imprisonment or death. We shall also consider the Supreme Court's
statement that "although not every imperfection in the deliberative
process is sufficient, even in a capital case, to set aside a state-court
judgment, the severity of the sentence mandates careful scrutiny in
the review of any colorable claim of error." Zant v. Stephens, 462 U.S.
862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983).
Although the death penalty is not an
unconstitutionally disproportionate penalty in Lesko's case, see
Section II.F., infra, the evidence before the sentencing jury was not
so compelling or so overwhelming that we can declare with confidence
that the prosecutor's "appeal to vengeance" and his improper reference
to Lesko's failure to express remorse did not influence the jury's
sentencing decision. Counterbalanced against the prosecution's
aggravating evidence was significant mitigating evidence showing,
inter alia, that Lesko's participation in the homicide was relatively
minor, that he was a young man at the time of the offense, and that he
had a deprived and troubled childhood. See 42 Pa.Cons.Stat.Ann. Secs.
9711(e)(4), (e)(7), (e)(8). The jury apparently credited at least some
of Lesko's mitigating evidence, as it found that the aggravating
circumstances "outweigh[ed]" the mitigating circumstances. Tr. at
The trial judge instructed the jury that it should
base its penalty decision on the evidence, and not upon considerations
of sympathy for either the defendants or the victim. Tr. at 1706. See
Section II.E., infra. The judge also instructed the jury that "it is
entirely up to a defendant whether to testify, and you must not draw
any adverse inference from the fact that a defendant does not testify."
Tr. at 1706. However, these instructions were neither immediate, see
United States v. Dansker, 537 F.2d 40, 63 (3d Cir.1976) ("immediate
cautionary instructions" could "insure[ ] that no juror would
misconstrue the prosecutor's statement as an adverse comment on [defendant's]
failure to testify"), cert. denied sub nom. Valentine v. United States,
429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977), nor did they
specifically address the prosecutor's errors. See United States v.
Adamo, 534 F.2d 31, 40 (3d Cir.) (district court instruction
sufficient to cure possible ambiguity in prosecutor's remark that
allegedly violated Griffin ), cert. denied sub nom. Kearney v. United
States, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). Thus, these
instructions did not render the prosecutor's remarks harmless.
In sum, given Lesko's mitigating evidence, and
considering the prosecutor's Griffin violation and "appeal to
vengeance" in context, we conclude that the errors in the prosecutor's
closing argument were not harmless.
D. Exclusion of veniremember
Lesko argues that the trial court's exclusion for
cause of a veniremember who had expressed her personal opposition to
the death penalty violated Witherspoon v. Illinois, 391 U.S. 510, 522,
88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968), which held that "a
sentence of death cannot be carried out if the jury that imposed or
recommended it was chosen by excluding veniremen for cause simply
because they voice general objections to the death penalty or
expressed conscientious or religious scruples against its infliction."
During her examination by the prosecutor,
veniremember Esther Kroh, a seventy four year old woman, denied that
she had "any conscientious scruples against imposing the death penalty,"
and stated that she could vote "either way" if the jury was called
upon to determine whether to sentence the defendants to life
imprisonment or to death. Jury Selection Transcript at 255-56. At the
conclusion of his examination, the prosecutor stated that Ms. Kroh was
"acceptable to the prosecution." Id. at 258.
Ms. Kroh's views on capital punishment were further
probed during her examination by Travaglia's attorney.
Q: Well, let me ask this ma'am: as regards the death
penalty, should the jury return a verdict against either one or both
of these defendants for first degree murder, are your feelings about
the death penalty such that if you had to make a decision as to
whether to impose the death penalty or impose a sentence of life,
simply because the victim in this case was a police officer, would you
then irrespective of the other evidence that you heard vote
automatically for the death penalty?
A: No sir, I'm opposed to the death penalty.
COUNSEL: This witness is acceptable to the defendant.
THE COURT: Are you saying under all circumstances, that
irrespective of what evidence was given to you, because you are
opposed to the death penalty, you could not participate in imposing
the death penalty upon somebody, irrespective of what evidence was
given to you?
A: Well, I am opposed, yes.
THE COURT: You're opposed to the death penalty?
After counsel for both defendants stated that Ms.
Kroh was acceptable as a juror, the prosecution moved that she be
excused for cause, stating that her responses to defense counsel were
"directly opposed" to the statements she had made to him. Id. at
261-62. The court granted this motion, ruling that "under the
situation as observed and determined by this Court, this juror is not
qualified to serve." Id. at 262.
