Commonwealth v. Drummond, G., Aplt. ( 2022 )

[J-17-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 28 EAP 2021
:
Appellee : Appeal from the Judgment of
: Superior Court entered on
: 2/16/2021 at No. 2187 EDA 2018
v. : affirming the Order entered on
: 7/16/2018 in the Court of Common
: Pleas, Criminal Division,
GERALD DRUMMOND, : Philadelphia County at No. CP-51-
: CR-0015491-2008.
Appellant :
SUBMITTED: January 27, 2022
OPINION
JUSTICE WECHT DECIDED: November 23, 2022
In this PCRA1 appeal, we consider a matter of first impression. We inquire whether
trial counsel was ineffective for failing to object to a jury instruction in which the judge
analogized jurors’ application of the “proof beyond a reasonable doubt” standard to jurors’
hypothetical decision-making regarding surgery involving a “precious one.”2 We conclude
that instructions of this nature are reasonably likely to cause a jury to apply a diminished
standard of proof in criminal cases, thus posing significant risks to a defendant’s due
process rights. Accordingly, we find arguable merit to Gerald Drummond’s ineffective
assistance of counsel claim. However, because counsel cannot be deemed ineffective
for failing to anticipate a change in the law, we affirm the Superior Court’s order affirming
the denial of Drummond’s PCRA petition. .
1 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
2 Notes of Testimony (“N.T.”), 12/17/2010, at 18-22.
* * * *
Shortly after 2:00 a.m. on July 13, 2007, the Philadelphia Police Department was
notified of a shooting on Longshore Avenue. Officer Christopher Rommel reported to the
location and found fifteen-year-old Timothy Clark and twenty-seven-year-old Damien
Holloway lying on nearby Vandike Street. Clark had a large gunshot wound to the back
of his head and was already dead by the time that Officer Rommel arrived. The bullet
that killed Clark had traveled at a downward angle, and his hands were stippled.3 The
size of the bullet hole, the angle of the shot, and the presence of stippling all suggested
to the police that Clark was killed execution-style by an assailant standing behind him
while Clark knelt with his hands interlocked behind his head.
Holloway was shot in the cheek, but was still alive. He was taken to a local
hospital. His face displayed significant stippling, indicating that he was shot from no
further than three feet away. When the bullet entered his jaw, the bullet broke into
numerous shards, one of which Holloway inhaled into his lung, where it became lodged.
The gunshot wound caused significant bleeding at the base of Holloway’s brain, causing
brain damage. Holloway died two days later.
The investigation into the murders of Holloway and Clark led officers to suspect
that Gerald Drummond and Robert McDowell were the perpetrators. Over one year later,
Drummond and McDowell were arrested for the murders. The following evidence was
presented at their subsequent death penalty trial.
Holloway, who is black, had an on-again, off-again relationship with Drummond’s
sister, Annie, who is white. Holloway and Annie Drummond had a child together. Rumor
had it that Drummond did not approve of his sister’s relationship with Holloway because
3 “‘Stippling’ is gunshot residue consisting of the unburned powder and debris that
is discharged from a firearm that is ‘tattooed’ onto a shooting victim's skin in the form of
pinpoint abrasions.” Commonwealth v. Murray, 83 A.3d 137, 156 n.7 (Pa. 2013).
[J-17-2022] - 2
of their different races, and because Drummond believed that Holloway did not support
the child that he had with Annie. On one occasion, Antonia Tisdale, who lived on
Longshore Avenue, heard Drummond threaten Holloway with physical violence.
Approximately one week before Holloway and Clark were murdered, Desiree Ford
witnessed Drummond pull a gun on Holloway, use a racial epithet, and threaten to kill
him. McDowell also had engaged in prior confrontations with Holloway, including one
argument that involved McDowell’s sister, and during which McDowell struck Holloway.
