IN THE SUPERIOR COURT OF PENNSYLVANIA … THE SUPERIOR COURT OF PENNSYLVANIA SITTING AT PHILADELPHIA...

IN THE SUPERIOR COURT OF PENNSYLVANIASITTING AT PHILADELPHIA

EDA 2005 NO. 1711

COMMONWEALTH OF PENNSYLVANIA

VS.

EDWARD BATZIG,Appellant

BRIEF FOR APPELLANT

Appeal From The Judgment Of Sentence Of The Court OfCommon Pleas Of Philadelphia County, Tria! Division,Criminal Section, Order Entered May 5, 2005, Imposed OnInformation No. 1389 1/4, June Term, 2003.

BRADLEY S. BRIDGE,Assistant Defender

OWEN W. LARRABEE,Assistant Defender

Deputy Chief, Appeals DivisionKARL BAKER, Assistant DefenderChief, Appeals DivisionELLEN T. GREENLEE, DefenderDefender Associationof Philadelphia1441 Sansom StreetPhiladelphia, Pennsylvania 19102Identification No. 00001(215) 568-3190

CONSTANCE DE LA VEGAFrank C. Newman InternationalHuman Rights ClinicUniversity of San Francisco

School of Law

May, 2008

BRIAN J. FOLEY, VisitingAssociate Professor of LawDrexel University Earle MackSchoo! of LawPhiladelphia, PA

MICHELLE LEIGHTONDirector Human Rights ProgramsCenter for Law & GlobalJusticeUniversity of San FranciscoSchool of LawPhiladelphia, PA

MARSHA LEVICKLegal DirectorLAVAL S. MILLER-WILSONSenior AttorneyMIA V. CARPINIELLOStaff AttorneyJuvenile Law CenterThe Philadelphia Building1315 Walnut Street, 4th FloorPhiladelphia, PA 19107

TABLE OF CONTENTS

PAGE

III.

IV.

V.

VI.

STATEMENT OF JURISDICTION

STATEMENT OF SCOPE AND STANDARDOF REVIEW

STATEMENT OF QUESTIONS INVOLVED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

1

2

3

4-7

8-9

10-66

I. IT WAS ERROR TO DENY THE MOTION TOSUPPRESS WHERE THE SUPPRESSION JUDGE FOUNDTHAT THE OFFICER’S STATEMENT DURING QUESTION-ING WAS LIKELY TO ELICIT AN INCRIMINATINGRESPONSE AND THE OFFICER HAD NOT PRECEDED THATSTATEMENT WITH MIRANDA WARNINGS. 10-17

2. EDDIE BATZIG WAS DEPRIVED OF HISCONSTITUTIONAL RIGHT OF EQUAL PROTECTION ANDDUE PROCESS WHERE THE TRIAL COURT REFUSED TOEXCUSE FOR CAUSE A PROSPECTIVE JUROR WITH AFIXED OPINION THAT WHOEVER COMMITTED THISKILLING WAS GUILTY OF FIRST DEGREE MURDER. 17-23

3. THE INTRODUCTION IN A JOINT TRIAL OF THEINCRIMINATORY STATEMENTS OF A NON-TESTIFYINGCO-DEFENDANT DENIED EDDIE BATZIG HIS CONSTI-TUTIONAL RIGHTS TO CONFRONT THE WITNESSESAGAINST HIM. 23-28

4. WHERE NEITHER EDDIE BATZIG NOR HIS CO-DEFENDANTS WERE ELIGIBLE TO BE SENTENCED TODEATH IT WAS ERROR FOR HIS GUILT TO BEDETERMINED BY A DEATH QUALIFIED JURY AND TOEXCLUDE FROM SERVICE JURORS QUALIFIED TO SITIN A NON-CAPITAL JURY TRIAL. 28-34

ii

Schall v. Martin, 467 U.S. 253 (1984) ........... 53

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ....... 53

Smith v. Texas, 311 U.S. 128 (1940) ............ 30

Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003) ...... 39

Stanford v. Kentucky, 492 U.S. 361 (1989) ......... 50

Paquete Habana, 175 U.S. 677 (1900) ............ 59

Zschernig v. Miller, 389 U.S. 429 (1968) .......... 55

STATE CASES

Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717 (2000) 36

Commonwealth v. Buck, 551 Pa. 184, 709 A.2d 892 (1998) 33

Commonwealth v. Carter, 855 A.2d 885 (Pa. Super. 2004), appealdenied, 581 Pa. 670, 863 A.2d 1142 (2004) 61

Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977) 41

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), cert.denied, 127 S.Ct. I01 (2006) .......... 41

Commonwealth v. DeJesus, 567 Pa. 415, 787 A.2d 394 (2001) 15

Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978)63

Commonwealth v. Dye, 765 A.2d 1123 (Pa. Super. 2000) .... 18

Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) 61

Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898 (2004) 35

Commonwealth v. Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422(1995) ..................... 19

Commonwealth v. Inqber, 516 Pa. 2, 531 A.2d Ii01 (1987) 19,22

Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509 (1982)22,23

Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978) 19

Commonwealth v. Kocher, 529 Pa. 303, 602 A.2d 1308 (1992) 62

Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999) 18,41

V

Commonwealth v. Kratsas, 564 Pa. 36, 764 A.2d 20 (2001) 32

Commonwealth v. Lucas, 424 Pa. Super. 173, 622 A.2d 325 (1993) 62

Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203 (1997) 38

Commonwealth v. Miller, 897 A.2d 1281 (Pa. Super., 2006) 37

Commonwealth v. 0verby, 570 Pa. 328, 809 A.2d 295 (2002) 27

Commonwealth v. Presbury, 445 Pa. Super. 362, 665 A.2d 825 (1995)......................... 26

Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d I01 (1975) 63

Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131 (2001), cert.den., 535 U.S. 955 (2002) ............ 26

Commonwealth v. Reed, 300 Pa. Super. 224, 446 A.2d 311 (1982) 41

Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460 (2004)..................... 18,22,38

Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) 63

Commonwealth v. Strunk, 400 Pa. Super. 25, 582 A.2d 1326 (1990)62

Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131 (2001), cert.den., 535 U.S. 955 (2002) ............ 26

commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984) 63

Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987) 63

Commonwealth v. Wilson,911 A.2d 942 (Pa. Super. 2006) 46

Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert.denied, 461 U.S. 970 (1983) .......... 61

Naovarath v. State, 105 Nev. 525, 779 P.2d 944 (Nev. 1989) 64

Nicaragua v. U.S., 1986 I.C.J. 14, 98, para. 186 ...... 58

People v. Miller, 202 Il!. 2d 328 (2002) .......... 66

Reed v. Florida, 496 So. 2d 213 (Ct. of Appeals, Florida, 1986)33

State v. Corey, 339 S.C. 107, 529 S.E.2d 20 (S.C. 2000) 49

State v. St. Pierre, 584 A.2d 618 (Me. 1990) ........ 49

U.K.v. Norway, 1951 I.C.J. 116, 138-39 .......... 58

vi

Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968) ..... 64

STATE STATUTES

Ala. Code ~ 12-15-34 (1994 & Supp. 2005) .......... 48

Alaska Stat. § 12.55.125(a), (h), & (j)(LexisNexis 2004) 48

Ariz. Rev. Stat. Ann. ~ 13-501(A)(i) (2001 & Supp. 2005) 48

Ariz. Rev. Stat. Ann. § 13-501(B)(I) (2001 & Supp. 2005) 48

Ark. Code Ann. § 9-27-318 (2002 & Supp. 2005) ....... 48

Cal. Penal Code ~190.5(b) (Deering 2006) (no LWOP be!ow age 16)49’

Conn. Gen. Stat. Ann. ~46b-127 (West 2004 & Supp. 2005) 48

D.C.~Code § 22-2104(a) (2005) ............... 48

Del. Code Ann. Tit. I0, ~§ i010, I011 (1999 & Supp. 2004) 49

Del. Code Ann. Tit. ii, ~4209 (2005) ............ 49

Fla. Stat. §775.082, (2005) ................ 49

Fla. Stat. § 985.225 (2005) ................ 49

Ind. Code Ann. ~35-50-2-3(b) (LexisNexis 2002) (no LWOP below age16) ........... ¯ ........... 49

Iowa Code Ann. § 232.45 (6) (a) (West 2000 & Supp. 2006) 48

Kan. Stat. Ann. ~21-4622 (2005 Supp.) ........... 48

Ky. Rev. Stat. Ann. §532.025 (LexisNexis 1999 & Supp. 2005) 48

Ky. Rev. Stato Ann. ~ 635.020, 640.010 (LexisNexis 1999 & Supp.2005) ..................... 48

Mass. Gen. Laws Ann. ch. 119, ~ 72(b) (West 2003 & Supp. 2005) 48

Me. Rev. Stat. Ann. Tit. 15, § 3101 (2003 and West Supp. 2005) 49

Me. Rev. Stat. Ann. Tit. 17-A, § 1251 (West Supp. 2005) 49

Mich. Comp. Laws Ann. ("M.C.L.A.")~ 712A.4 ......... 49

Minn. Stat. Ann. ~ 260B.125 (2003 & Supp. 2006) ...... 48

Miss. Code Ann., § 43-21-151(a) (West 1999) ........ 48

vii

Miss. Code Ann., § 43-21-157(8) (West 1999 & Supp. 2005) 48

Mo. Ann. Stat. ~ 211.071 (West 2004 & Supp. 2006) ..... 48

Mont. Code Ann. § 41-5-206 (2005) ............. 48

Mont. Code Ann. ~46-18-222 (I) (Westlaw 2007) ..... 50,66

N.D. Cent. Code ~ 12.1-04-01 (1997) ............ 48

N.H. Rev. Stat. Ann. ~628:1(II) (Westlaw 2008) ....... 48

N.J. Stat. Ann. 2a:4A-26 (West 1987 & Supp. 2005) ..... 48

N.M. Stat. Ann. § 31-21-10 (Supp. 2005) ........... 48

Neb. Rev. Stat. ~ 28-105 .................. 49

Neb. Rev. Stat. ~ 29-2522 ................. 49

Neb. Rev. Stat. §~ 43-247, 43-276 ............. 49

Neb. Rev. Stat. § 43-276 ................. .. 49

Nev. Rev. Stat. Ann. ~ 194.010 ............... 48

Ohio Rev. Code Ann. ~2152.10(B) (LexisNexis 2002 & Supp. 2005)~ 48

Okla. Stat. Ann. Tit I0, § 7306-I.I(B) (West 1998 & Supp. 2006)48

Pa. Const., Article i, Section 9 .............. 32

R.I Gen. Laws ~Ii-23-2 .................. 49

R.I Gen. Laws § 12-19.2-4 (LEXISNexis 2002) ........ 49

R.I Gen. Laws § 12-19-11 ................. 49

R.I Gen. Laws ~ 14-1-7(2002) ............... 49

S.C Code Ann. § 17-25-45 (2005) .............. 49

S.C Code Ann. ~20-7-7605(6) (Westlaw 2006)Tenn. Code Ann. ~ 37-1-134 (a) (I) (2005)

Tenn. Code Ann. ~§ 39-13-202, 204 (2003)

......... 49.......... 49

Tex. Fam. Code Ann. ~ 54.02 ................ 49

Utah Code Ann. S 78-3a-502(3) (2002) ............ 49

Va. Code Ann. § 16.1-269.1 (2003 & Supp. 2005) ....... 49

viii

Vt. Stat. Ann. tit. 33, ~ 5506 (1998) ........... 49

W. Va. Code § 49-5-10 (Michie Supp. 2004) ......... 49

W. Va. Code ~ 49-5-I0(e) .................. 49

W. Va. Code ~ 49-5-13(e) (Michie Supp. 2005) ........ 49

W. Va. Code ~§61-2-2, 62-3-15 ............... 49

Wash. Rev. Code Ann. ~ 13.040.030 (Westlaw 2006), Wash. Rev. CodeAnn. ~13.040.II0 (Westlaw 2006) ....... 49

Wis. Stat. Ann. ~§ 938.18, 938.183 (West 2000 & Supp. 2005) 49

Wyo. Stat. Ann. ~ 14-6-203(f) (3) (2005) .......... 49

Wyo. Stat. Ann. § 14-6-237 (2005) ............. 49

MISCELLANEOUS

De la Vega, C. and Brown, J., "Can a United States TreatyReservation Provide a Sanctuary for the Juvenile DeathPenalty?" 32 U.S.F.L. Rev. 735, 759-762 (1998) 58

Report, Human Rights Watch, The Rest of Their Lives: Life WithoutParole for Child Offenders in the United States, Table5 at 35 .................... 51

18 PaIC.S.A. ~ 308 ..................... 35

18 Pa.C.S.Ao ~iI02 ..................... 45

18 Pa.C.S.A. ~§ 1102, 9711 (West 1998 & Supp. 2005), 61 Pa.C.S.A.~ 331.21 (West 1999 & Supp. 2005) ....... 49

18 Pa. C.S.A. ~ 1102 .................... 65

39 U.N. GAOR Supp ..................... 57

42 Pa. C.S.A. §74~2. II ................... 1

42 Pa.C.S.A. ~ 6302 (Westlaw 2006) ............ 49

44 U.N. GAOR Supp ..................... 59

660 U.N.T.S. 195 ...................... 58

705 Ill. Comp. Stato Ann. 405/5-130(4) (a) (Westlaw 2006) 48

999 U.N.T.S. 171 ...................... 56

ix

C.R.S.A. section 17-22.5-104 (IV) (2006) .......... 48

C.R.S.A. section 17-22.5-104 (IV) (2006) .......... 50

Haw. Rev. Stat.Ann. ~ 571-22 (LexisNexis 2005 & Supp. 2005) 49

Idaho Code Ann. ~ 18-4004 (Michie 2004) .......... 49

Idaho Code Ann. ~ 20-509(3)-(4) (Michie 2004) ....... 49

Idaho Code Ann. ~§ 20-508, 20-509 (Michie 2004) ...... 49

Jud. Proc. ~ 3-8A-06(West 2002 & Supp. 2005) ........ 49

La. Child. Code Ann. art. 305 (West 2004) ......... 48

M.C.L.A. ~ 769.1 ...................... 49

M.C.L.A. ~750.316 ..................... 49

M.C.L.A. §791.234 (6) .................... 49

M.C.L.A. § 791.244 ..................... 49

Md. Code Ann., Crim. Law ~§ 2-202, 2-203, 2-304 (Michie 2002) 49

N.Y. McKinney’s Penal Law §~125.25(5),125.26,125.27 . . . . 49

N.Y. McKinney’s Penal Law § 490.25 and 490.25(d) ...... 49

PA.CONST., Art. I, §~ 6, 9 ................. 18

Pa. CONST. Art. I, ~9 ................. 34,39,40

S.D. Codified Laws ~26-ii-3.1 (2004) ............ 49

Tex. Penal Code §8.07 ................... 49

U.S.CONST., Amend. V, XIV

U.S.CONST., Amend. VI, XIV



................. 17

................. 18

............... 28,32

................. 34

U.S.CONST., Amend. V, VI, XIV ............... 35

U.S.CONST., Amend. VI, XIV ................. 39


x


U.S.CONST., Amend. VIII .................. 46

U.S.CONST., Amend. XIV ................... 46

U.S.CONST., Article VI, Clause 2 .............. 55

xi

I. STATEMENT OF JURISDICTION

This Court’s jurisdiction to hear an appeal from the judgment

of sentence of the Philadelphia Court of Common Pleas is

established by Section 2 of the Judiciary Act of 1976, P.L. 586,

No. 142, 92, 42 Pa. C.S.A. 9742.