The Supreme Court has never retreated from its
essential position in Witherspoon that "[a] man who opposes the death
penalty, no less than one who favors it, can make the discretionary
judgment entrusted to him by the State and can thus obey the oath he
takes as a juror." 391 U.S. at 519, 88 S.Ct. at 1775. See Lockhart v.
McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137 (1986)
("[T]hose who firmly believe that the death penalty is unjust may
nevertheless serve as jurors in capital cases so long as they state
clearly that they are willing to temporarily set aside their own
beliefs in deference to the rule of law."). Despite certain language
in Witherspoon that might have implied a broader standard,
however, the Court has held that a trial court may properly excuse a
juror for cause if that individual's opposition to capital punishment
"would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath."
Wainwright v. Witt, 469 U.S. 412, 421, 105 S.Ct. 844, 850, 83 L.Ed.2d
841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521,
2526, 65 L.Ed.2d 581 (1980)). The Witt Court believed that this
standard was more practical than any bright-line test of juror bias,
because "many veniremen simply cannot be asked enough questions to
reach the point where their bias has been made 'unmistakably clear';
these veniremen may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate, or may
wish to hide their true feelings." Id. at 424-25, 105 S.Ct. at 852.
The Court also held that a state trial court's determination that a
particular veniremember is impermissibly biased against the death
penalty is essentially a factual finding that is entitled to a "presumption
of correctness" under 28 U.S.C. Sec. 2254(d). Id. at 426-29, 105 S.Ct.
Turning to the present case, we conclude that the
trial judge did not err in excluding Ms. Kroh for cause. Her
statements on voir dire establish a likelihood that her opposition to
capital punishment would have substantially impaired her ability to
comply with the trial court's sentencing instructions. Although Ms.
Kroh initially stated to the prosecutor that she would be willing to
vote for the death penalty in a proper case, she later provided an
ambiguous response to defense counsel's query about whether "irrespective
of the evidence" she would "vote automatically for the death penalty"
for a defendant convicted of murdering a police officer. Ms. Kroh then
responded affirmatively to the court's inquiry about whether "under
all circumstances" and "irrespective of [the] evidence" her opposition
to capital punishment would prevent her from participating in a
decision to impose the death penalty.
Construed reasonably, and with the requisite
deference to the trial court's assessment of Ms. Kroh's demeanor, see
Witt, 469 U.S. at 434, 105 S.Ct. at 857, this last response was not
simply an expression of an abstract conscientious or philosophical
objection to capital punishment. See Maxwell v. Bishop, 398 U.S. 262,
264-65, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221 (1970). Ms. Kroh's
response was an affirmation that her personal opposition to the death
penalty would prevent her from considering the full range of lawful
penalties. In this respect, her comments are indistinguishable from
those that the Witt Court found sufficient to justify exclusion from
the jury. Id. 469 U.S. at 415-16, 105 S.Ct. at 847-48. Accordingly, we
hold that the trial court did not commit reversible error in excluding
Ms. Kroh for cause.
E. Anti-sympathy Instruction
Lesko contends that the trial court erred in giving
the following instruction to the jury at the conclusion of the penalty
phase of his trial.
Now, the verdict is for you, members of the jury. Remember and
consider all of the evidence, giving it the weight to which you deem
it is entitled. Your decision should not be based on sympathy, because
sympathy could improperly sway you into one decision--into a decision
imposing the death sentence, or could improperly sway you against the
decision of imposing the death sentence. There is sympathy on both
sides of that issue. Sympathy is not an aggravating circumstance; it
is not a mitigating circumstance.
Lesko asserts that this "anti-sympathy" instruction
impermissibly limited the jury's consideration of the mitigation
evidence presented at the penalty trial concerning his childhood and
family background, in violation of the holdings of Lockett v. Ohio,
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), that a
sentencing jury in a death penalty case must not be precluded from
considering as a mitigating factor any relevant aspect of the
defendant's background or record.
Although Lesko's argument may be based on a
plausible reading of Lockett and Eddings, we cannot consider those
opinions on a clean slate. Lesko's challenge is foreclosed by two more
recent Supreme Court decisions that have upheld substantially similar
anti-sympathy jury instructions.