On the night of the Clark and Holloway murders, Antonia, Danyell, and Sharice
Tisdale heard three gunshots at around 2:00 a.m. Danyell looked out her window and
saw a white man wearing a black hoodie sprint past in the direction of Knorr Street, which
is where Drummond lived. Over three years later, after some equivocation, Danyell told
a detective that she believed that Drummond was that person. Danyell noticed that, in
the days following the murders, Drummond and McDowell, both of whom were regulars
in the neighborhood, were no longer seen in the area.
After the murders, McDowell told his girlfriend, Erica Marrero, that he had taken a
gun to the scene and was supposed to kill Holloway, but could not go through with it.
Instead, Drummond grabbed the gun from McDowell and shot Holloway. McDowell
stated that Drummond wanted to kill Holloway as punishment because Drummond
believed that Holloway had disrespected Drummond’s sister, Annie. Drummond had no
vendetta against Clark, but shot him because he could identify Drummond and McDowell
as Holloway’s killers. Later, during a walk on Vandike Street, McDowell pointed out to
Marrero where the killings had taken place and showed her a bullet hole in a fence.
One week after the murders, Drummond was sitting in the living room of his
mother’s home on Knorr Street with Amy Rudnitskas, Nicole Penrose, and Tara McDowell
(Robert McDowell’s sister). According to Rudnitskas, Drummond described how the
[J-17-2022] - 3
murders had taken place. Drummond explained that he and McDowell had approached
the victims in the street from the front and the back, forced the victims to their knees,
ordered them to place their hands behind their heads, and then shot them. Drummond
told the group that Clark had been killed first, and then Holloway. Amy Rudnitskas
believed that Drummond was fabricating a story. However, a week later, Drummond
repeated the story and admitted that he had been the shooter. He boasted that he took
the gun from McDowell and shot Holloway, who he believed deserved to be killed, and
then Clark, who was killed merely because he was a witness.
Penrose also testified for the Commonwealth. Penrose confirmed that
Drummond had made the incriminating statements at his mother’s home on Knorr Street.
Around Halloween 2007, Thomas Zehnder was at a party and overheard
Drummond bragging about the killings. Although Zehnder admitting to having trouble
remembering the events in question due to sustained drug use, he testified that he heard
Drummond state that, because he had executed Holloway while on his knees and close
up, Holloway would have to have a closed casket funeral. Zehnder heard Drummond
admit that the reason for the killing was Holloway’s disrespect of Drummond’s sister, and
that he then had to kill Clark because he did not want to leave anyone alive who could
identify him. A few weeks later, Drummond warned Zehnder that, if he mentioned
Drummond’s confession, he would end up dead like Holloway and Clark.
Approximately one year later, Amy Rudnitskas brought up the murders while
conversing with McDowell. McDowell again admitted that he was supposed to be the
triggerman, but that he could not bring himself to do it. He explained that Drummond took
the gun from him and committed the murders.
On September 6, 2008, police officers arrested Drummond and McDowell and
charged them with murder, based upon statements obtained from witnesses. Thereafter,
[J-17-2022] - 4
associates of Drummond threatened or intimidated a number of witnesses. Drummond’s
brother, who had children with Amy Rudnitskas, threatened to take the children from her
if she testified against Drummond. Someone put a menacing note and bullets in
Rudnitskas’ mother’s mailbox. Thomas Zehnder was assaulted while in prison and had
to be placed in protective custody. After Nichole Penrose testified at Drummond’s
preliminary hearing, she was robbed, beaten, and warned not to appear at any other court
appearances.
Similarly, Tara McDowell, co-defendant McDowell’s sister, threatened Susan
Coulter. While under the influence of heroin, Marrero had told Coulter that McDowell had
disclosed to Marrero his role in the murders and that he had given her a gun and asked
her to dispose of it. Three years later, on the eve of trial, Coulter told police officers of
Marrero’s admission. Tara McDowell warned Coulter that there would be consequences
if she cooperated in the prosecution. She even followed Coulter to her home. The
threatening behavior forced Coulter to move out of the neighborhood. Coulter
nonetheless testified at trial. No witness testified that Drummond himself requested,
suggested, or otherwise was responsible for the intimidation tactics.