1

II. STATEMENT OF SCOPE AND STANDARD OF REVIEW

Eight issues are presented in the instant appeal. Five issues

involve a legal conclusion: the propriety of the denial of the

motion to suppress statements, the failure to exclude for cause a

juror who declared that whoever killed the decedent in this case

was guilty of an intentiona! murder, failure to grant a severance

where the statement of a non-testifying co-defendant was admitted

into evidence, failure discharge the death qualified jury and grant

a mistrial when because of the United States Supreme Court’s

decision in Roper v. Simmons the case became non-capital and

whether in light of Roper v. Simmons, the Pennsylvania life without

parole statute could constitutionally be applied to a juvenile.

Therefore, this Court has a plenary standard of review.

Three issues involve the admission or exclusion of evidence:

the barring of a defense expert, the admission of gruesome

photographs and the overruling of defense objections to the

prosecutor’s closing argument. This Court reviews these errors

under an ~abuse of discretion" standard.

The scope of review is the entire record.

llI. STATEMENT OF THE QUESTIONS INVOLVED

Was it not error to admit Eddie Batzig’s statement into

evidence where the testimony at the motion to suppress established

that his statement was the result of custodial interrogation not

preceded by Miranda?

Was it not error to fail to excuse for cause a prospective

juror who admitted that he had formed a fixed opinion that the

instant crime was first degree murder?

Was it not error to deny severance where the statement of a

nontestifying co-defendant was introduced into evidence?

Was it not improper for Eddie Batzig’s guilt to be determined

by a death qualified jury and tO exclude from service qualified

jurors where, because of Roper v. Simmons, neither Eddie Batzig or

his co-defendants were eligible to be sentenced to death?

Was it not improper to exclude from testifying Eddie Batzig’s

expert witness where her opinion was that because of voluntary

intoxication and drug usage he was guilty of third degree murder?

Was it not improper to admit gruesome photographs of the

victim’s mangled body where the inflammatory nature of the

photographs outweighed their probative value?

Did not the prosecutor improperly vouch for his witness’

credibility in his closing argument?

Is it not unconstitutional to sentence a juvenile to life

imprisonment without the possibility of parole?

3

IV. STATEMENT OF THE CASE

A. Procedural History

Appellant, Eddie Batzig, was arrested on June 2, 2003, and

charged with the murder of Jason Sweeney, as contained in CP-51-CR-

0613891-2003. He went to trial before the Honorable Renee Caldwell

Hughes of the Philadelphia County Court of Common Pleas and a jury.

He was found guilty on March 9, 2005, of first degree murder,

robbery, conspiracy and possession of an instrument of crime (N.T.

3/9/05, 159-160).I He was sentenced on May 6, 2005, to life

imprisonment without the possibility of parole for murder, 10-20

years for robbery to be served consecutively, 10-20 years for

conspiracy to be served consecutively and 2½ to 5 years for

possessing instruments of crime to be served consecutively (N.T.

5/6/05, 49). A timely notice of appeal was filed on June 3, 2005.

A copy of the trial court’s opinion is attached as Exhibit

"A". A copy of Eddie .Batzig’s timely Preliminary Statement of

Matters Complained of on Appeal is attached as Exhibit "B". A copy

of the Revised Preliminary Statement of Matters is attached as

Exhibit ~C". A copy of the tria! court’s order accepting both

statements as timely filed is attached as Exhibit ~D".

The notes of testimony are referenced by the date of theproceeding and page. ~A" and "B" refer to multiple hearings on thesame day. As the court reporters did not distinguish between themultiple hearings on the same day, counsel has designated as "A"the first hearing that day; "B" is the second.

B. Pre-trial motions

The Honorable Benjamin Lerner denied the pre-trial motion to

sever Eddie Batzig’s case from co-defendant Dominic Coia (N.T.

4/23/04, 42; 6/25/04, 6).

Judge Hughes denied Eddie Batzig’s motion to suppress his

statement to the police even though she found that, prior to the

giving of Miranda warnings, the police confronted him with the fact

that another person had implicated him in Jason Sweeney’s murder

knowing full well that an incriminating response would be elicited

(N.T. 12/20/04, 102). Judge Hughes concluded that the giving of

Miranda warnings after the statement made the statement voluntary.

C. Tria!

Even though the Commonwealth did not seek the death penalty

against sixteen year old Eddie Batzig and Nicholas Coia, a death

qualified jury was selected because prosecutors were seeking the

death penalty against seventeen year old Dominic Coia. The very

first prospective juror questioned indicated that because of pre-

trial publicity he had formed the opinion that ~four kids" had

committed an intentional killing in this case; he just did not know

if the defendants on trial were the four responsible (N.T. 2/15/05,

94-96). A challenge for cause was denied and a peremptory

challenge was exercised against this juror (N.T. 2/15/05, ii0,

117) .

Ultimately, a death qualified jury was selected; the first

witness testified on February 28, 2005. The very next day the

United States Supreme Court Held that it was unconstitutiona! to

5

Sentence a juvenile to death. On March 2, 2005, defense counsel

moved for a mistria! because the instant case was no longer

capital. Judge Hughes denied this motion (N.T. 3/2/05 "B", 127).

The most critical Commonwealth witness was Justina Morley, an

alleged co-conspirator in Jason Sweeney’s murder. She testified

that the plan was for her to lure Jason Sweeney to an isolated area

with the promise of sex and then Dominic Coia, Nicholas Coia and

Eddie Batzig were to murder him and take his money (N.T. 3/1/05

"A", 112-116). She did lure Jason Sweeney and testified she was

present when Dominic Coia, Nicholas Coia and Eddie Batzig beat him

to death with a hammer, a hatchet and rocks (N.T. 3/1/05 ~A", 188-

200). They went through his pockets and took his money (N.T.

3/1/05 ~A", 213-215; 3/1/05 ~B", 13). In exchange for her

testimony, Justina.Morley pled guilty to third degree murder (N.T.

3/1/05 "B", 50-51).

Numerous witnesses testified on behalf of the Commonwealth

regarding the police investigation, the finding of Jason Sweeney’s

body, the statements made to the police by Dominic Coia and Eddie

Batzig. Judge Hughes barred a defense expert from testifying that

Eddie Batzig told her that on the day in question he had used drugs

and alcohol and that, based upon her expert opinion, he was unable

to form the specific intent to kill (N.T. 3/7/05, 5-15).

D. Post-trial motions

On May 4, 2005, defense counsel filed a motion challenging the

constitutionality of the juvenile life without parole sentence.

6

Judge Hughes denied the motion on May 6, 2005, and the matter

proceeded to sentencing (N.T. 5/6/05, 8-9).

V. SUMMARY OF ARGUMENT

The suppression judge heard from the police detective at the

motion to suppress. She found as a factual matter that when he

confronted Eddie Batzig with the fact that information established

that he was involved in the instant murder, he knew that an

incriminated response was likely. Hence, Miranda warnings should

have given prior to that confrontation.

A prospective juror indicated that he knew about the instant

crime and thought that whoever had committed it was guilty of first

degree murder. However, he was not sure if the defendants where

the ones that had committed the crime. It was error to deny a.

challenge for cause because the jury must be able to evaluate two

questions, what crime was committed and who committed it, and this

juror admitted he could only consider the second of the two.

The right of confrontation requires that a defendant be able

to confront the witnesses against him. The statement of a non-

testifying co-defendant was admitted in a joint trial. Eddie

Batzig could not confront this witness. Severance should have been

granted.

A capital jury was selected because the Commonwealth sought

the death penalty against Eddie Batzig’s juvenile co-defendant.

However, the day after the trial began the United States Supreme

Court in Roper v. Simmons struck down the juvenile death penalty.

A new jury should have been selected.

The trial judge excluded a defense expert that would have

testified that because of the use of drugs and alcohol, Eddie

8

Batzig could not have formed the specific intent to kill. The

judge erroneously excluded this expert because there was no trial

evidence as to Eddie Batzig’s drug/alcohol use. However, Eddie

Batzig’s admissions to his expert could have appropriately served

as the basis for the expert’s opinion.

Inflammatory photographs of the decedent’s mangled body were

admitted into evidence. They should have been excluded because

their inflammatory nature outweighed the probative value.

In closing to the jury the prosecutor repeatedly emphasized

that he had to make a deal with a co-defendant in order to present

her testimony so that the jury could learn what really happened.

This was improper vouching for the credibility of his witness.

The United States Supreme Court in Roper v. Simmons determined

that it was unconstitutional to execute juveniles. Their

reasoning, that studies show that juveniles can be rehabilitated,

and that their brains are yet not fully formed, applies similarly

to sentencing juveniles to imprisonment for life without the

possibility of parole. This Court should strike down a sentence of

life without parole for juveniles.

9

VI. ARGUMENT

I. IT WAS ERROR TO DENY THE MOTION TO SUPPRESS WHERE THE

SUPPRESSION JUDGE FOUND THAT THE OFFICER’S STATEMENT DURING

QUESTIONING WAS LIKELY TO ELICIT AN INCRIMINATING RESPONSE AND THE

OFFICER HAD NOT PRECEDED THAT STATEMENT WITH MIRANDA WARNINGS.

The law is clear that when a person is in custody, any police

interrogation must be preceded by Miranda warnings in order to

establish that the statements were voluntarily given and the

person’s constitutiona! rights were knowingly waived. Here Eddie

Batzig went voluntarily to the police station in order to assist

the police in their investigation. However, after their initial

conversation, the police uncovered evidence directly implicating

him in the murder of Jason Sweeney. The police went to

reinterrogate him and, without giving him Miranda. warnings,

disclosed to him the new incriminating evidence. The judge found

that the police disclosure of this incriminating evidence was

likely to induce an incriminating response. It did. As Miranda

warnings were required to ~have been given and were not, .~the

resulting statement should have been suppressed.

The motion to suppress was heard before the Honorable Renee

Caldwell Hughes on December 16 and 20, 2004. At that hearing

Detective Richard Reinhold testified that he and his partner were

conducting a homicide investigation following the discovery of the

Jason Sweeney’s body (N.T. 12/16/04, 23). They learned that Jason

Sweeney was supposed to have been at a party earlier with his

friends: Justina Morley, Eddie Batzig, Dominic Coia and Nicky Coia

i0

(N.T. 12/16/04, 25-26). The detectives went to speak with Eddie

Batzig on June 2, 2003 (N.T. 12/16/04, 26). They asked if he would

be willing to speak with the detectives at Homicide Headquarters

(N.T. 12/16/04, 29). They told Eddie’s mother that she was welcome

to come with them and sought her permission to speak to her son

(N.T. 12/16/04, 29-30). Mrs. Batzig gave them permission, but

could not come with the detectives because she had to go to work

(N.T.. 12/16/04, 29-30; 12/20/04, 11-12).

Eddie Batzig took the detectives to the home of Nicky Coia

where the detectives spoke with Nicky’s father (N.T. 12/16/04, 31).

Nicky Coia’s father came with Nicky to Homicide Headquarters (N.T.

i2/16/04, 31). Detective Reinhold spoke with Eddie Batzig in an

interview room (N.T. 12/16/04, 34). After obtaining biographical

information, the detective asked Eddie about Jason Sweeney (N.T.

12/16/04, 38-39). He did not give him Miranda warnings because he

considered Eddie to be a witness and not a suspect (N.T. 12/16/04,

42-43; 12/20/04, 13). Eddie said that he had last spoken to Jason

Sweeney on May 30, 2003, at 4 p.m. (N.T. 12/16/04, 42).

Detective Reinhold left the interview room and, at about 11:30

p.m., spoke to Detective Rossiter (N.T. 12/16/04, 45). Detective

Rossiter had been speaking to Justina Morley and he told Detective

Reinhold that Justina Morley had just told him that Eddie Batzig

had murdered Jason Sweeney and that she had been a witness to that

murder (N.T. 12/16/0~, 45; 12/20/04, 16-17). Detective Reinhold

then personally spoke to Justina Morley; she told the detective

that Eddie had murdered Jason Sweeney by striking him on the head

ii

with a hatchet or hammer (N.T. 12/20/04, 19). Detective Reinhold

made no efforts at that point to contact Eddie’s mother (N.T.

12/20/04, 34-35).

Based upon the new information that Eddie had murdered Jason

Sweeney, Detective Reinhold returned to the interview room ~to

confront him with the facts and warn him of his rights" (N.T.

12/20/04, 24). The detective "explained to him that we were

interviewing other people that were friends of his that were there

at that party that he spoke to us about, and now the information

was that he was involved in the murder of Jason Sweeney" (N.T.

12/20/04, 21). The following then occurred:

A (Detective Reinhold): I didn’t tell him itwas Justina Morley that was telling me, butabout what she said, yes.

Q (Defense counsel): The particulars that hewas involved as an active participant in thismurder, right?

A: Yes, sir.

Q: Al! right. He then after you said that tohim, he then told you that he was involved,right?

A: Yes, sir.

Q: All right. And then you warned him of hisrights, of his Miranda rights. Would that befair to say?

A: Yes, sir.

Q: And I have the chronology correct. Am Iright?

A: Yes, sir.

Q: Al! right. Why didn’t you warn him of hisrights before telling him that there was

12

information that suggested that he was anactive participant in this murder?

A: My intention was to inform. He had alreadymade a statement that he wasn’t involved.Justina Morley in her statement wasimplicating him, but for al! I knew that shewas just telling us that, trying to cover upfor somebody else. I didn’t know if what shewas saying was the truth or not. But when Iwent in, I was intending to warn him of hisrights but I wanted to inform him of the factsand find out, let him know where we were goingfrom then. I was going to warn him of hisrights. It was al! part of my leading intothat that I was telling him about what I hadjust found out, when he blurted out that hehad not told the truth and he wanted to tellme what happened.

