[J-69-2015] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

MELVIN KNIGHT,

Appellant

:

:

:

:

:

:

:

:

:

:

:

No. 702 CAP

Appeal from the Judgment of Sentence 

entered on August 31, 2014 in the Court 

of Common Pleas, Westmoreland 

County, Criminal Division at No. CP-65-

CR-0000851-2010. Post Sentence 

Motions Denied July 16, 2014.

SUBMITTED: October 7, 2015

DISSENTING OPINION

JUSTICE MUNDY DECIDED: November 22, 2016

I respectfully dissent from the majority’s holding vacating Appellant’s judgment of 

sentence and awarding a new penalty hearing. I disagree that Commonwealth v. 

Rizzuto, 777 A.2d 1069 (Pa. 2001) applies under the circumstances of this case. 

Rizzuto held “where a mitigating circumstance is presented to the jury by stipulation, the 

jury is required by law to find that mitigating factor.” Id. at 1089. I agree that if the 

parties stipulate to a mitigating factor the jury must find that factor as a matter of law. 

However, I cannot agree that a jury is required to find a factor which has been 

presented for the jury’s determination absent a stipulation.

I agree with Justice Baer’s statement in his concurring opinion that, based on 

Detective Vernail’s testimony alone, he is “unconvinced that the jury was required as a 

matter of law to find the Section 9711(e)(1) mitigating circumstance because the jury 

was free to disbelieve the testimony presented, as a fact-finder has exclusive authority 

to make credibility determinations.” Concurring Op. at 2, citing Commonwealth v. 
[J-69-2015] [MO: Dougherty, J.] - 2

Diamond, 83 A.3d 119, 134 (Pa. 2013), cert. denied, Diamond v. Pennsylvania, 135 S. 

Ct. 145 (2014).

However, I write separately to distance myself from his conclusion the jury was 

required to find the Section 9711(e)(1) mitigating circumstance based on “the 

prosecutor’s explicit concession that Detective Vernail’s review of Appellant’s criminal 

history was correct[.]” Id. A prosecutor’s closing statement is pure argument, not 

evidence. See Commonwealth v. Johnson, 668 A.2d 97, 107 (Pa. 1995), cert. denied, 

Johnson v. Pennsylvania, 519 U.S. 827 (1996). Thus, any perceived “concession” 

contained in a closing argument is not evidence the jury is bound to consider.

Appellant claims that the jury’s failure to find the Section 9711(e)(1) mitigator was 

“arbitrary and capricious.” Appellant’s Brief at 37-39. I agree with the trial court and the 

Commonwealth that the jury was solely responsible for determining if a mitigating factor 

existed. At sentencing, the Commonwealth explicitly refused to stipulate to the 

existence of the mitigator at issue. Therefore, it was incumbent upon Appellant to prove 

the mitigator by a preponderance of the evidence. See 42 Pa.C.S. § 9711(c)(1)(iii). It 

was then the exclusive role of the jury to determine whether the mitigator existed and, if 

so, whether it outweighed any proven aggravating circumstances.

As this Court stated in Commonwealth v. Reyes, 963 A.2d 436 (Pa. 2009), cert. 

denied, Reyes v. Pennsylvania, 558 U.S. 850 (2009), our authority to vacate a death 

sentence is governed by statute.

There is no legal mechanism by which a sentence of death 

may be overturned by this Court on the basis of an improper 

weighing of aggravating circumstances and mitigating 

circumstances because our authority to vacate a death 

sentence is circumscribed by the death penalty statute, 

specifically 42 Pa.C.S. [§] 9711(h)(3), which provides:

(h) REVIEW OF DEATH SENTENCE.—

...
[J-69-2015] [MO: Dougherty, J.] - 3

(3) The Supreme Court shall affirm the sentence of 

death unless it determines that:

(i) the sentence of death was the product of 

passion, prejudice or any other arbitrary factor; 

or

(ii) the evidence fails to support the finding of at 

least one aggravating circumstance specified 

in subsection (d).

This restriction on our authority has caused this Court to 

reiterate many times that it is exclusively the function of the 

jury in the first instance to decide whether aggravating and 

mitigating circumstances exist and then whether the 

aggravating circumstances outweigh any mitigating 

circumstances.

Id. at 441.