* * * *
At the conclusion of trial, the Common Pleas Judge gave the following instruction
concerning reasonable doubt:
Now, ladies and gentlemen, the Commonwealth bears this burden, proof
beyond a reasonable doubt. It is the Commonwealth that must prove [sic].
So now we have the third leg of the house, the burden. It is the
Commonwealth’s burden to prove beyond a reasonable doubt each and
every one of the elements of the crimes that are before you.
It is the highest standard in the law. There is nothing greater but that does
not mean that the Commonwealth must prove its case beyond all doubt.
The Commonwealth is not required to answer all of the questions. In every
trial, there are millions of questions you could ask. Well, I wonder if this
happened? Well, I want to know about that. That is not the
[J-17-2022] - 5
Commonwealth’s burden. The Commonwealth is not required to prove its
case beyond all doubt. The Commonwealth is not required to meet some
mathematical certainty. The Commonwealth is not required to demonstrate
the impossibility of innocence.
A reasonable doubt is a doubt that would cause a reasonably careful and
sensible person to pause, to hesitate, to refrain from acting upon a matter
of the highest importance to their own affairs.
A reasonable doubt must fairly arise out of the evidence that was presented
or out of the lack of evidence that was presented with respect to some
element of each of the crimes charged.
Now, ladies and gentlemen, I find it helpful to think about reasonable
doubt in this way. Because I had the great fortune to speak with every
one of you individually, I know that each of you has someone in your
life that you love, a precious one, a spouse, a significant other, a
sibling, a niece, a nephew, a grandchild. Each of you loves somebody.
If you were told by your precious one that they had a life-threatening
condition and the doctor was calling for surgery, you would probably
say, stop. Wait a minute. Tell me about this condition. What is this?
You probably want to know what’s the best protocol for treating this
condition? Who is the best doctor in the region? No. You are my
precious one. Who is the best doctor in the country? You will
probably research the illness. You will research the people who
handle this, the hospitals.
If you are like me, you will call everyone who you know who has
anything to do with medicine in their life. Tell me what you know. Who
is the best? Where do I go? But at some moment the question will be
called. Do you go forward with the surgery or not? If you go forward,
it is not because you have moved beyond all doubt. There are no
guarantees. If you go forward, it is because you have moved beyond
all reasonable doubt.
A reasonable doubt, ladies and gentlemen, must be a real doubt. A
reasonable doubt must not be imagined or manufactured to avoid carrying
out an unpleasant responsibility. The fact that you stop and think about an
issue doesn’t mean you have reasonable doubt. Responsible people think
about what they are doing and I’m asking you think deeply about my [sic]
evidence. You may not find a citizen guilty based upon mere suspicion of
guilt. The Commonwealth’s burden is to prove a citizen who has been
accused of a crime guilty beyond a reasonable doubt.
[J-17-2022] - 6
If the Commonwealth has met that burden, then the citizen is no longer
presumed innocent and you should find him guilty; on the other hand, if the
Commonwealth has not met its burden you must find him not guilty.
N.T., 12/17/2010, at 18-22 (emphasis added). Drummond’s trial counsel did not object
to this instruction.
Following deliberations, the jury found Drummond guilty of two counts of first-
degree murder and one count each of criminal conspiracy, possessing an instrument of
crime, and carrying firearms on public streets in Philadelphia.4 At the conclusion of the
penalty phase, the jury could not reach a unanimous decision on the death penalty. Thus,
on January 13, 2011, the trial court sentenced Drummond to two consecutive sentences
of life imprisonment for his first-degree murder convictions and a consecutive aggregate
term of fifteen to thirty years in prison for the remaining convictions.