N.T. 12/20/04, 25-26.

The detective agreed that Eddie then made some "inculpatory

statement about his involvement in the murder" (N.T. 12/20/04, 27).

See also N.T. 12/16/04, 46, 60; 12/20/04, 31. It was only after

Eddie made that incriminating statement that the detective finally

gave him Miranda warnings (N.T. 12/20/04, 26, 27). Eddie admitted

that he, Dominic Coia and Nicky Coia had beaten Jason Sweeney to

death and robbed him (N.T. 12/16/04, 48).

After taking an incriminating oral statement, Detective

Reinhold left the room to tell his lieutenant to contact Eddie’s

mother (N.T. 12/16/04, 49). Detective Reinhold returned and took

an inculpatory written statement (N.T. 12/16/04, 50-52; 59-72).

The detective did let Eddie have a non-private conversation with

his mother during the taking of the written inculpatory statement

(N.T. 12/16/04, 64-65). The police then took an inculpatory

videotaped statement from Eddie (N.T. 12/16/04, 77).

13

There were stipulations that Eddie Batzig had been previously

arrested on three occasions and had not made statements to the

police (N.T. 12/20/04, 60-62; 63-65; 65-67).

Judge Hughes denied the motion to suppress. Although Eddie

Batzig originally went to the police station to be questioned as a

witness, his status changed when Detective Reinhold learned

information that identified Eddie as a murderer. When Detective

Reinhold returned to the interrogation room to question Eddie, he

did so with the explicit purpose of confronting him with the

incriminating evidence and then giving him Miranda warnings.

However, after being confronted with the fact that others said he

had committed the murder, Eddie admitted that he had lied to the

detective earlier when protesting his innocence and now admitted

that he was involved in the murder, of Jason Sweeney (N.T. 12/16/04,

60). Judge Hughes found as a matter of fact that when Detective

Reinhold returned to the interview room after learning from Justina

Morley that Eddie had committed the murder and told Eddie that

others had implicated him in the murder, Detective Reinhold ~knew

a response would be elicited" (N.T. 12/20/04, 102). The question

is whether Miranda warnings should have preceded Detective

Reinhold’s recitation of the incriminating facts. Judge Hughes

determined that suppression was inappropriate because the

inculpatory statement was "completely voluntary" (N.T. 12/20/04,

103). However, case law demonstrates that voluntariness is the

wrong question when dealing with a statement taken in the absence

of Miranda warnings.

14

The United States Supreme Court in Missouri v. Seibert, 542

U.S. 600 (2004) (plurality)2, held that the failure to give Miranda

warnings prior to custodial questioning generally requires

suppression of any resulting confession. In Seibert a custodial

defendant was initially questioned by a police officer in the

absence of Miranda warnings. After receiving an inculpatory

response the police officer gave the defendant Miranda warnings.

In striking down the question-first, Miranda-second interrogation,

the Supreme Court found significant that the second questioning

took place at the same location with the same officer soon after

the first questioning and covered the same subject matter.

The judge in her ~1925 opinion did not discuss Seibert, though

it was discussed at the time of the motion to suppress (N.T.

12/20/04, 99-100). Instead, the judge relied exclusively upon

Commonwealth v. DeJesus, 567 Pa. 415, 787 A.2d 394 (2001). Opinion

of Hughes, J. at II. Three facts undercut reliance upon DeJesus.

First, DeJesus was decided before Seibert and, hence, could

not have been guided by its authority. Moreover, DeJesus relied~

heavily upon Oreqon v. Elstad, 470 U.S. 298 (1985), which was

distinguished by Seibert in critical ways relevant to the instant

case. For example, the second Mirandaized statement in Elstad was

2 In his concurrence, Justice Kennedy suggested that aninculpatory statement might be admissible if there had been asubstantial break between the prewarned statement and the Mirandawarned statement such that the defendant would understand that the~interrogation has taken a new turn." Id. at 622. Here there wasno break in time as the Miranda warnings occurred immediately afterthe unwarned interrogation so the instant Miranda warned statementwould be inadmissible under Justice Kennedy’s test or that of theplurality.

15

held to be admissible because, as Seibert, noted, the second

questioning took place much later in a different location. The

instant facts a more like Seibert than Elstad where, as was true in

Seibert, the second warned questioning took place in the same

location immediately after the initial unwarned questioning.

Second, the judge in her opinion relied exclusively upon trial

testimony for its record support. Opinion of Hughes, J. at I0-II.

Inexplicably, the judge never mentioned the testimony elicited at

the motion to suppress.

Third, the judge at the motion to suppress made the critical

factual determination that Detective Reinhold had intentionally

questioned Eddie Batzig without giving him Miranda warnings knowing

full wel! that an incriminating response would be evoked. Judge

Hughes found:

With respect to whether Detective Reinholdknew that telling Mr. Batzig that a witnesshad placed him at the scene of the crime andhad possibly implicated him in the crime,yeah, he’s been a detective for twenty-twoyears. He knew a response would be elicited.

N.T. 12/20/04, 101-102.

While Judge Hughes took solace in the fact that the detective

gave Eddie Batzig Miranda warnings immediately after his

questioning elicited an incriminating response (N.T. 12/20/04,

102), case law is not as forgiving where the police officer

intentionally engaged in questioning without giving the mandated

Miranda warnings. The United States Supreme Court in Seibert

specifically held that "it is likely that if the interrogators

employ the technique of withholding warnings until after

16

interrogation succeeds in eliciting a confession, the warnings will

be ineffective in preparing the suspect for successive

interrogation, close in time and similar in content." Id. at 613.

That is precisely what occurred here. The Miranda warnings came

too late to save the resulting confession. As a result, the

instant confession was obtained in violation of due process.

U.S.CONST., Amend. V, XIV.

The experienced homicide detective here went to confront Eddie

Batzig with information that established he was involved in a

murder. The detective did not preface that confrontation with the

required Miranda warnings. Judge Hughes found as a factual matter

that the detective knew that an incriminating response would likely

be forthcoming when he confronted Eddie Batzig with the information

that implicated him in the murder. The failure to provide Eddie

Batzig with the required MirandH warnings prior to this questioning

tainted his confession and requires that this Court reverse Eddie

Batzig’s convictions and remand for a new tria!.

2. EDDIE BATZIG WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT OF EQUAL

PROTECTION AND DUE PROCESS WHERE THE TRIAL COURT REFUSED TO EXCUSE

FOR CAUSE A PROSPECTIVE JUROR WITH A FIXED OPINION THAT WHOEVER

COMMITTED THIS KILLING WAS GUILTY OF FIRST DEGREE MURDER.

As a general rule all trials require the fact finder to

resolve two questions: first, what crime was committed, if any; and

second, was the defendant the one that committed the crime. Here

a prospective juror indicated that he had heard and read about the

17

instant case and candidly admitted that he had a fixed opinion

about what crime had been committed, premeditated murder, and that

it was committed by four people. However, he did not know if the

defendants on tria! had been the ones that had committed the first

degree murder. A fair trial required a juror to evaluate both

questions and this juror admitted he could only consider the

second. Defense counsel was forced to use a peremptory challenge

when the.trial court refused to excuse this juror for cause. This

error requires that this Court reverse the instant convictions and

remand for a new trial.

The United States and Pennsylvania Constitutions guarantee a

person accused of a crime the right to trial by jury. U.S~CONST.,

Amend. VI, XIV; PA.CONST., Art. I, ~§6, 9. Integral to this right

is the requirement that the jury be composed of fair and impartia!

jurors. Equal protection and due process demand no less. In order

to effectuate those constitutional rights, potential jurors with a

fixed opinion or who cannot be fair and impartia! must be excused

"for cause." The test for determining whether a prospective juror

should be disqualified is whether s/he is willing and able to

eliminate the influence of any biases or pre-conceived notions and

render a verdict solely according to the evidence. Commonwealth v.

D_y_9, 765 A.2d 1123 (Pa. Super. 2000); Commonwealth v. Koehler, 558

Pa. 334, 737 A.2d 225 (1999). Jurors should be disqualified for

cause when they do not have the ability or willingness to eliminate

the influences under which they are operating and, therefore,

cannot render a verdict according to the evidence. Commonwealth v.

18

Robinson, 581 Pa. 154, 864 A.2d 460, 489 (2004); Commonwealth v.

Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422 (1995). Where, as

here, the defense exhausts its peremptory challenges it cannot be

harmless error to overrule a valid challenge for cause, even if the

juror is actually excluded by a peremptory challenge. Commonwealth

v. InHber, 516 Pa. 2, 531 A.2d ii01 (1987); Commonwealth v. Jones,

477 Pa. 164, 383 A.2d 874 (1978); Commonwealth v. Impellizzeri, 443

Pa. Super. 296, 661 A.2d 422 (1995).

The questioning of Venireperson Stavola revealed that he had

learned of this case through the media (N.T. 2/15/05, 82). Based

upon what he had heard and read he had a fixed opinion that there

were four people involved, that they had killed the decedent and

they were guilty of premeditated first degree murder. He candidly

admitted that he had already formed an opinion that whoever

committed this crime was guilty (N.T. 2/15/05, 82-84) :

THE VENIREMAN: . . . All the news in the lastyears that it has been publicized, the way itwas described in the paper, there has been noone to actually come out and say what wasdone. It was all hearsay. It was despicable,disgusting, and kids can do it. And myopinion was that there is probably four kidsthat did it.

THE COURT: But then it sounds like you made upyour mind.

THE VENIREMAN: I haven’t heard the evidence.

THE COURT: Okay.

THE VENIREMAN: I mean, Your Honor, it is notlike watching a TV show. Everybody knows whatthe ending is going to be. This is real life.It is possible for kids to do it.

19

THE COURT: Okay. Fair enough. So, what youare saying - let me ask this question: Are yousaying that anyone who committed this crime,that anyone who would have done the acts thatthe Commonwealth seeks to prove, would beguilty?

THE VENIREMAN: Yes.

THE COURT: Have you made up your mind as towhether these particular citizens who are ontrial before you committed the crime?

THE VENIREMAN: No.

THE COURT: So you are open-minded as towhether these particular citizens committedthis crime?

THE VENIREMAN: That’s true, Your Honor.

N.T. 2/15/05, 82-84.

He told Judge Hughes and the prosecutor that he could put

aside the media coverage and focus only on the evidence introduced

at trial (N.T. 2/15/05, 84, 92, 93). However, when questioned by

defense counsel, he reiterated that before hearing any evidence he

had formed a fixed opinion as to what crimes had occurred:

MR. SCHWARTZ: When discussing your knowledgeof the incident, you mentioned that the crimeas reported was despicable and disgusting, andwe appreciate your being honest about that.You also said there are probably four kids whodid it. You just don’t know if it is thesefour kids; am I right?

THE VENIREMAN: I don’t know.

MR. SCHWARTZ: Okay. But, you described theincident that you heard about as - I’m usingyour words, young gir! lured a boy to an area,three other boys murdered him. That is yourunderstanding of the incident.

THE VENIREMAN: Yes.

2O

MR. SCHWARTZ: Right. And your perception ofthe incident is that - is that four peoplepremeditated a deliberate murder; am I rightabout that.

THE VENIREMAN: Yes.

THE COURT: Okay. So that regardless of whothey were, if those four people in your mindare guilty of a deliberate premeditatedmurder; would that be fair?

THE VENIREMAN: That is fair to say, yes.

MR. SCHWARTZ: All right. You just don’t knowif these are the right four guys.

THE VENIREMAN: I don’t know if they are theright four.

N.T. 2/15/05, 94-96.

Defense counse! for Nicholas Coia attempted to follow-up on

the juror’s fixed opinion that had been identified by counsel for

Eddie Batzig. However, the judge sustained the prosecutor’s

objections to his questions ("As to the individuals who are

involved in this, whoever they may be, you have formed a fixed

opinion; would that be fair to say?" ~Well, did you form an

opinion at that time [when reading in the newspapers about the

crime and watching television coverage] that those people, whoever

they were, were guilty of something?") (N.T. 2/15/05, 97, 98).

Defense counse!’s request that the prospective juror be

excused for cause was denied (N.T. 2/15/05, Ii0). While defense

counsel explained that the juror had an opinion that the act was

premeditated and deliberate (N.T. 2/15/05, 108), the trial judge

concluded that the juror’s willingness to follow the law was

sufficient (N.T. 2/15/05, 108-110). While counsel for Dominic Coia

21

peremptorily struck this juror (N.T. 2/15/05, ii0), counse! for

Eddie Batzig indicated that he would have struck this juror had not

co-counsel done so (N.T. 2/15/05, 117). Ultimately, counsel

exhausted al! his peremptory challenges (N.T. 2/22/05, 369).

While ordinarily the question of whether a juror should have

been struck for cause rests upon the sound discretion of the trial

judge, Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d ii01 (1987),

that deference is inappropriate here. Deference is appropriate

where the credibility of the juror is at issue and a determination

of whether that juror could be impartial requires an assessment

from the juror’s answers and demeanor. Commonwealth v. Robinson,

581 Pa. 154, 864 A.2d 460~. 489 (2004); Commonwealth v.

Impellizzeri, 443 Pa. Super. 296, 661 A.2d 422 (1995); Commonwealth

v. Johnson, 299 Pa. Super. 172, 445 A.2d 509 (1982). Here,

however, the prospective juror did not make any ambiguous answers

that would require an assessment of the "entire voir dire

transcript." Commonwealth v. Impellizzeri, supra at 427. Rather,

this prospective juror was consistent and clear: while he would

keep an open mind and follow the law, his declaration that four

people committed this crime and were guilty of first degree murder

was consistently and unshakenly expressed. In fact, defense

counsel’s attempt to give Venireperson Stavola a chance to disavow

his unambiguous, fixed opinion that he thought the four people who

committed this crime were guilty of premeditated murder was

thwarted by the prosecutor’s objections, sustained by the trial

judge (N.T. 2/15/05, 97-98). It is clear that the appropriateness

22

of a challenge for cause cannot be ignored simply because the

prospective juror asserted that s/he would follow the law and be

fair. Commonwealth v. Johnson, 299 Pa. Super. 172, 445 A.2d 509

(1982).