Moreover, in Commonwealth v. Walter, 966 A.2d 560 (Pa. 2009), cert. denied, 

Walter v. Pennsylvania, 558 U.S. 1052 (2009) this Court held:

[t]he law is clear that the task of determining the existence of 

mitigating factors is for the jury alone. A capital jury is not 

required to find a mitigating factor presented by a defendant, 

even if the Commonwealth fails to present evidence 

rebutting the existence of that factor. As in [Commonwealth 

v.] Treiber, [874 A.2d 26 (Pa. 2005), cert. denied, 547 U.S. 

1076 (2006)] the jury here was presented with evidence and 

chose, in its discretion, to reject it. Appellant points to no 

error that occurred at the penalty hearing. 

Id. at 568 (quotation marks and some citations omitted). In Walter, this Court concluded 

that the appellant pointed to no error at the penalty hearing, but rather asked us “to 

substitute our own judgment for that of the jury, a charge we are without authority to 

undertake.” Id.

In Commonwealth v. Ballard, 80 A.3d 380 (Pa. 2013), cert. denied, Ballard v. 

Pennsylvania, 134 S. Ct. 2842 (2014), the appellant asked this Court to review the 

jury’s failure to find the catchall mitigator despite presenting what he deemed to be 

“unrebutted” evidence of 15 reasons why it should be found. Noting that the catchall 

mitigator is subjective, this Court found that the appellant failed to set forth a legal 
[J-69-2015] [MO: Dougherty, J.] - 4

argument, noting that “[i]rrespective of why the jury determined not to find this particular 

mitigating circumstance, the point remains that the determination was reposed with the 

fact finder. See Reyes. We cannot set it aside, based upon speculation that the jury 

did not do its duty.” Id. at 411. 

Instantly, the jury was charged with the specific task of determining whether or 

not Appellant had a “significant history of prior criminal convictions.” Id. § 9711(e)(1). 

The only evidence adduced was the testimony of one witness, which the jury was free 

to consider and reject. See Walter, 966 A.2d at 568. However, under the majority’s 

view, the Commonwealth’s closing argument regarding the weight the jury should give 

to Appellant’s prior criminal history provides the linchpin to require the jury to find that 

mitigator, as a matter of law, in favor of Appellant.

The following is an excerpt of the specific argument made by the Commonwealth 

to the jury in its closing.

Lastly, I expect the defendant will argue, rightfully so, that he 

has no significant history of criminal convictions. And that is 

true. You remember that he asked - - the defendant’s lawyer 

asked Detective Vernail yesterday whether he had obtained 

a criminal history of the defendant and Detective Vernail did 

and it did not show any convictions. So, certainly this is a 

mitigating circumstance that is permitted to be offered in a 

death penalty trial. And, again, you must consider that. But 

I ask you to balance that against the horrific events of this 

particular crime. It wasn’t simply a killing. It was a murder 

that was committed during the course of a felony, during the 

course of kidnapping, aggravated assault, a rape. And it 

was worsened by the fact that it wasn’t done by the 

defendant himself, that he joined with other people to keep 

her, Jennifer away from her family, from anybody who would 

help her, to kidnap her in effect. He had no prior convictions, 

but in this particular case he pled guilty to first degree, 

second degree, two conspiracy charges and kidnapping. 

Five separate felonies.

N.T., 8/30/12, at 1768-1769.

The defense then argued that Appellant’s prior criminal history should mitigate 

his sentence.
[J-69-2015] [MO: Dougherty, J.] - 5

Now, we know that he spent time in jail. You’ve heard about 

that. These are for traffic - - not traffic citations, but a citation 

more or less equivalent to a traffic offense or thereabouts. 

Why is he in jail? He’s in jail because he doesn’t get the 

citation, he doesn’t show up for court. It’s not because 

someone threw him in jail for being guilty. He doesn’t show 

up for the hearing. That’s why he got put in jail and that’s 

how he came to be acquainted with Ricky Smyrnes. These 

citations, disorderly conduct or harassment, certainly you 

wouldn’t want your kids involved in it, you wouldn’t want your 

kids to bring home a citation, but you know these are the 

sorts of things that happen. The point is, he didn’t have a 

significant prior history. No history of misdemeanors or 

felonies at the time of this offense despite all that you’ve 

heard.

Id. at 1776-77.

In line with our previous cases, the trial court instructed the jury, that if any 

member of the jury finds that the defense proved a mitigating factor they are to consider 

it and list it on the verdict sheet. In explaining the jury’s role in determining mitigating 

factors the trial court instructed as follows.

The following mitigating circumstances are submitted to the 

jury and must be proved by the defendant by a 

preponderance of the evidence. And, again, preponderance 

is not the same as beyond a reasonable doubt. It makes it 

more likely than not. Think of a scale, and if it tips a little bit 

more one way, that’s the preponderance of the evidence. 