Drummond filed a direct appeal. The Superior Court affirmed the judgment of
sentence, see Commonwealth v. Drummond, 279 & 430 EDA 2011, 2013 WL 11256554(Pa. Super. Sept. 9, 2013) (unpublished memorandum), and this Court subsequently
denied allowance of appeal. See Commonwealth v. Drummond, 528 EAL 2013 (per
curiam). Drummond filed a petition for a writ of certiorari, which the Supreme Court of the
United States denied. See Drummond v. Pennsylvania, 574 U.S. 906 (2014) (per
curiam).
On October 1, 2015, Drummond filed a timely, pro se PCRA petition, and an
amended, counseled PCRA petition on September 11, 2017. In his petition, among other
issues, Drummond contended that his trial attorney was ineffective for failing to object to
the trial court’s reasonable doubt instruction.5 Following a hearing, the PCRA court
4 See 18 Pa.C.S. §§ 2502(a), 903, 907, 6108, respectively.
5 Drummond also alleged that the Commonwealth violated Brady v. Maryland, 373
U.S. 83 (1963), by failing to disclose certain exculpatory evidence pertaining to
agreements made with material witness Nicole Penrose, that trial counsel was ineffective
[J-17-2022] - 7
denied Drummond’s petition, finding that the instruction, when read in the context of the
court’s instructions in their entirety, did not diminish the reasonable doubt standard.
Drummond appealed to the Superior Court.
On February 16, 2021, in an unpublished memorandum, the Superior Court
affirmed the PCRA court’s order. After setting forth the standard of review and governing
PCRA principles, the Superior Court recited the familiar rule that a jury charge must be
read “as a whole to determine if it is fair and complete.” Commonwealth v. Drummond,
2187 EDA 2018, 2021 WL 603244, at *3-4 (Pa. Super. Feb. 16, 2021) (quoting
Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008)). The intermediate
court explained that an imperfect jury instruction does not trigger automatic reversal, so
long as the balance of the instructions, “taken as a whole, fairly and accurately convey[]
the essential meaning.” Id. at *4 (quoting Commonwealth v. Uderra, 862 A.2d 74, 92 (Pa.
2004)). The Superior Court noted that trial judges possess vast discretion in formulating
instructions, and are not required to use any particular words, so long as the instructions
adequately and accurately state the law for the jury.6
Having outlined the basic governing principles, the panel turned to Drummond’s
challenge to the trial court’s reasonable doubt instruction. The court emphasized that the
use of real-life examples or hypotheticals is not a novel practice, and is one that has been
for failing to request a cautionary instruction with regard to the evidence of threats and
intimidation against Commonwealth witnesses, and that trial counsel was ineffective for
failing to request a mistrial after a Commonwealth witness testified that Drummond had
racist beliefs and used racial slurs. Because we granted allowance of appeal only upon
the jury instruction issue, none of these other challenges are before us today. See
Commonwealth v. Drummond, 261 A.3d 1035 (Pa. 2021) (per curiam). Thus, we do not
address them here.
6 Id. (citation omitted).
[J-17-2022] - 8
approved by earlier Superior Court panels.7 Not only did the court find no patent error in
the use of the medical illustration, but it noted that other portions of the instruction aligned
closely with the suggested reasonable doubt instruction in the Pennsylvania Suggested
Standard Jury Instruction Manual.8 Finally, the court concluded that, when read in
conjunction with the otherwise accurately stated jury instruction, and because the
instruction never relieved the Commonwealth of its burden of proof or removed the
presumption of innocence, it was not reasonably likely that the jury applied a diminished
reasonable doubt standard.9 Finding no defect in the instruction, the panel held that
Drummond failed to demonstrate that his claim against trial counsel had arguable merit,
defeating his ineffective assistance of counsel claim in its entirety.10
Drummond filed a petition for allowance of appeal with this Court, which we
granted on August 25, 2021, limited to the following question: “Was trial counsel
ineffective for not objecting to the trial court’s jury instruction on reasonable doubt?”
Commonwealth v. Drummond, 261 A.3d 1035 (Pa. 2021) (per curiam).