In California v. Brown, 479 U.S. 538, 107 S.Ct. 837,
93 L.Ed.2d 934 (1987), the Court rejected a challenge to an
instruction that cautioned the jury not to be swayed "by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion or
The Court concluded that even if a juror focused on the judge's
instruction to avoid basing the sentencing decision on "mere sympathy,"
he or she "would likely interpret the phrase as an admonition to
ignore emotional responses that are not rooted in the aggravating and
mitigating evidence introduced in the penalty phase." Id. at 542, 107
S.Ct. at 840.
In Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257,
108 L.Ed.2d 415 (1990), the Court considered a challenge to an
instruction directing the sentencing jury in a capital case to "avoid
any influence of sympathy, sentiment, passion, prejudice, or other
arbitrary factor when imposing sentence." Id. 110 S.Ct. at 1259. Like
Lesko, Parks argued that the anti-sympathy instruction violated the
eighth amendment. However, the Court held that the principle Parks
urged could not be applied on federal habeas review, because it was a
"new rule" within the meaning of Teague v. Lane that was not dictated
by Supreme Court caselaw at the time his conviction became final in
1983. The Court
determined that the rationale of Lockett and Eddings did not preclude
the trial court from delivering its anti-sympathy instruction, stating
that nothing in those decisions
prevents the State from attempting to ensure reliability and
nonarbitrariness by requiring that the jury consider and give effect
to the defendant's mitigating evidence in the form of a "reasoned
moral response," rather than an emotional one. The State must not cut
off full and fair consideration of mitigating evidence; but it need
not grant the jury the choice to make the sentencing decision
according to its own whims or caprice.
Parks, 110 S.Ct. at 1262 (citations omitted).
Lesko attempts to distinguish Brown and Parks on the
basis of differences in the language of the challenged instruction in
his case, but these are differences of form, not substance. The
essential message of the present instruction is similar to that of the
anti-sympathy instructions reviewed by the Supreme Court: that the
sentencing determination should not be based solely on the juror's
emotional sensitivities, but on their evaluation of the actual
evidence concerning the crime and the defendant.
Thus, the anti-sympathy instruction in this case passes constitutional
Lesko's defense at trial is that he willingly joined
Travaglia and Rutherford on their mission to rob the convenience
store, but that he was merely a passive and unwitting observer to
Travaglia's shooting of Officer Miller. He was nevertheless convicted
of first degree murder and criminal conspiracy to commit murder. Lesko
argues that under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982), the death sentence is an unconstitutionally
disproportionate penalty for his participation in the Miller homicide.
In Enmund, the petitioner was sentenced to death
following his conviction for a murder committed during the course of a
botched robbery. He was not present at the scene of the crime, nor was
it shown that he intended to kill the victims. However, the record
supported an "inference" that he was in a car at the time of the
killings, waiting to help the robbers escape. Id. at 788, 102 S.Ct. at
3371. Under Florida law, this was sufficient to make him "a
constructive aider and abettor and hence a principal in first-degree
murder upon whom the death penalty could be imposed." Id.
The Supreme Court determined that the eighth
amendment barred imposition of a death sentence in these circumstances,
as the Florida procedure did not ensure that the penalty was
reasonably related to the petitioner's "personal responsibility and
moral guilt." Id. at 801, 102 S.Ct. at 3378. The Court reasoned that
the focus of the sentencing determination "must be on [Enmund's]
culpability, not on that of those who committed the robbery and shot
the victims, for we insist on 'individualized consideration as a
constitutional requirement in imposing the death sentence,' which
means that we must focus on 'relevant facets of the character and
record of the individual offender.' " Id. at 798, 102 S.Ct. at 3377 (citations
The Court applied its Enmund holding in Tison v.
Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), which
involved a challenge to death sentences imposed upon two brothers who
were convicted under Arizona's felony-murder and accomplice liability
statutes. The brothers assisted their father and another inmate in an
armed prison escape, and then participated in the armed robbery and
abduction of a family of four. The father and the other inmate then "brutally
murder[ed] their four captives with repeated blasts from their
shotguns." The brothers were not present at the immediate scene of the
killing, and both testified that they were "surprised" by the shooting.
However, neither defendant attempted to help the victims, who were
abandoned in the desert. Id. at 141, 107 S.Ct. at 1679.
The Supreme Court accepted the petitioners'
assertion that there was no evidence showing that they did not " 'intend
to kill' as that term has been generally understood in the common law."
Id. at 150, 107 S.Ct. at 1684. However, the Court nevertheless
concluded that on the facts before it, the death penalty was not an
unconstitutionally disproportionate sanction.