And there are four that are listed for you. And the same as 

the aggravators, you might decide one of these, you might 

decide all of them, you might decide none of them.

N.T., 8/30/12, at 1845 (emphasis added).

Further, the trial court correctly instructed the jury that they were the sole fact 

finders in this matter. Importantly, the trial court’s charge to the jury specifically 

instructed that the prosecutor’s closing statement is argument, not evidence.

Members of the jury, now that all of the evidence has been 

presented and the attorneys for both sides have made their 

closing arguments, it becomes my duty to instruct you in the 

law which you will apply to the facts as you find them in 

reaching your verdict.

...
[J-69-2015] [MO: Dougherty, J.] - 6

As I mentioned to you at the outset, it is my responsibility to 

decide all questions of law, and you must accept and follow 

my rulings and instructions on matters of law. I am not, 

however the judge of the facts. It is not for me to decide 

what facts are true facts in this matter. You, the jury are the 

sole and only judge of the facts. It is your responsibility to 

weigh the evidence, and based on that evidence and the 

logical inferences which flow from that evidence, to find the 

facts, to apply the rules of law which I give you, to the facts 

as you find them, and then decide whether the defendant 

should be sentenced to death or life imprisonment.

...

Ladies and gentlemen, you have now heard evidence and

arguments of counsel. Once again, I will reiterate to you that 

the arguments of counsel are not evidence.

N.T., 8/30/12, at 1813-16. This statement reaffirms that counsels’ statements are not 

evidence or binding, but merely persuasive argument in favor of their respective 

positions. See Johnson, 668 A.2d at 107.

Because there was no stipulation regarding Appellant’s prior criminal history, the 

jury was free to weigh Detective Vernail’s testimony and consider the arguments of 

counsel. The Commonwealth did not argue that the jury must find Appellant had no 

prior significant criminal history, only that they must consider Detective Vernail’s 

testimony regarding it. Defense counsel did not argue Appellant’s prior criminal history 

was uncontradicted, only that Appellant “didn’t have a significant prior criminal history.” 

The defense undoubtedly makes an argument that this was met by a preponderance of 

the evidence, but nevertheless, this is clearly a question for the jury, and the jury after 

consideration, did not find it. Therefore, I would decline to substitute the judgment of 

this Court for that of the jury. See Walter, 966 A.2d at 568. I am cognizant of the facts 

of this case and that as objective reviewers it is possible to disagree with the jury’s 

failure to find the mitigating factor based on the evidence presented. However, the 

potential negative consequences that could arise from extending our current 

jurisprudence which states a mitigating factor that is presented by stipulation must be 
[J-69-2015] [MO: Dougherty, J.] - 7

found by the jury, to directing a jury to find a factor based on what we deem 

uncontradicted evidence, usurps the jury’s very specific role in our bifurcated capital 

case law. 

A stipulation, as in Rizzuto, is a different circumstance, one the trial court in this 

instance recognized, and specifically described in its instruction to the jury.

Earlier in my preliminary instructions I told you that 

statements made by counsel are not evidence and are not 

binding on you. There are exceptions to this. The 

stipulation that was read to you earlier in the trial regarding 

the toxicology report ... is one of those exceptions. ... When 

the District Attorney and counsel for the defendant stipulate, 

that is when they agree that a certain fact is true, their 

stipulation is evidence of fact. You should regard the 

stipulated or agreed fact as proven.

Id. at 1822. In the absence of a stipulation the jury cannot be faulted for failing to find a 

mitigator in favor of the defendant, when it was explicitly within its discretion to reject the 

evidence presented.

Of equal importance, I also write to note that the jury’s failure to find the Section 

9711(e)(1) factor does not lead to an arbitrary and capricious result. The jury in this 

case unanimously found two aggravating factors beyond a reasonable doubt; that the 

killing was committed during the commission of a felony, and that the killing was 

committed by a means of torture. The jury heard about the extensive abuse and torture 

the victim incurred prior to her murder at the hands of Appellant and his co-defendant. 

The jury also found the catchall mitigating factor and weighed this against the two 

aggravating factors. See Reyes, 963 A.2d at 441. Ultimately, the jury concluded the 

aggravating factors outweighed the mitigating factor and unanimously returned a verdict 

of death. N.T., 8/30/12, at 1865.

Accordingly, I dissent from the majority’s conclusion that Appellant is entitled to a 

new penalty hearing and I would affirm Appellant’s judgment of sentence.