* * * *
In PCRA appeals, our standard of review is well-settled. When reviewing the
denial of a PCRA petition, an appellate court must determine whether the PCRA court’s
7 Id. (citing Commonwealth v. Jones, 858 A.2d 1198, 1201 (Pa. Super. 2004)
(finding no error in a reasonable doubt instruction that contained an example contrasting
a person’s decision to cross a street at noon against heavy traffic with the same decision
at midnight when there is no traffic)).
8 Id. (citation omitted).
9 Id. at 5.
10 See, e.g., Commonwealth v. Daniels, 963 A.2d 409, 427 (Pa. 2009) (explaining
that a court “need not reach every prong of the ineffectiveness test, if the petitioner fails
to prove any one prong.”).
[J-17-2022] - 9
order “is supported by the record and free of legal error.”11 Generally, a reviewing court
is bound by a PCRA court’s credibility determinations and its fact-finding, so long as those
conclusions are supported by the record. However, with regard to a court’s legal
conclusions, appellate courts apply a de novo standard.12
To be entitled to relief under the PCRA, a petitioner must establish, by a
preponderance of the evidence, that his conviction or sentence resulted from one or more
of the errors enumerated in 42 Pa.C.S. § 9543(a)(2), and that his claims have not been
previously litigated or waived. 42 Pa.C.S. § 9544. An issue is previously litigated if “the
highest appellate court in which [the appellant] could have had review as a matter of right
has ruled on the merits of the issue.” Id. § 9544(a)(2). An issue is waived if the appellant
“could have raised it but failed to do so before trial, at trial, . . . on appeal or in a prior state
postconviction proceeding.” Id. § 9544(b).
To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must
satisfy the performance and prejudice test set forth by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687 (1984).13 This Court has recast the two-
part Strickland standard into a three-part test by dividing the performance element into
two distinct components.14 To prove that counsel was ineffective, the petitioner must
demonstrate: (1) that the underlying claim has arguable merit; (2) that no reasonable
basis existed for counsel’s actions or failure to act; and (3) that the petitioner suffered
11 Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012) (citing
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
12 Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
13 See Sepulveda, 55 A.3d at 1117.
14 Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012); Commonwealth v. Pierce,
527 A.2d 973, 975 (Pa. 1987).
[J-17-2022] - 10
prejudice as a result of counsel’s error.15 To prove that counsel’s chosen strategy lacked
a reasonable basis, a petitioner must prove that “an alternative not chosen offered a
potential for success substantially greater than the course actually pursued.”16 To satisfy
the prejudice prong, a petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different but for counsel’s action or
inaction.17 Counsel is presumed to be effective; accordingly, to succeed on a claim of
ineffectiveness the petitioner must adduce sufficient evidence to overcome this
presumption.18
Drummond’s ineffectiveness claim is predicated upon counsel’s failure to object to
a jury instruction. The well-settled principles pertaining to jury instructions guide our
analysis. A trial court has broad discretion in formulating and delivering instructions to a
jury.19 When reviewing the exercise of that discretion, an appellate court must evaluate
the trial court’s instruction “as a whole to determine if it was fair or prejudicial.”20 A trial
court may use such language as it chooses, “so long as the law is clearly, adequately,
and accurately presented to the jury for its consideration.”21 “We will not rigidly inspect a
15 Sepulveda, 55 A.3d at 1117 (citing Pierce, 527 A.2d at 975).
16 Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (quoting Commonwealth v.
Williams, 899 A.2d 1060, 1064 (Pa. 2006)).
17 Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
18 Sepulveda, 55 A.3d at 1117.
19 Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011).
20 Commonwealth v. Hawkins, 787 A.2d 292, 301 (Pa. 2001); see also
Commonwealth v. Stevens, 739 A.2d 507, 527 (Pa. 1999) (“When reviewing a challenge
to a part of a jury instruction, an appellate court must review the jury charge as a whole
to determine if it is fair and complete.”).