Enmund held that when "intent to kill" results in its logical
though not inevitable consequence--the taking of human life--the
Eighth Amendment permits the State to exact the death penalty after a
careful weighing of aggravating and mitigating circumstances.
Similarly, we hold that the reckless disregard for human life implicit
in knowingly engaging in criminal activities known to carry a grave
risk of death represents a highly culpable mental state, a mental
state that may be taken into account in making a capital sentencing
judgment when that conduct causes its natural, though also not
inevitable, lethal result.
Id. at 157-58, 107 S.Ct. at 1688.
Although the Tison Court did not attempt to define
the "particular types of conduct and states of mind warranting
imposition of the death penalty," it held that "major participation in
the felony committed, combined with reckless indifference to human
life, is sufficient to satisfy the Enmund culpability requirement." Id.
at 158, 107 S.Ct. at 1688.
We conclude that the evidence of Lesko's personal
involvement in the criminal episode culminating in the Miller homicide
satisfies both elements of Tison's fact-bound inquiry. The record
clearly establishes the first element--"major participation in the
felony committed." Like the Tison brothers, and unlike Enmund, Lesko
was "actively involved" and "physically present during the entire
sequence of criminal activity" culminating in the homicide. Id. at
158, 107 S.Ct. at 1688. His own post-arrest statement establishes that
he was a major actor in the plan to rob the Stop-and-Go store, and in
the subsidiary plan to lure Officer Miller into a high speed chase. Tr.
at 611-12, 614-18. Finally, Lesko was physically present when
Travaglia shot Officer Miller and he joined Travaglia and Rutherford
in fleeing the scene of the crime.
The evidence concerning Lesko's role in the criminal
episode surrounding the slaying of Officer Miller also satisfies
Tison's second requirement that the defendant act with a "reckless
indifference to human life." After the Nicholls murder, Lesko and
Travaglia directed Rutherford to obtain the bullets that were later
used to kill Officer Miller. In his post-arrest statement to the
police, Lesko acknowledged that he and his companions sped past
Officer Miller three times, at speeds up to ninety miles per hour, in
order to "draw the cop's attention" so that he would be lured into
chasing them. The trio hoped to "lose" Officer Miller during a high
speed chase so that they could "go and knock off the Stop-N-Go." In
their third and final attempt to goad Officer Miller into a pursuit,
the men drove directly toward the police car, swerving only when they
were "about three feet away from it." Id. at 611-12, 617-18.
Rutherford testified that during the car chase, Lesko advised him to "lay
down in the back, because it might turn into a shooting gallery." Id.
at 371. There was no evidence to suggest that Lesko made any effort to
dissuade Travaglia from pointing the gun at Officer Miller, or to aid
the officer after the shooting. Lesko later told a friend, Daniel
Keith Montgomery, that he also "wanted to" shoot Officer Miller.
According to Lesko's post-arrest statement to the police, he and his
companions escaped by driving some fifteen miles, and then fleeing on
foot. Id. at 612, 618.
In our view, Lesko's active and substantial role in
planning the armed robbery of the convenience store, his willing
participation in the scheme to lure Officer Miller away from the store
by means of a dangerous high speed car chase, and his obvious
indifference to the risks that this conduct posed to the police
officer, combine to establish a level of personal responsibility and
moral guilt sufficient to satisfy the constitutional standards set
forth in Enmund and Tison.
G. Jury discretion to consider voluntary
The trial court instructed the jury on first, second,
and third degree murder and voluntary and involuntary manslaughter as
to both defendants. The court's voluntary manslaughter charge, which
was given at the request of defense counsel, tracked the statutory
definition of the offense as a killing without lawful justification
committed while the actor is under a sudden and intense passion
resulting from serious provocation. 18 Pa.Cons.Stat.Ann. Sec. 2503(a).
Although the trial court believed that it was obligated to give the
charge regardless of the evidence,
the court also reasoned that a voluntary manslaughter charge might be
supported on the theory that the Miller homicide "result[ed] from a
negligent manner of doing a felonious act in the pointing of a deadly
weapon at a police office making an arrest or attempting to make an
arrest or stopping an individual...." Tr. at 1172-73.
Lesko now complains that the trial court introduced
an impermissible level of arbitrariness into the jury's sentencing
determination because it delivered a voluntary manslaughter
instruction "even though there was no evidence that defendant was
guilty of that charge." Appellant's Brief at 45. Citing Commonwealth
v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1981); Commonwealth v.