The trial judge erred by refusing to strike for cause a juror

that consistently expressed his fixed opinion that four people

committed the instant crime and that those four were gui’ity of

premeditated first degree murder. That this potential juror

explained that he would keep an open mind and listen to the

evidence did not call into question his belief that, before hearing

any evidence, the culprits involved were guilty of first degree

murder. That he was willing to determine if the defendants on

trial were the correct four culprits was not sufficient. He should

have been stricken for cause and the refusal of the trialjudge to

do so requires that this Court reverse Eddie Batzig’s convictions

and remand for a new trial.

3. THE INTRODUCTION IN A JOINT TRIAL OF THE INCRIMINATORY

STATEMENTS OF A NON-TESTIFYING CO-DEFENDANT DENIED EDDIE BATZIG HIS

CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM.

Eddie Batzig’s pretrial motion to sever his case from that of

his co-defendants was denied. At their joint trial the prosecutor

introduced into evidence the incriminatory statement of Dominic

Coia. His statement had been redacted so that he implicated

himself in the murder as well as "the other person." However, this

redaction still incriminated Eddie Batzig and, as Dominic Coia did

23

not testify, he was unable to cross-examine his accuser. For this

reason, the admission of this statement violated Eddie Batzig’s

right of confrontation. This Court should reverse his convictions

and remand for a new trial.

Detective Carl Watkins testified that he took a statement from

Dominic Coia (N.T. 3/7/05, 183, 188). The detective read that

statement to the jury; in it Dominic Coia admitted that he hit

Jason Sweeney with a brick and ~a person" hit him with a hatchet

(N.T. 3/7/05, 202). Dominic Coia’s statement continued:

Me and the other person continued hittingSweeney until he was on the ground. I washitting - hitting him with a brick and theother person was hitting him with the hatchet.Sweeney w~s trying to get up and run, andanother person hit Sweeney in the head with abolder (sic). There was blood pouring out ofSweeney at this time.

Then it was me and another person on him untilSweeney died. I was hitting Sweeney with ahammer now, and the other person was hittinghim with a hatchet. We just kept hitting andhitting him.

N.T. 3/7/05, 202-203.

Defense counsel had objected on Bruton grounds to Eddie Batzig

being tried with the Coia brothers and filed a written motion to

that effect (N.T. 4/23/04, 8-10; Opinion of Hughes, J. at 6-7).

The motions judge denied his severance motion (N.T. 4/23/04, 42;

6/25/04, 6; Opinion of Hughes, J. at 7). Because of the severance

issue, proposed redactions of Dominic Coia’s and Eddie Batzig’s

statements were given by the prosecutor to the motions judge who

ruled on them (N.T. 4/23/04 7-8; 2/25/05, 253-258).

24

The United States Supreme Court in Bruton v. United States,

391 U.So 123 (1968), analyzed the constitutiona! right of

confrontation implicated here. There the defendant and co-

defendant were tried together and the co-defendant’s statement was

admitted as evidence against the co-defendant. Though the tria!

court instructed the jury that the statement could only be

considered against the co-defendant3, the United States Supreme

Court found that where the ~powerfully incriminating extrajudicial

statements of a co-defendant" were presented to the jury:

the risk that the jury will not, or cannot,follow instructions is so great, and theconsequences of failure so vital to thedefendant, that the practical and humanlimitations of the jury system cannot beignored.

Id. at 135.

The Supreme Court further refined Bruto~ in Richardson v.

Marsh, 481 U.S. 200 (1987). There a nontestifying co-defendant’s

statement was admitted at trial. The statement had been redacted

to omit not only all direct reference to the defendant, but to omit

al! reference to the defendant’s existence. The defendant’s own

testimony revealed that he was present when the circumstances

described in the co-defendant’s statement had occurred. The Court

found that because the co-defendant’s statement could not, under

the circumstances, be deemed as testimony "against" the defendant,

the defendant’s confrontation rights were not violated. While

3 Similarly, here the trial judge told the jury thatDominic Coia’s statement should only be considered against him andthat Eddie Batzig’s statement should only be considered against him(N.T. 3/4/05, 154-155; 3/7/05, 189-190).

25

recognizing the .p6tential prejudice cited in Bruton that the

admission of a co-defendant’s statement could engender for the non-

declarant defendant, and while recognizing the continuing validity

of Bruton, the Court nevertheless stated:

We hold that the Confrontation Clause is not violated bythe admission of a nontestifying co-defendant’sconfession with a proper limiting instruction when, ashere, the confession is redacted to eliminate not onlythe defendant’s name, but any reference to his or herexistence.

Id. at 211.

In Gray v. Maryland, 523 U.S. 185 (1998), a co-defendant’s

statement was redacted so that every identifying reference to the

non-declarant defendant was replaced with the word ~deleted" or

~deletion." The Court found that the statement violated the

defendant’s right to confrontation.

Pennsylvania courts have gone beyond the United States. Supreme

Court to explicitly find that the substitution of the phrase ~the

other guy" for the name of a non-declarant defendant in a co-

defendant’s statement also satisfies the requirements of Bruton.

Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131 (2001), cert.

den., 535 U.S. 955 (2002); Commonwealth v. Travers, 564 Pa. 362,

768 A.2d 845 (2001); Commonwealth v. Presbury, 445 Pa. Super. 362,

665 A.2d 825 (1995), alloc, den., 544 Pa. 627, 675 A.2d 1246

(1996) .

To justify this application of the law established by Bruton

and its progeny, Pennsylvania Courts often reference the

implication made in Grax that, in the circumstances of that case,

a redacted reference to ~other guys" was sufficient to protect

26

Gray’s rights under the Confrontation Clause. In this regard, our

Courts have generally found that the contextual implication that

may arise (from linkage by other evidence introduced at trial) when

a defendant’s name is replaced by a more neutral moniker (such as

~the other guy") does not rise to the kind of obvious inference

that is violative of a defendant’s right to confrontation. See,

e.g., Commonwealth v. Overby, 570 Pa. 328, 809 A.2d 295 (2002).

However, no Pennsylvania Court has declared that a statement

employing the term ~the other guy" automatically avoids implicating

confrontation rights. Nor could such a per se rule survive under

the present law. GraM, for example, does not simply implicate

cases wherein the statement has blanks substituted for the

defendant’s name. Rather, it implicates cases involving

statements that, despite redaction, obviouslyrefer directly to someone, often obviously thedefendant, and which involve inferences that ajury ordinarily could make immediately, evenwere the confession the very first itemintroduced at tria!.

Gra~, 523 U.S. at 196. Thus, according to Grax, to the extent that

a statement can use the term "the other guy" and still obviously

refer to a particular person, such a statement would nonetheless be

proscribed under Bruton.

Additionally, use of a nontestifying co-defendant’s hearsay

statement is violative of Crawford v. Washinqton, 541 U.S. 36

(2004). In Crawford, the recorded statement of a nontestifying

declarant was admitted against the defendant at trial. The Supreme

Court determined that there was no adequate way to test the

reliability of such a statement, save by of cross-examination, and

27

that admission of the statement violated the defendant’s rights

under the Confrontation Clause. Crawford can not be avoided by the

admission of the co-defendant’s statement in the instant case,

where the unavoidable result of such admission was to condemn the

defendant without recourse to test the veracity of the condemner.

Had Dominic Coia testified at trial, Eddie Batzig would have

had the opportunity for cross-examination. Because of their joint

tria!, Eddie Batzig was deprived of his right of confrontation.

U.S.CONST., Amend. VI, XIV. This Court should reverse his

convictions and remand for a new trial.

4. WHERE NEITHER EDDIE BATZIG NOR HIS CO-DEFENDANTS WERE ELIGIBLE

TO BE SENTENCED TO DEATH IT WAS ERROR FOR HIS GUILT TO BE

DETERMINED BY A DEATH QUALIFIED JURY AND TO EXCLUDE FROM SERVICE

JURORS QUALIFIED TO SIT IN A NON-CAPITAL ~Y TRIAL.

The Commonwealth determined that it was inappropriate to seek

the death penalty against Edward Batzig and Nicholas Coia.

However, a death qualified jury was selected as they were seeking

the death penalty against Dominic Coia. On March i, 2005, the day

after the first witness had testified at their joint trial, the

United States Supreme Court held in Roper v. Simmons, 543 U.S. 551

(2005), that it was unconstitutional to sentence a juvenile to

death. Counsel for all three juveniles moved for a mistrial

because it was improper to have a death qualified jury where none

of them could be sentenced to death. Even though a death sentence

was not an option and numerous jurors qualified to sit in a non-

28

capital case had been excluded from this jury, the trial judge

denied the mistrial motion. As it was improper to death qualify a

jury for a non-capital case, this Court should reverse Eddie

Batzig’s convictions and should remand for a new jury trial.

The Commonwealth decided to not seek the death penalty against

Eddie Batzig and Nicholas Coia (N.T. 2/15/05, 8-9; Opinion of

Hughes, J. at 5, 14-15). However, because the Commonwealth sought

the death penalty against their co-defendant, Dominic Coia,

seventeen at the time of the crime, a capital jury was selected in

their joint trial (N.T. 2/15/05, 8-9; Opinion of Hughes, J. at 5)4

In the process of selecting that capital jury, numerous jurors who

would have been eligible to sit on a non-capital jury were excused

because of their views on the death penalty. On February 15, 2005,

ten potential jurors out of a panel of 60 were excused because of

their views on the death penalty (N.T. 2/15/05, 49-50, 65-67;

2/16/05, 147-148). The following day two more from that initial

panel were also excused because of their views on the death penalty

(N.T. 2/16/05, 61, 113). In the next panel seventeen out of 60

were excused (N.T. 2/17/05, 61, 98-99). In the third panel,

eighteen out of 60 were initially excused because of their views on

the death penalty, with several more excused during questioning

(N.T. 2/18/05, 23; 2/19/07, 73, 112, 345, 375). In the final

pane!, sixteen out of 60 were excused (N.T. 2/23/05, 37). Hence,

The United States Supreme Court in Buchanan v. Kentucky,483 U.S. 401 (1987) held that it was permissible in a joint trialto death qualify the defendant’s jury where only a co-defendantcould receive the death penalty.

29

approximately 63 out of 240 (26%) citizens were excused from jury

service because of their views on the death penalty.

This case demonstrates why timing is everything. The parties

opened to the death qualified jury on February 28, 2005, and a

single witness testified that day (N.T. 2/28/05, 34, 92, 104, 110,

132). The very next day, on March I, 2005, the United States

Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), which,

in barring the juvenile death penalty, rendered improper the

¯ selection of a death qualified jury for Dominic Coia and his co-

defendants. On March 2, 2005, all three juveniles moved for a

mistrial. Counsel for Dominic Coia moved for a mistria! on two

grounds: first, based upon Ro__Qp_e_~, that a death qualified jury was

improper and, second, that he had opened to the death qualified

jury by conceding that his client was guilty and pleading with them

to not impose death (N.T. 3/2/05, 121). Counsel for Eddie Batzig

joined in the mistrial motion and additionally noted that the

process of death qualification eliminated from service numerous

jurors that were now e’ligible to serve (N.T. 3/2/05, 124)5. Judge

Hughes denied the mistrial motions (N.T. 3/2/05, 127).

The United States Supreme Court held in Smith v. Texas, 311

U.S. 128, 130 (1940), that "[it] is part of the established

5 Eddie Batzig was particularly prejudiced by the openingargument of counsel for Dominic Coia. Counsel for Coia concededthat his client was guilty of murder but beseeched the jury tospare his life (N.T. 2/28/05, 106, 109). This obviously weakenedthe efficacy of Eddie Batzig’s defense that Eddie Batzig was notguilty of first or second degree murder (N.T. 2/28/05, 99). Sucha prejudicial concession by co-counsel would not have occurred ina non-capital case.

3O

tradition in the use of juries as instruments of public justice

that the jury be a body truly representative of the community."

Unfortunately, to death qualify a jury leads to compromise in these

principles. A death qualified jury is not truly representative of

the community because a large segment of the population has been

excluded, here over a quarter of the citizens called for service.

In addition, a citizen’s right to sit on a jury is improperly

impaired by being excluded. See Batson v. Kentucky, 476 U.S. 79,

87-88 (1986). While these compromises are tolerated by necessity

when death qualifying a jury for a capital case by excluding

potential jurors, Illinois v. Witherspoon, 391 U.S. 510 (1968),

these compromises are not only completely unnecessary, but are

actually harmful in death qualifying a jury for a non-capital case.

Because of the necessity of death qualifying capital juries,

as a society we are forced to tolerate the commonly accepted

assumption that death qualifying juries ~in fact produces juries

somewhat .more ’conviction prone’ than ’non-death qualified’

juries." Lockhart v. McCree, 476 U.S. 162, 173 (1986); Buchanan v.

Kentucky, 483 U.S. 402, 414, n. 16 (1987). As a legal matter the

exclusion of this segment of the population from service in a

capital case is accepted as they cannot follow the judge’s

instructions regarding death as a viable penalty~. However, the

~ While the Supreme Court in Lockhart v. McCree, 476 U.S.162, 173-177 (1986), and Buchanan v. Kentucky, 483 U.S. 402, 415-416 (1987), suggest that the fair cross-section requirement is notviolated by the dismissal of Witherspoon-excludables, that must beunderstood within the context of jury section in a capital casewhere the exclusion has a legitimate purpose, unlike the instant

(continued...)

31

jurors excluded here on Witherspoon grounds would have been able to

follow the judge’s instructions in a non-capital case such as this.

The Pennsylvania Constitution guarantees that a defendant may

not be convicted "unless by the judgment of his peers." PA.CONST.,

Sec. i, ~9v. While both the Pennsylvania and United States

Constitutions (U.S.CONST., Amend. VIe, XIV) mandate that a jury be

impartial, the United States Constitution has no parallel to the

additional ~peer" requirement mandated by the Pennsylvania

Constitution. While the Pennsylvania Supreme Court in Commonwealth

v. Kratsas, 564 Pa. 36, 764 A.2d 20, 27 n.5 (2001) (citation

omitted) asserted that Article i, ~9 "has been construed as the

functional equivalent of the due process provision in the United

6(...continued)case. McCree and Buchanan cannot, therefore, be read as rejectingthe instant cross-section argument.

v Article I, Section 9 of the Pennsylvania Constitutionreads: "In al! criminal prosecutions the accused hath a right to beheard by himself and his counsel, to demand the nature and cause ofthe accusation against him, to be confronted with the witnessesagainst him, to have compulsory process for obtaining witnesses inhis favor, and, in prosecutions by indictment or information, aspeedy public trial by an impartial jury of the vicinage; he cannotbe compelled to give evidence against himself, nor can he bedeprived of his life, liberty or property, unless by the judgmentof his peers or the law of the land."