21 Id. (citing Commonwealth v. Jones, 668 A.2d 491, 517 (Pa. 1995)).
[J-17-2022] - 11
jury charge, finding reversible error for every technical inaccuracy, but rather evaluate
whether the charge sufficiently and accurately apprises a lay jury of the law it must
consider in rendering its decision.”22 “Error cannot be predicated on isolated excerpts of
the charge, but it is the general effect of the charge that controls.”23
* * * *
At the heart of Drummond’s ineffectiveness claim is his challenge to the propriety
of the trial court’s proof beyond a reasonable doubt instruction. It is difficult to overstate
the importance of proof beyond a reasonable doubt in criminal cases. This standard of
proof is a prerequisite to the government’s deprivation of a person’s liberty, and it is one
mandated by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.24 Justice Harry Blackmun once explained: “Our democracy rests in no small
part on our faith in the ability of the criminal justice system to separate those who are
guilty from those who are not. This is a faith which springs fundamentally from the
requirement that unless guilt is established beyond all reasonable doubt, the accused
shall go free.”25 Proof beyond a reasonable doubt represents society’s judgment
concerning “the degree to which we weigh the injustice of letting a factually guilty person
22 Jones, 668 A.2d. at 1276.
23 Commonwealth v. Pursell, 724 A.2d 293, 314 (Pa. 1999) (citing Commonwealth v.
Woodward, 394 A.2d 508 (Pa. 1978)).
24 See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (stating that the beyond
a reasonable doubt standard is the “basic protection . . . without which a criminal trial
cannot reliably serve its function.”) (citation omitted).
25 Victor v. Nebraska, 511 U.S. 1, 28 (1994) (Blackmun, J., concurring and
dissenting).
[J-17-2022] - 12
go free versus the injustice of convicting persons who are actually innocent.” 26 The
standard is indispensable in “reducing the risk of convictions resting on factual error,” and
it “provides concrete substance for the presumption of innocence.”27
It is by now a commonplace that this familiar standard “plays a vital role in the
American scheme of criminal procedure.”28 What vexes the courts, however, is the task
of explaining this critical, yet amorphous standard to jurors in a way that allows them to
perform their role objectively and that concentrates their focus exclusively upon the
evidence of record. A criminal defendant is entitled to a “positive instruction fully and
accurately defining reasonable doubt.”29 “Only in this way, can a jury fulfill its
responsibility to decide the guilt or innocence of an accused. In the absence of a proper
reasonable doubt charge, an accused is denied his right to a fair trial.”30 However, though
the reasonable doubt standard “is an ancient and honored aspect of our criminal justice
system, it defies easy explication.”31 And, while the standard “is justifiably incanted and
formulated to convey to the jury the serious degree of certitude it must have before it
pronounces an individual guilty,” it is, “like all human standards in a human system, . . .
26 Bruce Antkowiak, Judicial Nullification, 38 CREIGHTON L. REV. 545, 559 (2005)
(summarizing Scott Sundby, The Reasonable Doubt Rule and Meaning of Innocence, 40
HASTINGS L.J. 457, 460-61 (1989)).
27 In re Winship, 397 U.S. 358, 363 (1970).
28 Id.29 Commonwealth v. Young, 317 A.2d 258, 262 (Pa. 1974).
30 Id. at 263.
31 Victor, 511 U.S. at 5; see also United States v. Hernandez, 176 F.3d 719 (3d Cir.
1999) (“Reasonable doubt is not an easy concept to understand, and it is all the more
difficult to explain.”).