Whitfield, 474 Pa. 27, 376 A.2d 617 (1977); and Commonwealth v. Jones,
457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316,
42 L.Ed.2d 274 (1974), he asserts that the Pennsylvania Supreme Court
has "unequivocally held that every defendant on trial for first degree
murder is absolutely entitled upon request to have the lesser included
charges of third degree murder and voluntary manslaughter submitted to
the jury regardless of the evidence." Appellant's Brief at 45. Lesko
contends that this practice violates the plurality decision in Roberts
v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976),
which invalidated Louisiana's death penalty statute because, among
other defects, the trial court was required to charge on non-capital
degrees of murder and manslaughter even if the evidence did not
support the lesser verdicts.
Contrary to Lesko's characterization of the
Pennsylvania law as "unequivocal," recent Pennsylvania decisions have
eviscerated the rule enunciated in Commonwealth v. Jones that,
regardless of whether the evidence supports such a charge, "a
defendant under indictment of murder will be entitled, upon request,
to have the jury advised of its power to return a verdict of voluntary
manslaughter." 457 Pa. 563, 573-74, 319 A.2d 142, 148 (Pa.1974) (Nix,
J., opinion for an equally divided court in support of affirmance) (emphasis
However, like the trial court, we will assume that Lesko was entitled,
under the governing Pennsylvania caselaw at the time of his trial, to
the requested voluntary manslaughter instruction even if the evidence
did not support such a charge.
We nevertheless conclude that the trial court did
not err in granting counsel's request for this instruction. As an
initial matter, we agree with the observation of the Pennsylvania
Supreme Court that "it would be anomalous to allow a defendant to
request instructions on all degrees of homicide and then complain that
the practice requires the vacating of his sentence of death because it
introduces an element of arbitrariness into the process." Commonwealth
v. Frey, 504 Pa. 428, 450, 475 A.2d 700, 711, cert. denied, 469 U.S.
963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). However, assuming arguendo
that the trial evidence could not support a voluntary manslaughter
verdict, we do not believe that the fact that the court instructed on
that offense violates the rationale of Roberts. The principal defect
of the capital punishment scheme overturned in Roberts was Louisiana's
mandatory death penalty for first degree murder, which prevented the
court from considering in its sentencing determination any "mitigating
factors presented by the circumstances of the particular crime or by
the attributes of the individual offender." 428 U.S. at 333-34, 96
S.Ct. at 3006. Thus, Louisiana's practice of instructing the jury on
all degrees of homicide, regardless of the evidence, plainly invited
the jury "to disregard their oaths and choose a verdict for a lesser
offense whenever they feel that the death penalty is inappropriate."
Id. at 335, 96 S.Ct. at 3007. In the plurality's view, "[t]he
Louisiana procedure neither provides standards to channel jury
judgments nor permits review to check the arbitrary exercise of the
capital jury's de facto sentencing discretion." Id.
The former Pennsylvania practice in first degree
murder cases of charging on lesser degrees of homicide, regardless of
the evidence, is not analogous to the situation addressed in Roberts.
Unlike Louisiana's mandatory death penalty law, Pennsylvania's death
penalty statute provides adequate standards to guide the sentencing
determination, and permits the sentencing jury to "consider and give
effect to all mitigating evidence." Blystone v. Pennsylvania, --- U.S.
----, ----, 110 S.Ct. 1078, 1082, 108 L.Ed.2d 255 (1990). See also
Zettlemoyer, 923 F.2d at 293 ("[The] unrestricted consideration of
mitigating circumstances [under the Pennsylvania death penalty statute]
clearly meets the Eighth Amendment's requirements."). Under
Pennsylvania's scheme, unlike Louisiana's, a jury considering a first
degree murder charge is not likely to return a verdict for an
unsupported non-capital charge simply because the circumstances of the
crime or the defendant do not warrant the extreme sanction of death.
Instead, a Pennsylvania jury is able to return a first degree murder
verdict with confidence that it will later have the opportunity to
decide whether to impose a death sentence.
The non-mandatory nature of the Pennsylvania's death
penalty, the jury's ability to consider the full range of mitigating
evidence, the standards guiding the jury's sentencing discretion, and
the meaningful state appellate review of death penalty cases fully
meet the concerns expressed by the Roberts plurality about the
potential for arbitrary results arising from an instruction on an
unsupported non-capital verdict. Thus, the trial court's voluntary
manslaughter instruction was not a constitutional error.