The 6th Amendment to the United States Constitution reads:"In all crimina! prosecutions, the accused shall enjoy the right toa speedy and public trial, by an impartial jury of the State anddistrict wherein~ the crime shall have been committed; whichdistrict shal! have been previously ascertained by law, and to beinformed of the nature and cause of the accusation; to beconfronted with the witnesses against him; to have compulsoryprocess for obtaining witnesses in his favor, and to have theAssistance of Counsel for his defense." The 14th Amendment providesthat: "[N]or shall any State deprive any person of life, liberty,or property, without due process of law."

32

States Constitution," the Pennsylvania Supreme Court did not

consider specifically the ~judgment of his peers" portion of

Article i, ~9 in making that assertion, thereby limiting its

applicability to the instant facts. Moreover, unlike in Kratsas,

here there is a plain reason to interpret the Pennsylvania

Constitution broader than the federal Constitution. The federal

Constitution only protects the impartiality of the jury while the

Pennsylvania Constitution protects not only the impart’iality of the

jury but also mandates the inclusion of a defendant’s peers in that

jury, thereby placing a different and additional emphasis when

dealing with the exclusion of particular jurors.

There is not much case law dealing with the consequences of

improperly death qualifying a jury. In Reed v. Florida, 496 So. 2d

213 (Ct. of Appeals, Florida, 1986) the Court reversed the

conviction and remanded for a new tria! where the jury was

improperly death qualified. The Court found significant the fact

that in death qualifying the jury, a number of what would have been

qualified jurors were excused from service.

The proposition that a jury should not be death qualified in

a non-capita! case finds analogous support in Pennsylvania law. In

Commonwealth v. Buck, 551 Pa. 184, 709 A.2d 892 (1998), the

Pennsylvania Supreme Court held that it was improper for a

prosecutor to designate a case as capital (with, of course, the

obvious consequence that a jury would be death qualified) where

there is no evidence to support any aggravating factor. The

Supreme Court empowered the judiciary to overrule the prosecutor’s

33

designation of a case as capital in such a situation. As a

consequence of Roper, the instant case was no longer capital just

as the absence of evidentiary support of aggravating factors would

make non-capital what had been designated as a capital case.

The jury that decided Edward Batzig’s guilt was death

qualified because of the presence of Dominic coia as a co-

defendant. However, after Roper v. Simmons, the instant case was.

non-capital for all defendants. As a result, jurors were excluded

for no legally acceptable reason. This created a jury that did not

reflect a fair cross-section of the community, improperly deprived

citizens of jury service and created a more conviction prone jury.

U.SoCONST., Amend. VI, XIV; PA.CONST. Art. i, §9. This Court

should reverse Edward Batzig’s convictions and should remand for a

new trial.

5. IT WAS ERROR TO PRECLUDE A DEFENSE EXPERT FROM TESTIFYING THAT,

BASED UPON HER INTERVIEWS OF EDDIE BATZIG, IT WAS HER OPINION THAT

BECAUSE OF HIS VOLUNTARY INTOXICATION OR DRUGGED CONDITION HE WAS

GUILTY, AT MOST, OF THIRD DEGREE MURDER.

Voluntary intoxication or a drugged condition can be

introduced to establish that the crime committed was not an

intentional killing but was a lesser degree of murder. Here, a

defense expert interviewed Eddie Batzig on two occasions. He

admitted to her that at the time of the homicide he was under the

influence of drugs and alcohol. As a result the expert witness

opined that he was incapable to forming the specific intent to

34

kill. While Eddie Batzig had a federal constitutional right to

present this defense, the trial judge precluded it because of her

erroneous belief that there must be evidence in the record to

establish the voluntary use of drugs or alcohol. As this ruling

was legally incorrect and deprived Eddie Batzig of his right to

present a defense, this Court should reverse his convictions and

should remand for a new tria!. U.S. CONST., Amend. V, VI, XIV.

"[A] showing of voluntary intoxication can negate the intent

necessary for a conviction of first-degree murder and reduce the

crime of murder from first to third degree." Commonwealth v.

Fletcher, 580 Pa. 403, 419, 861 A.2d 898, 907 (2004). ~[E]vidence

of [voluntary] intoxication or [voluntary] drugged condit~±on of the

defendant may be offered by the defendant whenever it is relevant

to reduce murder from a higher degree to a lower degree of murder."

18 Pa.C.S.A. § 308. Of course, Eddie Batzig’s right to present a

defense by negating the intent element of the crime for which he

was charged is constitutionally protected. Chambers v.

Mississippi, 410 U.S. 284 (1973); U.S.CONST., Amend. V, VI, XIV.

Here, Eddie Batzig had precisely such evidence to present. He

had an expert witness, Dr. Antoinette Kavanaugh. She had

interviewed him on severa! occasions prior to trial, had been told

by him that he was using drugs and alcohol prior to the crime

involved, and based upon this she had formed the expert opinion

that he was unable to form the specific intent to kill~. In fact,

~ See Report of Dr. Antoinette Kavanaugh, Court’s Exhibit2B (N.T. 3/7/05, 18).

35

defense counsel opened to the jury with this as a defense (N.T.

2/2s/05, 101-102).However, Judge Hughes barred Dr. Kavanaugh from testifying.

The basis for her ruling was simple and erroneous. Judge Hughes

posited that Dr. Kavanaugh’s opinion that Eddie Batzig was under

the influence of drugs and alcohol at the time of the crime was

based upon what he had personally told her (N.T. 3/7/05, i0). As

.there was no trial evidence to support voluntary intoxication or

voluntary drugged condition, Dr. Kavanaugh was not permitted to

testify unless Eddie Batzig testified and presented such testimony

(N.T. 3/7/05, Ii; Opinion of Hughes, J. at 18).

It was the defense position, rejected by the tria! judge, that

Dr. Kavanaugh could testify as an expert ~based entirely on what

our client, Eddie Batzig, said to her regarding this incident"

(N.T. 3/7/05, 5). See also 3/8/05, 146. The defense was correct.

Their expert should have been permitted to testify whether or not

the basis for her opinion was admissible as evidence or even

introduced at trial. Pa.R.E. 703.

The Pennsylvania Supreme Court in Commonwealth v. Basemore,

560 Pa. 258, 744 A.2d 717 (2000) dealt with precisely the same

error as that committed by the trial court here. In Basemore, the

PCRA judge, as did the judge here, concluded that the defense

expert’s testimony would have been inadmissible because, in part,

~their diagnoses were based upon information gathered solely from

Basemore and his family." Id. at 291. However, it is not

necessary that the expert’s opinion rest upon evidence introduced

36

at tria!. What the defendant told the expert can serve as the

basis for that expert’s opinion even when there is no trial

evidence to support the nontestifying defendant’s statements to the

expert. See also Commonwealth v. Miller, 897 A.2d 1281, 1286 (Pa.

Super., 2006) (expert was permitted to testify as to what the

defendant told him in support of an intoxication/drugged condition

defense).

It is a defense to an intentiona! killing that the defendant

was under the influence of drugs or alcohol to such a degree that

the defendant was unable to form the specific intent to kill. In

such a situation the jury could find the defendant guilty of a

lesser grade of murder. Here, the trial judge unconstitutionally

barred the testimony of a defense expert because there was no

evidence introduced at trial in support of what Eddie Batzig had

told her: that he was under the influence of drugs and alcohol.

The defense expert was not permitted to testify that it was her

expert opinion that because of this drug/alcohol use, Eddie Batzig

was unable to form the specific intent to kil!. This Court should

reverse his convictions and remand for a new trial where the

defense expert will be permitted to testify.

6. THE TRIAL COURT ERRED BY ADMITTING GRUESOME PHOTOGRAPHS OF THE

VICTIM’S MANGLED BODY WHERE THE PHOTOGRAPHS’ INFLAMMATORY NATURE

OUTWEIGHED THEIR PROBATIVE VALUE.

Under Pennsylvania law, a two part test determines the

admissibility of photographs. A judge must first determine if the

37

photographs are inflammatory. If inflammatory they can only be

admitted if their probative value outweighs their inflammatory

impact. Here, the inflammatory nature of the photographs

outweighed the probative value. The introduction of these

photographs denied Eddie Batzig his right to due process and a fair

jury trial under Pennsylvania and federal law. This Court should

reverse his convictions and should remand for a new tria!.

At issue here are photographs taken of the beaten victim.

Photographs of a decedent are not per se inadmissible. Well

established law determines their admissibility:

[A] court must determine whether thephotograph is inflammatory. If not, it may beadmitted if it has relevance and can assistthe jury’s understanding of the facts. If thephotograph is inflammatory, the trial courtmust decide whether or not the photographs areof such essential evidentiary value that theirneed clearly outweighs the likelihood ofinflaming the minds and passions of thejurors. If an inflammatory photograph ismerely cumulative of other evidence, it willnot be deemed admissible.

Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 216 (1997)

(citing Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1373-

74 (1991)). See also Commonwealth v. Robinson, 581 Pa. 154, 864

A.2d 460, 501-502 (2004).

Here, Judge Hughes correctly recognized that a two part test

determined the admissibility of the photographs (N.T. 2/14/05, 55).

There was also a video taken of the body. Because the video was

duplicative of the photographs, Judge Hughes ruled that the

prosecutor could show the jury either the photographs or the video,

but not both (N. T. 2/28/05, 156; 3/1/05, 68). The attorneys for

38

all three defendants argued for the exclusion of the photographs

(N.T. 2/14/05, 37, 55-64; 2/25/05, 151-154; 195-200). Judge Hughes

examined the photographs involved and determined which could be

used by the prosecutor (N.T. 3/1/05, 68, 3/2/05 ~A", 15-16).

Reversing her pre-trial ruling, Judge Hughes permitted the

photographs to be shown to the jury (N.T. 3/3/05, 267) as well as

the video of the decedent’s body (N.T. 3/4/05, 46-54).

The admission of the gruesome photographs, especially when

coupled with the videotape of the body, violated not only Judge

Hughes own pre-trial ruling that the prosecutor could use only one

method of showing the body to the jury, it violated Eddie Batzig’s

federa! and state right to a due process and a fair jury tria!.

U.S.CONSTo, Amend. VI, XIV; Kuntzelman v. Black, 774 F.2d 291, 292

(8th Cir. 1985) (per curiam) 1°; PA.CONST., Art. i, §9. Over

objection, visual images of the victim’s body were repeatedly

presented to the jury-not only with the bloody crime scene

photographs and crime scene video, but also with the autopsy

photographs (N.T. 3/7/05, 76, 107-121, 136-137).

Judge Hughes explains in her written opinion that, while there

was a ~potential prejudicia! effect [that] the photos may have had

upon the jury," the probative value of the visual depictions ~to

i0 Kuntzelman found that the introduction in a state trialviolated the defendant’s constitutional rights to due process anda fair trial, citing Manninq-El v. Wyrick, 738 F.2d 321, 323 (8thCir.), cert. denied, 469 U.S. 919 (1984) : "that the asserted errorwas so conspicuously prejudicial or of such magnitude that itfatally infected the trial and deprived him of fundamentalfairness." See alsq Spears v. Mullin, 343 F.3d 1215 (I0th Cir.2003) .

39

demonstrate that the appellant possessed the specific intent to

kill" outweighed that prejudice. Opinion of Hughes, J. at 14.

Judge Hughes correctly noted that the jury was instructed that the

crime scene pictures, the crime scene video and the autopsy picture

were admitted to show the nature of the wounds and the conditions

on the scene and that the jury was admonished to not let the

depictions stir up their emotions (N.T. 3/9/05, 91-92); however,

that admonishment was ineffective given the strong visceral

revulsion attendant to anyone viewing the visual images.

There was certainly some probative value to the visual

depictions introduced by the prosecutor. That fact cannot overcome

that the plainly inflammatory nature of the depictions overwhelmed

that probative value. As a result of the introduction of these

images, Eddie Batzig was deprived of his right to due process and

a fair trial. U.S.CONST., Amend. VI, XIV; PA.CONST., Art. I, ~9.

7. THE PROSECUTOR IN CLOSING TO THE JURY UNFAIRLY VOUCHED FOR THE

CREDIBILITY OF THE" COMMONWEALTH’S EYEWITNESS, ATTACKED DEFENSE

COUNSEL AND IMPROPERLY EXPRESSED HIS OWN PERSONAL OPINION.

There are significant limitations as to what the prosecutor

may argue in closing to a jury.

express his/her personal opinion.

the credibility of witnesses.

The prosecutor is not allowed to

The prosecutor may not vouch for

The prosecutor may not attack

defense counsel. Here the prosecutor violated these rules. This

Court should reverse Eddie Batzig’s convictions and should remand

for a new trial.

4O

The reasons for limits on prosecutorial argument are clear:

"[L]imitations are needed to check the possibility that jurors will

give undue weight to the arguments of the prosecutor."

Commonwealth v. Cherry, 474 Pa. 295, 303, 378 A.2d 800, 804 (1977).

Cherry quoted the Commentary to Section 5.8, ABA Project on

Standards for Criminal Justice:

Prosecutorial conduct in argument is a matterof special concern because of the possibilitythat the jury will give special weight to theprosecutor’s arguments, not only because ofthe prestige associated with his office, butalso because of the fact-finding facilitiespresumably available to him.

Id. at 303.

"It is settled that it is improper for a prosecutor to express

a personal belief as to the credibility of the defendant or other

witnesses." Commonwealth v. Chmiel, 585 Pa. 547, 620, 889 A.2d

501, 544 (2005), cert. denied, 127 S.Ct. I01 (2006). See also

Commonwealth v. Koehle~, 558 Pa. 334, 363, 737 A.2d 225, 240

(1999).

It is well-settled that the prosecutor has aspecial obligation to avoid "impropersuggestions, insinuations, and, especially,assertions of persona! knowledge "Berger v. United States, 295 U.S. 78, 88, 55S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Suchconduct is prohibited because "impropersuggestions, insinuations, and, especially,assertions of personal knowledge are apt tocarry much weight against the accused whenthey should properly carry none." Id.(Emphasis added).

Commonwealth v. Reed, 300 Pa. Super. 224, 230, 446 A.2d 311, 314(1982) .

41

An examination of the prosecutor’s closing argument here

demonstrates the clear violation of these limitations. The

prosecutor repeatedly emphasized that he did not want to make a

plea deal with Justina Morley but had to do so in order.to present

to the jury the full picture of what happened. There was no

evidence at trial as to the motives of the prosecutor for making a

deal with Justina Morley. By explaining ~why" he made such a deal

and tying it in with ~presenting a full picture," the prosecutor

was not only improperly testifying and presenting the jury

information from outside the record, but improperly vouching for

the witness’ credibility. Why else would he make a deal for this

testimony if he~’did not personally believe it to be truthful?