[J-17-2022] - 13
imperfect, somewhat arbitrary and fluid to the point of being remarkably imprecise in its
case to case application.”32
Put simply, “[a]ttempts to explain the term ‘reasonable doubt’ do not usually result
in making it any clearer to the minds of the jury.”33 In an effort to alleviate, or at least
mitigate, this difficulty, courts sometimes use hypotheticals or other illustrative devices
that call upon jurors to contemplate decisions and circumstances that arise in their
everyday lives. Such devices, when used in an effort to assist jurors in deciding whether
the Commonwealth has satisfied its evidentiary burden, can create a significant risk of
juror confusion or, more importantly, can have the deleterious effect of diminishing the
Commonwealth’s constitutional burden of proof. In assessing whether such devices
contravene basic constitutional requirements, we ask “whether there is a reasonable
likelihood that the jury has applied the challenge in a way that violates the Constitution.” 34
Thus, the question in the case sub judice is whether there was a reasonable likelihood
32 Antkowiak, supra, at 558. To demonstrate the difficulty of explaining reasonable
doubt to jurors, Professor Antkowiak offers the following hypothetical:
Imagine the difficulties that a trial court would have instructing a jury as to
how it should go about finding whether the temperature in the jury room
reached 78 degrees. If they were unaided by an accurate thermometer, the
jury would simply have to go on its feeling as to whether the temperature
rose to a particular point. But, unlike in circumstances of temperature where
a Court could judge the accuracy of the jury’s determination by reference to
the tools of science, a jury’s determination that the government’s evidence
has removed all reasonable doubt from the case is not one readily
susceptible of accurate determination.
Id. at 558 n.49.
33 Miles v. United States, 103 U.S. 304, 312 (1880).
34 Estelle v. McGuire, 502 U.S. 62, 73 (1991) (citing Boyde v. California, 494 U.S.
370, 380 (1990) (emphasis added)).
[J-17-2022] - 14
that the jurors applied a diminished standard of proof when the trial court instructed them
thus:
Now, ladies and gentlemen, I find it helpful to think about reasonable
doubt in this way. Because I had the great fortune to speak with every
one of you individually, I know that each of you has someone in your
life that you love, a precious one, a spouse, a significant other, a
sibling, a niece, a nephew, a grandchild. Each of you loves somebody.
If you were told by your precious one that they had a life-threatening
condition and the doctor was calling for surgery, you would probably
say, stop. Wait a minute. Tell me about this condition. What is this?
You probably want to know what’s the best protocol for treating this
condition? Who is the best doctor in the region? No. You are my
precious one. Who is the best doctor in the country? You will
probably research the illness. You will research the people who
handle this, the hospitals.
If you are like me, you will call everyone who you know who has
anything to do with medicine in their life. Tell me what you know. Who
is the best? Where do I go? But at some moment the question will be
called. Do you go forward with the surgery or not? If you go forward,
it is not because you have moved beyond all doubt. There are no
guarantees. If you go forward, it is because you have moved beyond
all reasonable doubt.35
For the reasons that follow, we conclude that this instruction created such a
likelihood and that Drummond accordingly has demonstrated that his claim has arguable
merit.
* * * *
Broadly speaking, Drummond’s primary argument is that the trial court’s surgery
analogy had the practical effect of lowering the Commonwealth’s burden of proof to
something below proof beyond a reasonable doubt. In support of this contention,
Drummond first argues that the instruction was framed unconstitutionally; it asked jurors
to consider whether they would “go forward” with the surgical procedure instead of asking
35 N.T., 12/17/2010, at 20-21 (emphasis added).
[J-17-2022] - 15
them whether the circumstances cited would cause them to “hesitate to act,” a formulation
that Drummond maintains is required to comport with due process.36 Second, relying
upon Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. 2017) (unreported), Drummond
contends that the emotionally-charged nature of the analogy distorted the jury’s objective
task and overemphasized the necessity to act.37 In other words, by encouraging jurors
to consider proof beyond a reasonable doubt in the context of a personal, emotional
situation, the trial court likely caused the jurors to apply a standard of proof lower than
that which is required by the Fourteenth Amendment.