H. Defendant's Burden to Establish Mitigating
Circumstances by a Preponderance of the Evidence
Lesko argues that Pennsylvania's death penalty
statute is unconstitutional because it provides that "mitigating
circumstances must be proved by the defendant by a preponderance of
the evidence." 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1)(iii). However, the
Supreme Court recently considered, and rejected, a similar challenge
to Arizona's death penalty statute. In his plurality opinion in Walton
v. Arizona, --- U.S. ----, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990),
Justice White concluded that imposing such a burden on capital
defendants does not violate the constitution.
So long as a State's method of allocating the burdens of proof does
not lessen the State's burden to prove every element of the offense
charged, or in this case to prove the existence of aggravating
circumstances, a defendant's constitutional rights are not violated by
placing on him the burden of proving mitigating circumstances
sufficiently substantial to call for leniency.
Id. 110 S.Ct. at 3055 (citation omitted).
Under Pennsylvania's death penalty statute, the
Commonwealth is not relieved of its burden to prove every element of
the offense and to establish the existence of aggravating
circumstances. Furthermore, the statute allows the sentencing jury to
evaluate and give effect to the full range of relevant mitigating
evidence. Blystone, 110 S.Ct. at 1082. Therefore, we find no
constitutional defect in Pennsylvania's requirement that a capital
defendant prove mitigating circumstances by a preponderance of the
I. Admission of Evidence of Nicholls Murder
Lesko asserts that his due process rights were
violated by the introduction of evidence at the guilt phase of his
trial concerning the "gruesome details" of the Nicholls murder. He
argues that this evidence was relevant only to establish "bad
character," and not to show intent or motive. However, we have
determined this issue adversely to Lesko in our prior decision, in
which we held that the evidence of the prior crime was probative of
intent and motive, and that it was not unduly prejudicial. We then
given the probative value of Rutherford's testimony as to Lesko's
motive to kill Officer Miller, and to refute his self-portrayal as a
passive observer, we do not find that the prejudicial impact [of the
evidence of the Nicholls murder] outweighs its probative value--no
less that it does so in a manner so conspicuously as to rise to the
level of a constitutional violation.
Because we are bound by the holding of the prior
panel opinion, we
must decline Lesko's invitation to reexamine this issue.
Given the lengthy and tortured procedural history of
this case, and the emotional responses evoked by capital punishment
cases generally and by this case in particular, a brief comment is
appropriate on our decision to remand this case for additional
Whatever views one might have on capital punishment,
one must acknowledge that this intermediate appellate court is not the
final arbiter of either the legality or morality of the death penalty.
So long as this sanction remains in use, one must further concede that
no rational purpose is served by drawn out and repetitive litigation
that simply delays the ultimate resolution of death penalty matters.
However, it also cannot be denied that the very nature of capital
punishment demands a scrupulous inquiry into the adequacy of state
court evidentiary hearings in death cases. The importance of this
inquiry was well stated by the Supreme Court in Ford v. Wainwright,
477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
In capital proceedings generally, this Court has demanded that
factfinding procedures aspire to a heightened standard of reliability.
See, e.g., Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d
340 (1984). This especial concern is a natural consequence of the
knowledge that execution is the most irremediable and unfathomable of
penalties; that death is different. See Woodson v. North Carolina, 428
U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.).
Although the condemned prisoner does not enjoy the same
presumptions accorded a prisoner who has yet to be convicted or
sentenced, he has not lost the protection of the Constitution
altogether; if the Constitution renders the fact or timing of his
execution contingent upon establishment of a further fact, then that
fact must be determined with the high regard for truth that befits a
decision affecting the life or death of a human being.
477 U.S. at 411, 106 S.Ct. at 2602 (plurality
For the reasons stated in this opinion, we will
reverse the judgment under review to the extent that it sustains the
imposition of the death penalty. We will remand to the district court
for the holding of an evidentiary hearing on the appellant's claim
that his Indiana County guilty plea was not voluntary and for the
subsequent issuance of the writ insofar as the death penalty is
We will direct the district court to issue the writ
subject to the holding of a state court resentencing proceeding within
a reasonable period of time to be set by the district court. If the
district court determines, on the basis of the evidentiary hearing
described in the last paragraph, that the appellant's Indiana County
guilty plea was not voluntary, the writ shall be issued subject to the
additional requirement that evidence of the guilty plea not be
introduced at the resentencing proceeding.
We will affirm the judgment under review to the
extent that it sustains the determination of appellant's guilt.