Consider the prosecutor’s repeated comments:

Can you imagine if I didn’t, you know, brokera deal with the devil, Justina Morley? Canyou imagine if I didn’t have an eyewitnesswhat they [defense counse!] would have donewith these cell phone records? . . . Can youimagine if I didn’t have an eyewitness?

N.T. 3/8/05, 236-237. See also 3/8/05, 238, 239.

We had to. I’m not proud. But I make noapologies. I have been doing this for 20years. We left no stone unturned to bring youan eyewitness .... Can you imagine, we inan effort to provide you with the details, wehad to broker a deal.

N.T. 3/8/05, 239.

We had to broker a deal with someone. Becausewithout that, you wouldn’t have had aneyewitness. You wouldn’t have known whathappened to Jason on that date in question.We had to do that.

42

We - we wanted to leave no stone un~urned inpresenting the full picture to you all as towhat happened.

N.T. 3/8/05, 241.

You think I didn’t know who I was sittingacross the table with when I brokered a deal?Do you think I didn’t know what I was getting.I saw the photos; of course I did.

N.T. 3/8/05, 247; see also N.T. 3/8/05, 246.

We had to do this. We had to broker a deal.I had to engage in this unholy alliance withthe devil.

Everything I do, if you are not happy with thedeal that we brokered - I brokered, Ibrokered, you send a letter to Lynn Abraham,you say: You know, listen, Mr. Conroy, he’s anice enough guy, but you know what, he reallyshouldn’t be making tough decisions. Senda letter to her, and she’ll consider it. Shemight even call you.

Point the finger at me. Don’t deny thesepeople justice. I did that because I know thearguments that are going to be made in thecourtroom. I brokered that deal. I’m not - Iwill not in any way apologize for it.

N.T. 3/8/05, 248-249.

Ladies and Gentlemen, I know what I had to doto present this case to you. I get one shot.I get paid, as I told you, to make the toughdecisions. I knew what decision had to bemade in th~s case, to present you all of theunadulterated brutality of this case. I hadto bring to you an eyewitness to prove mycase.

And Ladies and Gentlemen, I’ll tell you rightnow, the tough decision isn’t brokering a dealwith Justina Morley, because I know that hadto be done. Counsel wants to know what istough, it is sitting down and explaining thatto the Sweeney Family that Jude Conroy: Listenwe have to do this. That is the tough job.Telling them what based on my professionalopinion, we have to do to present the full

43

facts to the jury. The one chance we get topresent the full facts, this is what has gotto be done.

N.T. 3/8/05, 250-251.

Can you imagine if I didn’t bring aneyewitness in here what would have happened?

N.T. 3/8/05, 258.

In addition, as if these comments were not sufficiently

prejudicial, the prosecutor also improperly denigrated defense

counse!, their motives and speculated as to their arguments. See

N.T. 3/8/05, 237-238, 249.

Defense counsel objected to this series of improper

prosecutorial arguments (N.T. 3/8/05, 294-298). In overruling his

objections and denying a curative instruction, Judge Hughes stated

that, [The prosecutor] didn’t testify. He stated facts to the

jury. He did broker this deal. It was his deal to broker or not

broker, and he did" _(N.T. 3/8/05, 298). The problem, however, with

the tria! judge’s analysis is that the prosecutor’s motives for

brokering the deal should not have been before the jury. In

presenting his personal motives the prosecutor plainly (and

improperly) vouched for the credibility of the eyewitness he

presented. In her written opinion, the trial judge evidences the

same error. While Judge Hughes correctly notes that the prosecutor

cannot "assert his personal opinions" (Opinion of Hughes, J. at

19), she fails to understand that by saying ~I had to make a deal

with the eyewitness so that the jury could know what actually

happened," the prosecutor repeatedly vouched for the truthfulness

44

of that witness’ testimony. It is that vouching for the

truthfulness of a witness that was improper.

The trial prosecutor placed his own personal motives in making

a deal with the alleged eyewitness, Justina Morley, before the

jury. The prosecutor vouched for her credibility by repeatedly

telling the jury that he needed to make a deal with her so that the

jury could know what actually happened, could know ~the facts."

Theprosecutor also attacked and denigrated defense counsel. These

arguments were improper, denied Eddie Batzig his right to a fair

tria!, U.S.CONST., Amend. VI, XIV, and require that this Court

reverse his convictions and remand for a new trial.

8. A SENTENCE OF LIFE WITHOUT PAROLE WHEN IMPOSED UPON A SIXTEEN

YEAR OLD CHILD IS UNCONSTITUTIONAL UNDER BOTH THE PENNSYLVANIA AND

UNITED STATES CONSTITUTIONS.

Eddie Batzig was sixteen years old at the time of the crime

for which he was found guilty of first degree murder. The judge

imposed a sentence of life imprisonment without the possibility of

parole, as required by 18 Pa.C.S.A. §1102. That he was a juvenile

at the time of the crime was irrelevant. As the imposition of a

life sentence without parole for a juvenile is unconstitutional

under both the United States and Pennsylvania Constitutions, this

Court should vacate the instant life sentence. The Pennsylvania

and United States Constitutions will be considered separately.

45

i. A Sentence Of Life Without Parole For a Sixteen YearOld Child Violates The Eighth Amendment To The UnitedStates Constitution As It Constitutes "Cruel And Unusua!Punishment."

The United States Constitution bars "cruel and unusual

punishment." U.S.CONST., Amend. VIII. This provision is

applicable to the states through the due process clause.

U.S.CONST., Amend. XIV. A sentence of life imprisonment without

the possibility of parole (~LWOP") for a sixteen year old child is

crue! and unusual. The recent United States Supreme Court decision

in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L.Ed.2d 1

(2005), provides the appropriate analysis.

In Roper the United States Supreme Court held that it violated

the constitution to impose a death sentence for a juvenile. The

Supreme Court determined that the "evolving standards of decency

that mark the progress of a maturing society" demonstrate that it

was disproportionate to execute a defendant for a murder committed

while s/he was under the age of eighteenI~. Id. at 561 (quoting

Trop v. Dulles, 356 U.S. 86, I00-i01 (1958) (plurality opinion).

It was unconstitutional to impose a death sentence because minors

cannot be deemed among the most culpable or beyond rehabilitation.

The Court relied on recent medical, scientific, and psychological

studies emphasizing the difference in brain development between

youths and adults, which show a decreased culpability and an

~ The defendant in Commonwealth v. Wilson, 911 A.2d 942(Pa. Super. 2006), had contended that ~ proved that a juvenilecould not form the requisite mens rea for murder, an allegation notinvolved in the instant case. Wilson did not deal with aconstitutionality of the LWOP sentence itself, the issue presentedhere.

46

increased likelihood of rehabilitation for minors. Id. at 569-71.

The same is true for LWOP sentences for children below age 18; such

a sentence is excessively retributive in light of minors’

diminished culpability for their crimes, and which by its very

design denies any possibility of rehabilitation.

In reaching its holding the Ro_9_op_9~ Court explained that it had

to examine state law and practice to see if there is a nationa!

consensus against the death penalty for minors, as well as apply

its own independent judgment, Id. at 564, which it did by examining

scientif±c, medical, and psychological studies of minors; the

purposes of punishment, international law, and the law and practice

of other nations12.

A. State law and practice show a consensusagainst LWOP sentences for juveniles.

In Roper the Supreme Court examined state law and practice and

determined that 30 states prohibited the death penalty for minors

and that the juvenile death penalty was imposed only infrequently

in the remaining 20 states. Id. at 563-65. The Supreme Court paid

special attention to recent laws and trends and concluded that

there was a national consensus against imposing death sentences on

minors. Id. at 565-67.

An analysis of state law reveals a national consensus against

juvenile LWOP. That is because, although 45 states allow juvenile

Although a LWOP sentence in Roper was substituted for thedeath penalty, the case should not be misconstrued as precedentsupporting LWOP for minors. The Court’s judgment affirmed theMissouri Supreme Court’s setting aside of the death penalty, and nomore. Id. at 578-79. The constitutionality or even theappropriateness of LWOP was not an issue.

47

LWOP, a majority of states (35) and the District of Columbia have

laws that limit LWOP against minors in some fashion. Three states

and the District of Columbia bar LWOP against any minor13, and two

states bar LWOP altogether14. Of the states that al!ow LWOP against

minors, 31 impose an age limit on these sentences somewhere below

18, either as a result of minimum age for transfer to adult court

or minimum age of responsibility rules (29 states)~, or an age

~3 Colorado, Kansas, Oregon, and the District of Columbia.See C.R.S.A. section 17-22.5-104 (IV) (2006); Kano Stat. Ann. ~21-4622 (2005 Supp.) ; D.C. Code. § 22-2104(a) (2005).

Alaska and New Mexico. See Alaska Stat. § 12.55.125(a),(h), & (j) (LexisNexis 2004); N.M. Stat. Ann. ~ 31-21-10 (Supp.2005).

~s States that permit LWOP against minors but mandateminimum age for transfer or criminal responsibility: Alabama (age14), Arizona (age 14)~ Arkansas (age 14), Connecticut (age 14),Georgia (age 13), Illinois (age 13), Iowa (age 14), Kentucky (age14), Louisiana (age 15), Massachusetts (age 14), Minnesota (age14), Mississippi (age 13), Missouri (age 12), Montana (age 12),Nevada (age 8), New Hampshire (age 13), New Jersey (age 14), NorthCarolina (age 13), North Dakota (age 14), Ohio (age 14), Oklahoma(age 13), South Dakota (age 10), Texas (age I0), Utah (age 14),

Vermont (age i0), Virginia (age 14), Washington (age 15), Wisconsin(age i0), Wyoming (age 13). See Ala. Code§ 12-15-34 (1994 & Supp.2005); Ariz. Rev. Stat. Ann. ~ 13-501(A) (i) (2001 & Supp. 2005) andAriz. Rev. Stat. Ann. § 13-501(B) (i) (2001 & Supp. 2005); Ark. CodeAnn. ~ 9-27-318 (2002 & Supp. 2005); Conn. Gen. Stat. Ann. ~46b-127 (West 2004 & Supp. 2005); 705 Il!. Comp. Stat. Ann.405/5-130(4) (a) (Westlaw 2006); Iowa Code Ann. ~ 232.45 (6) (a)(West 2000 & Supp. 2006); Ky. Rev. Stat. Ann. ~§ 635.020, 640.010(LexisNexis 1999 & Supp. 2005), see also Ky. Rev. Stat. Ann. ~532.025 (LexisNexis 1999 & Supp. 2005); La. Child. Code Ann. art.305 (West 2004); Mass. Gen. Laws Ann. ch. 119, ~ 72(b) (West 2003& Supp. 2005); Minn. Stat. Ann. ~ 260B.125 (2003 & Supp. 2006);Miss. Code Ann., ~ 43-21-151(a) (West 1999), and Miss. Code Ann.,§ 43-21-157(8) (West 1999 & Supp. 2005); Mo. Ann. Stat. § 211.071(West 2004 & Supp. 2006); Mont. Code Ann. § 41-5-206 (2005);Nev. Rev. Stat.Ann § 194.010; N.H. Rev. Stat. Ann. ~628:1(II)(Westlaw 2008); N.J. Stat. Ann. 2a:4A-26 (West 1987 & Supp. 2005);

N.D. Cent. Code § 12.1-04-01 (1997); Ohio Rev. Code Ann. ~2152.i0(B) (LexisNexis 2002 & Supp. 2005); Okla. Stat. Ann. Tit i0,

(continued...)

48

limit on LWOP itself (two states).16 Just 14 states~ including

Pennsylvania, allow these sentences irrespective of a child’s ageIv.

is (...continued)§ 7306-I.I(B) (West 1998 & Supp. 2006) ; S.D. Codified Laws26-11-3.1 (2004); Tex. Fam. Code Ann. ~ 54.02: subsection (a) (I) ;subsection (j) (2)and subsection (m); Tex. Penal Code ~8.07; UtahCode Ann. § 78-3a-502(3) (2002); Vt. Stat. Ann. tit. 33, § 5506(1998); Va. Code Ann. § 16.1-269.1 (2003 & Supp. 2005); Wash. Rev.Code Ann. § 13.040.030 (Westlaw 2006), Wash. Rev. Code Ann.13.040.110 (Westlaw 2006); Wis. Stat. Ann. ~ 938.18, 938.183 (West.2000 & Supp. 2005) ; Wyo. Stat. Ann. § 14-6-203(f)(3) (2005) andWyo. Stat. Ann. ~ 14-6-237 (2005).

16 California and Indiana. See Cal. Penal Code ~190.5(b)(Deering 2006) (no LWOP below age 16); Ind. Code Ann.35-50-2-3(b) (LexisNexis 2002) (no LWOP below age 16); Ind. CodeAnn. § 35-50-2-3 (LexisNexis 2002).

~7 Delaware, Florida, Hawaii, Idaho, Maine, Maryland,_Michigan, Nebraska, New York, Pennsylvania, Rhode Island, SouthCarolina, Tennessee, West Virginia. See Del. Code Ann. Tit. ii,4209 (2005); Del; Code Ann. Tit. i0, ~ i010, i011 (1999 & Supp.2004); Fla. Stat. §775.082, (2005); Fla. Stat. § 985.225 (2005);Haw. Rev. Stat.Ann. § 571-22 (LexisNexis 2005 & Supp. 2005); IdahoCode Ann. ~ 18-4004 (Michie 2004); Idaho Code Ann. §~ 20-508,20-509 (Michie 2004); Idaho Code Ann. § 20-509(3)-(4) (Michie2004); Me. Rev. Stat. Ann. Tit. 17-A, § 1251 (West Supp. 2005),State v. St. Pierre, 584 A.2d 618, 621 (Me. 1990); Me. Rev. Stat.Ann. Tit. 15, § 3101 (2003 and West Supp. 2005); Md. Code Ann.,Crim. Law ~§ 2-202, 2-203, 2-304 (Michie 2002); Md. Code Ann.,Cts. & Jud. Proc. § 3-8A-06(West 2002 & Supp. 2005); Mich. Comp.Laws Ann. ("M.C.L.A.")~ 712A.4; M.C.L.A. ~ 769.1; M.C.L.A.750.316; M.C.L.A. §791.234(6); M.C.L.A. § 791.244; Neb. Rev. Stat.~§ 43-247, 43-276; Neb. Rev. Stat. § 43-276; Neb. Rev. Stat § 28-105;Neb.Rev. Stat § 29-2522; N.Y. McKinney’s Penal Law ~ 490.25 and490.25(d); but see, N.Y. McKinney’s Pena! Law125.25(5),125.26,125.27; ~§30.00(i)-(2) ; 18 Pa.C.S.A. ~ 1102, 9711(West 1998 & Supp. 2005), 61 Pa.C.S.A. § 331.21 (West 1999 & Supp.2005); 42 Pa.C.S.A. ~ 6302 (Westlaw 2006), 6322(West 2000 & Supp.2005); R.I. Gen. Laws § 12-19.2-4 (LexisNexis 2002); R.I. Gen. Laws§ 14-1-7(2002); R.I. Gen. Laws ~ 12-19-11; R.I. Gen. Laws §11-23-2;S.C. Code Ann. § 17-25-45 (2005); S.C. Code Ann.20-7-7605(6) (Westlaw 2006), see also State v. Corey, 339 S.C. 107,529 S.E.2d 20, 23 "(S.C. 2000); Tenn. Code Ann. §§ 39-13-202, 204(2003); Tenn. Code Ann. § 37-1-134 (a) (i) (2005) ; W. Va. Code61-2-2, 62-3-15; W. Va. Code ~ 49-5-13(e) (Michie Supp. 2005); W.Va. Code § 49-5-10 (Michie Supp. 2004); W. Va. Code ~ 49-5-I0(e).

