42 Pa.C.S. § 9711(d)(6). On December 23, 1998, this Court held in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 662 (1998) (plurality opinion), that the Section 9711(d)(6) aggravating circumstance "may not be applied to an accomplice who does not `commit' the killing in the sense of bringing it to completion or finishing it." Thus, at the sentencing phase of a first-degree murder trial, the Commonwealth has failed to prove this aggravator unless and until it has established beyond a reasonable doubt that the defendant himself was the killer.
We will not address the same claim, cloaked in a different theory of relief, in the collateral setting. Appellant contends Commonwealth v. Lassiter, 722 A.2d 657 (Pa. 1998) (plurality), mandates reversal of his death sentence. Lassiter held "[§] 9711(d)(6) may not be applied to an accomplice who does not `commit' the killing in the sense of bringing it to completion or finishing it."
Commonwealth v. O'Donnell, 559 Pa. 320, 337, 740 A.2d 198, 207-08 (1999). ¶ 14 Our Supreme Court addressed an analogous claim of ineffective assistance of counsel in the context of a waiver of the right to trial by jury in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998). In Lassiter, the appellant argued trial counsel had provided ineffective assistance because counsel failed to advise her that the Commonwealth's promise not to pursue the death penalty if the appellant agreed to a bench trial constituted illusory consideration; the death penalty would not have applied had the matter gone before a jury.
Appellant's Brief, 93-94. In support of this claim Appellant cites to our decision in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998), a plurality decision, which held that the aggravator set forth at 42 Pa.C.S. § 9711(d)(6) did not, by virtue of its wording, apply to accomplices of persons who killed someone in the course of committing a felony. The Lassiter Court explained that this aggravator did not apply to an accomplice for the following reasons:
Following hearings at which appellants and their former counsel testified, the PCRA court held that appellants had proven their claims of ineffective assistance of counsel and granted each appellant a new trial. On the Commonwealth's appeal, the Superior Court reversed, holding that appellants had failed to establish prejudice. Specifically, the Superior Court, citing the lead opinion in Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998) (Opinion Announcing Judgment of the Court, or "OAJC"), found that they had failed to show that the outcome of their joint trial would have been more favorable if it had been conducted before a jury. For the following reasons, we vacate the order of the Superior Court and remand this matter to the PCRA court for proceedings consistent with this Opinion.
The court granted an evidentiary hearing on seven claims and granted the Commonwealth's Motion to Dismiss the remaining claims. The seven issues to be considered at the evidentiary hearing were: (1) trial counsel ineffectiveness for failing to object to the trial court's instruction on accomplice liability, (2) trial counsel ineffectiveness for failing to adequately investigate and present evidence on the cause of death, (3) a jury selection challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), (4) trial counsel ineffectiveness for failing to present mitigation evidence, (5) allegations related to appellate counsels' performance, (6) a general request regarding the application of relaxed waiver, and (7) Daniels's challenge to the propriety of the Section 9711(d)(6) (perpetration of a felony) aggravating circumstance under Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998) (plurality decision). See N.T., 2/2/2000, at 80–89.
In this regard, Appellant analogizes the torture aggravator to the aggravating circumstance of killing in the perpetration of a felony, seeid. § 9711(d)(6), which this Court has found only applies if the defendant served as an actual instrumentality of the victim's death. SeeCommonwealth v. Lassiter , 554 Pa. 586, 595, 722 A.2d 657, 662 (1998) (plurality). Appellant emphasizes that the Lassiter lead opinion focused on the word "committed"—which appears in both the in-perpetration-of-a-felony and torture aggravators—and explained that the term requires the defendant to have perpetrated the murder "in the sense of bringing it to completion or finishing it."
Appellant argues the Commonwealth proceeded on a theory of accomplice liability and the trial evidence "left open the real possibility that [a]ppellant was at most an accomplice rather than the actual killer, and consequently, that the (d)(6) aggravating circumstance was invalid." Appellant cites Commonwealth v. Lassiter , 554 Pa. 586, 722 A.2d 657, 662 (1998) (Opinion Announcing Judgment of Court (OAJC), for the proposition that, " Section 9711(d)(6) may not be applied to an accomplice." Appellant's Brief at 63.
In substance, the Superior Court's approach embodies the now-defunct common-law principle that each accomplice bears equal criminal responsibility for all acts of his associates or confederates committed in furtherance of a common design. See Commonwealth v. Lassiter, 554 Pa. 586, 595 n. 4, 722 A.2d 657, 661–62 n. 4 (1998) (alluding to this common-law, common-design principle in a context in which it was not controlling and, thus, with no assessment of its continuing longevity).Per the express terms of the Crimes Code, however, accomplice liability has been made offense-specific.
Appellant candidly recognizes this, see Brief for Appellant at 40 (describing the limitation on the guilty-but-mentally-ill verdict as having become “enshrined in Pennsylvania decisional law”), but argues that counsel's stewardship was nonetheless deficient because counsel failed to argue for a change in the law based on Section 314(a)'s plain language. In this latter regard, Appellant references Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998), a case in which this Court determined that defense counsel was at fault because he failed to inform the defendant that the Commonwealth's only alleged aggravating circumstance—that the crime was committed in the perpetration of a felony, see42 Pa.C.S. 9711(d)(6)—could not be found for accomplices such as herself. This failure on counsel's part led Ms. Lassiter to plead guilty to second-degree murder to avoid the death penalty, when she was ineligible for the death penalty in the first instance.