49

After Roper that legislatures have established an_DiZ age limits

on LWOP is crucial. As a matter of law there is no constitutional

distinction between a child 16 to 18 years old and those below age

16; in reversing Stanford v. Kentucky, 492 U.S. 361 (1989), which

had permitted the death penalty for juveniles age 16 and above

based on the notion that juveniles below age 16 were less culpable

for their crimes, the Roper Court held, "We conclude the same

reasoning applies to al! juvenile offenders under 18." Id. at 571.

Accordingly, states’ line-drawing to limit LWOP to children above

a certain age is, after ~, a distinction without a

constitutiona! difference. The fact that 36 states and the

District of Columbia limit LWOP against minors at all reveals a

consensus that this sentence is categorically inappropriate for all

minors below a certain age, and a consensus that some line must be

drawn. This line should be drawn at 18 according to the reasoning

of Roper. Id. at 574.

As for trends, Colorado and Montana recently imposed limits on

LWOP against minors. Colorado outlawed LWOP against minors

altogether, C.R.S.A. section 17-22.5-104 (IV) (2006). Montana

barred applying mandatory minimum sentences and limits on

eligibility for parole against anyone below 18. Mont.Code Ann.

46-18-222 (i) (Westlaw 2007). The Roper Court placed special

emphasis on such recent changes in state law. Id. at 565-67.

The pattern of actua! practice in the states even more sharply

reveals this consensus. Five states that permit LWOP against

5O

children do not have any inmates serving these sentencesIB. Indeed,

only a handfu! of states actually impose LWOP against minors with

any regularity. As of 2004, according to statistics gathered by

Human Rights Watch, well over half of the 2,225 people known to be

serving LWOP for crimes they committed as juveniles were imprisoned

in just four states:. Florida, Louisiana, Michigan, and

Pennsylvania, with Pennsylvania having the highest number in the

nation. Report, Human Rights Watch, The Rest of Their Lives: Life

Without Parole for Child Offenders in the United States, Table 5 at

35 and Appendix D: State Population Data Table (October, 2005)

(hereinafter, "HRW Report").

~.: Practice reveals a trend against applying LWOP against

children. The sentence was meted out 152 times in 1996 but just 54

times in 2003. HRW Report at 31, Figure 3. Thus, state practice

shows that LWOP against minors is rare and that there is a broad,

national consensus against imposing this sentence on children.

B. The Conclusions of Studies, Adopted by theSupreme Court in Roper, Apply Equally to theConclusion that LWOP Sentences are Cruel andUnusual Punishment And Violate Due Process forany Offender Who Committed the Charged CrimeWhen Younqer Than 18.

In Roper the Supreme Court concluded that scientific and

sociological studies demonstrated that minors possess less maturity

and less sense of responsibility than adults, and therefore it was

cruel and unusual and violative of due process to consider them as

18 Maine, New Jersey, New York, Utah, and Vermont. SeeReport, Center for Law and Global Justice, University of SanFrancisco School of Law, ~Sentencing Our Children To Die In Prison:Global Law And Practice" (2007), Appendix.

51

morally culpable as an adult would be for a similar crime. Id. at

569-71. Children under 18 have diminished culpability and should

be treated differently than adults based on "[t]hree general

differences: [a] lack of maturity and an underdeveloped sense of

responsibility juveniles are more vulnerable or susceptible

to negative influences and outside pressures, including peer

pressure the character of a juvenile is not as well formed as

that of an adult." Id. at 569-70 (citations deleted). These

studies apply equally to LWOP, which is also harsh and final. The

.R~o_~p_~ Court concluded that treating children younger than 18 the

same as adults is "misguided" because children have a greater

chance to reform, Id. at 570, and that determining whether anybody

below the age of 18 is beyond rehabilitation is practically

impossible, even for psychiatrists and psychologists. Id. at

573-74. The Court stated, "In recognition of the comparative

immaturity and irresponsibility of juveniles, almost every State

prohibits those under 18 years of age from voting, serving on

juries, or marrying without parental consent." Id. at 569.

These factual conclusions reached by the Court also vindicate

a strong current of Supreme Court precedent that distinguishes

between adults and minors. Outside the Eighth Amendment, the

Supreme Court has often ensured that governmental power would be

constrained from harming, or used to protect, minors, based on

their less-developed nature and judgment. See ~, Kaupp v.

Texas, 538 U.S. 626 (2003) (voluntariness of confession); Fare v.

Michael C., 442 U.S. 707, 725 (1979) (waiver of Miranda rights);

52

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of

consent to search). Indeed, the Supreme Court has let states use

their power of patens patriae to detain children preventively to

protect them "from the downward spiral of criminal activity. "

Schall v. Martin, 467 U.S. 253, 265-66 (1984). The Supreme Court

has regularly let states exercise power over minors that would be

unconstitutional if exercised over adults. See ~, Ashcroft v.

American Civil Liberties Union, 542 U.S. 656, 666-68 (2004)

(harmfu! images on Internet); Bd. of Educ. v. Earls, 536 U.S. 822,

838 (2002) (drug testing high school students); Hazelwood Sch.

Dist. V. Kuhlmeier, 484 U.S. 260, 273 (1988) (censoring student

publications); Ginsburg v. New York, 390 U.S. 629, 637 (1968)

(prohibiting purchase of obscene materials).

The studies relied on in Roper and other Supreme Court

precedent militates against the constitutionality of LWOP against

children.

C. International Law and the Law and Practiceof Other Nations Establish a World-WideConsensus Aqainst LWOP Sentences for Minors.

In Roper v. Simmons, 543 U.S. 551 (2005) the Supreme Court

referred to the laws of other countries and to international

authorities as instructive for its interpretation of the Eighth

Amendment’s prohibition of "cruel and unusual" punishment. Id. at

575. The Supreme Court considered the evolution of international

law and also the evolution of practice in the community of nations.

Id. at 556-77. International law and practice should be considered

to determine whether LWOP is unconstitutional.

53

International law recognizes that the special characteristics

of juveniles preclude them from being treated the same as adults in

the criminal justice system. Committee on Rights of the Child,

~General Comment No. I0: Children’s Rights in Juvenile Justice,"

paras. I0-ii UN Doc. No. CRC/C/GC/10 (April 25, 2007) (hereinafter

"Committee on Rights of the Child"). The harsh sentences dispensed

in adult courts do not take into account the lessened culpability

of juvenile offenders, their ineptness at navigating the criminal

justice system, or their unique potential for rehabilitation and

reintegration into society. Perversely, LWOP sentences penalize

juvenile offenders more than adults because juveniles, by virtue of

their young age, will likely serve ~onger than an adult given LWOP

for the same crime.

The practice of imposing LWOP sentences on juveniles was a

recent phenomenon occurring largely in the 1990s by a small

minority of countries seeking harsher sentences against juvenile

offenders~. However, international law now prohibits and indeed

global practice has eliminated LWOP sentences for juvenile

offenders: the United States stands alone among all countries of

the world in allowing this sentence2°.

de la Vega, C. and Leighton, M., ~Sentencing our Childrento Die in Prison: Global Law and Practice,"http://www.usfca.edu/law/home/CenterforLawandGlobalJustice/LWOP Final Nov 30 Web.pdf, last visited May II, 2008 at 6. Hereinafter"de la Vega and Leighton."

2o http://www.law.usfca.edu/home/CenterforLawandGlobalJustice/Juvenile%20LWOP.html (last visited May 13, 2008).

54

i. Treaties to which the UnitedStates is a Party Prohibit LWOPSentences Because of the SpecialCharacteristics of Children.

International law as expressed through international treaties

and other agreements ratified by the United States is the supreme

~law of the land" in the United States and should be applied in the

context of juvenile sentencing. The Supremacy Clause, U.$.CONST.,

Article VI, Clause 2, mandates:

This Constitution, and the Laws of the UnitedStates which shall be made in Pursuancethereof; and al! Treaties made, or which shallbe made, under the authority of the UnitedStates, shal! be the supreme Law of the land;and the Judges in every States shall be boundthereby, any Thing in the Constitution of Lawsof any State to the Contrary notwithstanding.

Hence, when a treaty and state law conflict, the treaty

controls21. The burden falls .on Pennsylvania to comply with the

United States’ international law obligations. ~One consequence of

our form of government is that sometimes States must shoulder the

primary responsibility for protecting the honor and integrity of

the Nation" [in applying an international law obligation of the

United States]. Medellin v. Texas, 552 U.S. , 128 S.Ct. 1346,

1374 (2008) (Stevens, J. concurring) (voted with majority on

application of international law obligation of the United States to

the State of Texas in reconsideration of criminal sentence).

The prohibition against applying LWOP sentences to juveniles

is recognized as an obligation of the United States under the

21 See Zscherniq v. Miller, 389 U.S. 429, 441 (1968); Clark

v. Allen, 331 U.S. 503, 508 (1947); see also, Missouri v. Holland,252 U.S. 416, 433-35 (1920).

55

International Covenant on Civil and Political Rights (~ICCPR"), to

which the United States is a party2~. The Committee on Human

Rights, the oversight authority for the treaty, determined that the

United States is not in compliance with the treaty because it

allows LWOP sentences for juveniles; it made this determination

though the United States had taken a-reservation to the treaty

allowing states to try juveniles in adult court in ~exceptional

circumstances.~" The Committee also expressed its grave concern

~that the treatment of children as adults is not applied in

exceptional circumstances.only ." Id.

The extraordinary breadth and rapid development in the United

States of sentencing child offenders to LWOP since U.S.

ratification of the ICCPR contradicts the assertion that the United

States has applied this sentence only in exceptional circumstances.

In fact, the tota! number of juveniles tried and sentenced as

~2 International Covenant on Civil and Political Rights,G.A. res. 2200A (XXI), 21 GAOR Supp. (No. 16) at 52, U.N. Doc.A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976,ratified by the United States on June 8, 1992. Seehttp://www2.ohchr.org/english/bodies/ratification/4.htm (lastvisited May ii, 2008). The Committee found the U.S. out ofcompliance with its treaty obligations, in particular Article24(i) ("every child shall have, without any discrimination,the right to such measures of protection as are required by hisstatus as a minor.") in applying juvenile LWOP sentences.Concluding Observations of the Human Rights Committee on the UnitedStates of America, 87th Sess. held on 27 July 2006,(CCCPR/C/$R.2395), at para. 34.

Human Rights Committee Concluding Observations, at para.34. In ratifying the ICCPR the United States declared, "The UnitedStates reserves the right, in exceptional circumstances, to treatjuveniles as adults, notwithstanding paragraphs 2 (b) and 3 ofarticle I0 and paragraph 4 of article 14." Seehttp://www2.ohchr.org/english/bodies/ratification/docs/DeclarationsReservationsICCPR.pdf (last visited May II, 2008).

56

adults to LWOP now exceeds 2,381, many of whom were first-time

offenders: in Pennsylvania over I00 juveniles have bien sentenced

to LWOP since 2005. de la Vega and Leighton, supra, at ii, fn. 19.

The Committee Against Torture, the official oversight

authority for the Convention Against Torture, Cruel, Inhuman or

Degrading Treatment or Punishment, to which the United States is

also a party, evaluated United States compliance in 2006 and

similarly found that the life imprisonment of children "could

constitute crue!, inhuman or degrading treatment or punishment,"24

in violation of the treaty.

Moreover, minority juveniles in-the United States are subject

to discrimination in the application of the LWOP sentence. The

rate of African American youth compared to white youth per i00,000

youths incarcerated in adult prisons is 26 to 2 and youth of color

in some jurisdictions receive more than 90% of the LWOP sentences

given, de la Vega and Leighton, supra, at 15. For this reason,

the Committee on the Elimination of Racial Discrimination, the

official oversight authority for the Convention on the Elimination

of Racial Discrimination, to which the United States is a party,

International Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment (G.A. res. 39/46, 39U.N. GAOR Supp. (No. 51) at 197, U.N.Doc A/39/51(1984), enteredinto force June 26, 1987, ratified by the U.S. Oct. 21, 1994,http://www2.ohchr.org/english/bodies/ratification/9.htm (lastvisited May ii, 2008); see Committee Against Torture, 36th Session,"Conclusions and Recommendations of the Committee Against Torture:United States of America," at para. 35, UN Doc. NO. CAT/USA/CO/2,25(July 2006).

57

determined that juvenile LWOP sentences are incompatible with the

United States’s treaty obligations2S.

2. The Prohibition of Juvenile LWOPis Customary International Law and AJus Cogens Norm

The prohibition against sentencing child offenders to LWOP is

part of customary international law and the virtually universal

condemnation of this practice can now be said to elevate the

prohibition to the level of a jus cogens norm26. Once a rule of

customary international law is established, that rule generally

applies to all nations, including those that have not formally

ratified it themselves~7. When customary law becomes a jus cogens

norm, no objection by a country will suffice to prevent the norm’s

~s International Convention on Elimination of RacialDiscrimination, GoA. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No.14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered intoforce Jan. 4, 1969, ratified by the United States 21 October 1994,http ://www2. ohchr, org/english/bodies/ratification/2, htm ( lastvisited May Ii, 2008) ; see Committee on Elimination of RacialDiscrimination, para 21, page 6, Concluding Observations of theUnited States, CERD/C/USA/CO/6 March 6, 2008.

Article 53, Vienna Convention on the Law of Treaties 1155U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980; de laVega, C. and Brown, J., ~Can a United States Treaty ReservationProvide a Sanctuary for the Juvenile Death Penalty?" 32 USF.LoRev.735, 759-762 (1998).

27 A norm is customary international law if it is supportedby widespread, constant, and uniform practice compelled by legalobligation, notwithstanding that there may be a few uncertaintiesor contradictions in practice during this time. See, .e.________________g_~., 2Restatement (Third) of Foreign Relations Law of the United States~n102 (1986) (Comment a) ; U.K.v. Norway, 1951 I.C.J. 116, 138-39;Nicaragua v. U.S., 1986 I.C.J. 14, 98, para. 186; FRG v. Denmark:FRG v. Netherlands, 1969 I.C.J. 3, paragraphs, 73-74.

58

applicability to all nations28. United States law recognizes that

customary international law is part of our domestic law and binds

our government. The Paquete Habana, 175 UoS. 677, 699-700 (1900).

The prohibition of juvenile LWOP sentences fulfills these

requisites for three reasons. First, there is widespread and

consistent practice by countries to not impose a sentence of LWOP

for juvenile offenders as a measure that is fundamental to the

basic human value of protecting the life of a child, de la Vega

and Leighton, supra, at 17. Second, the imposition of such

sentences is relatively new and now practiced by only one nation,

the United States--all other countries which had taken up the

practice have joined the global community in abolishing the

sentence. Third, there is near universal acceptance (but for the

United States) that the norm is legally binding on all countries29.

In addition to the legal prohibition recognized in the context

of treaty law, countries have reinforced this obligation in a

myriad of international resolutions and declarations over the past

See, e._~______________g~., 2 Restatement (Third) of Foreign Relations Lawof the United States ~n102 (1986).

~9 The prohibition is codified in the Convention on theRights of the Child (CRC) article 37, which prohibits juvenileLWOP. The CRC treaty has been ratified by every country in theworld except the United States and Somalia. Art. 37, Convention onthe Rights of the Child, U.N.G.A. res. 44/25, annex, 44 U.N. GAORSupp. (No. 49) at 167 Convention, U.N. Doc. A/44/49 (1989), enteredinto force Sept. 2, 1990. In early 2007, the Committee on theRights of the Child, the oversight authority for the CRC, clarifiedin a General Comment, ~The death penalty and a life sentencewithout the possibility of parole are explicitly prohibited inarticle 37(a) CRC [of the treaty]." Committee on Rights of theChild, Committee on Rights of the Child, General Comment No. i0,Children’s Rights in Juvenile Justice, at para. 4(c), No.CRC/C/GC/10 (25 April 2007).

59

two decades3°. A universal consensus has coalesced and even

accelerated in the last several years, as evidenced by United

Nations General Assembly resolutions, the determination of treaty

bodies evaluating United States practice and the General Comment on

Juvenile Justice of the Committee of the Rights of the Child.

Indeed, because only the United States applies this sentence, the

prohibition against the sentence is a jus cogens norm, a practice

no longer tolerated by the international community of nations as a

legal penalty for juveniles.

2. A Sentence Of Life Without Parole For a Sixteen YearOld Child Violates Article I, Section 13 Of ThePennsylvania Constitution Which Prohibits CruelPunishment.

Even if the federal constitution were not violated by

sentencing a minor to LWOP, the Pennsylvania Constitution certainly

is. Pennsylvania leads the nation in the number of~inmates serving

LWOP for crimes committed as minors, a distinction that recently

caused the New York Times to label Pennsylvania "the worst

offender" in an editoria! about LWOP sentences against minors. See

"A Shameful Record," New York Times, February 6, 2008.

Pennsylvania’s children are not the worst children in the United

30 United Nations General Assembly by a vote of 183 to one(United States the only country voting against ) , passed aresolution urging countries to abolish the death penalty and LWOPfor those under 18 years. G.A. Resolution on Rights of the Child,adopted 18 December 2007, G.A. Res. 62/141, para 36 (a), U.N. Doc.,62st Session (Dec. 18, 2007) , available athttp : //daccessdds. un. org/doc/UNDOC/GEN/NO 7/472/23/PDF/N0747223. pdf?OpenElement. See also, U.N. General Assembly Resolution 61/146,"Rights of the Child," para. 31(a), UN Doc. No. A/Res/61/146o (Dec.1 9 , 2 0 0 6 ) , a v a i 1 a b 1 e a thttp ://daccessdds. un. org/doc/UNDOC/GEN/NO6/503/19/PDF/N0650319, pdf ?OpenElement o

6O

States, or, indeed, in all the world (given that Pennsylvania has

sentenced more minors to LWOP than any other state and the United

States has sentenced more minors to LWOP than any other country).

.In considering whether a protection under the Pennsylvania

Constitution is greater than under the United States Constitution,

this Court may consider: the text of the Pennsylvania Constitution;

the provision’s history, including case law; related case law from

other states; and policy considerations unique to Pennsylvania.

Commonwealth vo Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).

Applying the method set out in Edmunds shows that the text of

Article I, Section 13 of the Pennsylvania Constitution differs from

the Eighth Amendment. It reads: "Excessive bail shal! not be

required, nor excessive fines imposed, nor cruel punishments

inflicted." Comparing the text of the Pennsylvania Constitution to

the United States Constitution should lead one to conclude the

Pennsylvania Constitution is broader. It bars "cruel punishments"

while the United States Constitution bars punishments that are both

"cruel" and "unusual." Hence, the United States Constitution would

permit a "cruel" punishment that is common (i.e., not unusual).

The provision’s history shows that although Pennsylvania

courts have held that Pennsylvania’s ban on cruel or unusual

punishments is coextensive with the Eighth Amendment, those cases

did not involve minors receiving long, harsh sentences, nor did

they arise after ~ where it was established that there is a

constitutional difference between defendants below age 18 and above

age 18 regarding to punishment. See Commonwealth v. Zettlemoyer,

61

500 Pa. 16, 72-74, 454 A.2d 937, 967 (1982), cert. denied, 461 U.S.

970 (1983) (holding that Pennsylvania’s constitutional ban on

excessive punishment was co-extensive with United States

constitutional ban where adult argued that death penalty violated

Pennsylvania constitution); Commonwealth v. Carter, 855 A.2d 885,

892 (Pa. Super. 2004), appeal denied, 581 Pa. 670, 863 A.2d 1142

(2004) (not considering Pennsylvania Constitution in deciding,

pre-Ro_9~p_~_~, whether Eighth Amendment bars LWOP against 16 year old);

Commonwealth v. Lucas, 424 Pa. Super. 173, 177, 622 A.2d 325,~ 327

(1993) (housing minor in adult prison instead of juvenile facility

to serve sentence of two to four years did not violate United

States or Pennsylvania constitutional prohibitions against

excessive punishment; court relied on Zettlemoyer given that the

minor "has not made an effort" to argue how Pennsylvania’s

constitution provided greater protection than federal

constitution); Commonwealth v. Strunk, 400 Pa. Super. 25, 582 A.2d

1326 (1990) (90-day driver’s license suspension for a minor’s

possession and consumption of alcoholic beverages does not violate

federal or Pennsylvania constitutional ban on excessive

punishment). In particular, Zettlemoyer, was decided before

Edmunds which established the method to determine whether the

Pennsylvania Constitution is broader than the federal Constitution.

Pennsylvania history reveals longstanding special protections

for minors against the full weight of crimina! punishment. In

Commonwealth v. Kocher, 529 Pa. 303, 602 A.2d 1308 (1992) the

Pennsylvania Supreme Court referred to the common law presumption

62

that children under the age of 14 are incapable of forming the

requisite criminal intent to commit a crime, citing Commonwealth v.

Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978) (en banc),

overruled by Commonwealth v. G.T., 409 Pa. Super. 15, 597 A.2d 638

(1991) (en banc). While this common law presumption was replaced

by the Juvenile Act, its existence for decades demonstrates that

Pennsylvania’s common law was especially protective of minors. In

addition, even though all minors’ murder cases start in adult

court, a child can petition to send the murder case to juvenile

court. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d i01 (1975).

Special rules govern the admissibility of a child’s confession.

Commonwealth v. Williams, 504 Pa~511, 475 A.2d 1283 (1984). While

there is no constitutional guarantee of s~ecial treatment for

minors, Commonwealth v. Williams, 514 Pa. 62, 71, 522 A.2d 1058,

1063 (1987), the special rules for children demonstrate that this

Court may conclude that what would be permissible as an adult

punishment may be cruel (and unconstitutional) for a minor.

There is a final case relevant to the assessment of whether

the Pennsylvania Constitution’s prohibition against "crue!

punishment" provides greater protection for juveniles. The Supreme

Court in Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980),

upheld the constitutionality of life imprisonment for first degree

murder. Although the defendant was fourteen years old, the Court

never discussed the significance of this fact but addressed the

sentence only generally. Id. at 33-34. The Court established the

test for determining whether a statutory punishment can be a

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"cruel" punishment: whether it is an excessive and unnecessary

punishment disproportionate to the crime that shocks the moral

conscience of the community. The excessive and disproportionate

nature of life imprisonment for children has been discussed above.

Moreover, given the special concern for minors under Pennsylvania

case law, Pennsylvania statutes and Pennsylvania-common law, it

would indeed shock the moral conscience of the community to punish

children exactly the same way as one would punish an adult. Also

Sourbeer predates Edmunds, which further diminishes its relevance.

At least two other states have interpreted their constitutions

as barring LWOP against children in particular cases. Workman v.

Commonwealth, 429 S.W.2d .374, 377 (Ky. 1968) (holding that LWOP

against children for rape violates United States and Kentucky

constitutions, stating: "It seems inconsistent that one be denied

the fruits of the tree of law, yet subjected to all its thorns.");

Naovarath v. State, 105 Nev. 525, 527, 779 P.2d 944, 946 (Nev.

1989) (holding that LWOP against 13-year old violated Nevada and

United States Constitutions, and noting that the sentence announced

that the boy must be "permanently unregenerate and an unreclaimable

danger to society who must be caged until he dies").

Last, a policy consideration unique to Pennsylvania is that

many if not most Pennsylvanians likely would be surprised to see

that their venerable Constitution has somehow permitted

Pennsylvania to become the world’s leading jailer of children, a

jailer that throws away the key, forever, denying even a chance at

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redemption. Pennsylvanians, and Pennsylvania’s children, deserve

.better.

A juvenile LWOP sentence violates the Pennsylvania

Constitution. It denies the child’s age and immaturity, as well as

any possibility that the minor might rehabilitate over the course

of his remaining youth and adult life. Such a sentence is

inconsistent with Pennsylvania common law and case law which is

more protective of minors and recognizes the inherent weakness,

vulnerability and suggestibility of children.

3. Even if LWOP Sentences Were Not Unconstitutional forJuveniles, a Mandatory LWOP Sentence for JuvenilesViolates Both the U.S. and Pennsylvania Constitutions.

Alternatively, a statute such as the one in this case, 18 Pa.

C.S.A. § 1102, prescribing a mandatory life sentence without the

possibility of parole for both first and second murder degree,

violates the U.S. and Pennsylvania Constitutions when applied to a

person below age 18 because the statute renders courts impotent to

give a more just sentence by precluding courts from considering a

child’s age, immaturity, reduced mental capacity, reduced role in

the offense, or any other factors related to his young age -- the

precise characteristics that the United States Supreme Court in

Roper concluded categorically "appl[y] to all juvenile offenders

under 18," Id. at 571, and which the Roper Court found conclusive

in abolishing the death penalty against minors. Id. at 574. The

Pennsylvania statute admits no distinction whatsoever between

adults and children. Laws that automatically.transfer a minor to

adult court when charged with certain crimes, and that mechanically

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prohibit any consideration of a child’s age when sentencing,

especially to the harsh penalty of LWOP, are undoubtedly cruel.

This lack of protection for children is also unusual: Pennsylvania

falls within the minority of five states that bar courts from

making any distinction between children and adults in imposing a

LWOP sentence31. ~

The highest court in Illinois concluded that mandatory LWOP

against a child convicted of multiple murders violated Illinois’

constitution. Three converging statutes--mandatory transfer to

adult court; a prohibition of consideration of degree of

participation where more than one actor committed the crime; and

the mandatory sentence--prevented the court from considering the

minor’s age. People v. Miller, 202 Ill.2d 328, 340-41 (2002).

Montana recently banned applying mandatory minimum sentences or

restricting parole eligibility when the defendant is below 18.

Mont. Code Ann. § 46-18-222 (I) (Westlaw 2007). This Court should

also hold that the mandatory nature of Pennsylvania’s LWOP when

applied against children violates the United States and

Pennsylvania Constitutions.

31 These five states are: Florida, Nebraska, New York,Pennsylvania, and South Carolina.

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VII. CONCLUSION

This Court should reverse the decision of the suppression

court be!ow and should remand for a new trial. Alternatively, this

Court should reverse the severance decision of the court below and

should remand for a new .trial where Eddie Batzig not be tried with

Dominic Coia. Alternatively, because of other trial errors, this

Court should remand for a new trial. Alternatively, this Court

should remand for a new sentencing hearing where the imposition of

a LWOP sentence is barred.

Res. .~tfully submitted,

BRADLEY S. BRIDGE,Assistant Defender

OWEN W. LARRABEE,Assistant Defender

Deputy Chief, Appeals DivisionKARL BAKER, Assistant DefenderChief, Appeals DivisionELLEN T. GREENLEE, DefenderDefender Associationof Philadelphia1441 Sansom StreetPhiladelphia, Pennsylvania 19102Identification No. 00001(215) 568-3190

CONSTANCE DE LA VEGAFrank C. Newman InternationalHuman Rights ClinicUniversity of San Francisco

School of Law

BRIAN J. FOLEY, VisitingAssociate Professor of LawDrexe! University Earle MackSchool of LawPhiladelphia, PA

MICHELLE LEIGHTONDirector Human Rights ProgramsCenter for Law & G!obalJusticeUniversity of San FranciscoSchool of LawPhiladelphia, PA

MARSHA LEVICKLega! DirectorLAVAL S. MILLER-WILSONSenior AttorneyMIA V. CARPINIELLOStaff AttorneyJuvenile Law CenterThe Philadelphia Building1315.Walnut Street, 4th F!oorPhiladelphia, PA 19107

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IN THE SUPERIOR COURT OF PENNSYLVANIA … THE SUPERIOR COURT OF PENNSYLVANIA SITTING AT PHILADELPHIA...

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