While Drummond’s argument premised upon Holland is not without support, it does
not suffice to resolve the case in his favor. Holland involved a prosecution of a husband
and a wife for income tax evasion.38 During closing instructions, the trial court defined
reasonable doubt as “the kind of doubt . . . which you folks in the more serious and
important affairs of your own lives might be willing to act upon.” 39 The Supreme Court
expressed a clear preference for a reasonable doubt instruction framed “in terms of the
kind of doubt that would make a person hesitate to act, . . . rather than the kind on which
he would be willing to act.”40 Because the trial court in the instant case told the jurors to
ask whether they would “go forward with the surgery or not,”41 Drummond fairly argues
that the instruction here conflicts with Holland’s preferred formulation.
36 See Brief for Appellant at 39 (asserting that Holland v. United States, 348 U.S. 121(1954), “renders the instruction at issue constitutionally defective.”)
37 Id. at 39-40.
38 348 U.S. at 124.
39 Id. at 140.
40 Id. (citation omitted).
41 N.T. 12/17/2010, at 18-22.
[J-17-2022] - 16
However, any effort to invalidate the instruction in this case based upon Holland
fails. The Supreme Court did not invalidate the “willingness to act” or “going forward with
an act” language as unconstitutional, nor has it done so in the years since deciding
Holland. The Holland Court did no more than express a preference for one form over
another. Although the Court stated that defining reasonable doubt as “something the jury
would act upon” would cause “confusion,” it simultaneously concluded that this framing
would not result in “misapprehension,” which was the Court’s primary concern.42 The
Court “believe[d] that the instruction as given was not of the type that could mislead the
jury into finding no reasonable doubt when there was some.”43 “[T]aken as a whole, the
instructions correctly conveyed the concept of reasonable doubt to the jury.” 44
As a general matter, we agree with the Holland Court’s preference, and we urge
trial courts to avoid instructions framed in terms of “going forward” or of a “willingness to
act.” We do not encourage courts to innovate hypotheticals, examples, or other
illustrations in order to instruct juries, given the increased potential not only for confusion,
but also for constitutional infractions. Nonetheless, because the Fourteenth Amendment
neither mandates nor precludes any particular format for jury instructions,45 it also does
not necessarily or categorically prohibit the use of these illustrative devices. If a trial court
elects to run the risk of the perils associated with such methods of instruction, we, like the
Supreme Court of the United States, prefer that such instructions be framed in terms of a
“hesitation to act,” rather than a “willingness to act.”
42 Holland, 348 U.S. at 140.
43 Id.
44 Id.
45 See Victor, 511 U.S. at 5 (“the Constitution does not require that any particular
form of words be used in advising the jury of the government’s burden of proof”).
[J-17-2022] - 17
* * * *
Drummond’s second argument finds more purchase. Because of the threat that it
poses to a criminal defendant’s right to a fair trial, the use of personal, emotion-laden,
judge-crafted hypotheticals must be viewed with substantial circumspection.46 We
endorse the sentiments offered by former Chief Justice Saylor in his concurring opinion
in Commonwealth v. Fisher, 813 A.2d 761 (Pa. 2002) (plurality).47 In that case, Fisher
challenged (as part of an ineffective assistance of counsel claim) the trial court’s use of a
hypothetical in his first-degree murder trial. The trial judge there had attempted to explain
the concept of proof beyond a reasonable doubt to the jurors by analogizing that concept
to “a parent weighing the advantages of placing a child in private school rather than public
school. The judge described the point at which the parent reaches a decision as the point
where he overcomes reasonable doubt.” Id. at 769. The Fisher Court assessed the
instructions in their entirety and determined that they “clearly and accurately stated the
law,” and that counsel thus could not be deemed ineffective for having failed to object to
the hypothetical. Id. at 770.
Although he concurred in the result, former Chief Justice Saylor expressed
reservations concerning the use of “analogies or illustrations to explain reasonable
46 Fair argument can be made that the use of hypotheticals of this nature should be
prohibited outright. This is a tempting proposition, given the potential for harm
engendered by the practice. However, we are cognizant that the United States Supreme
Court has never condemned the use of hypotheticals as a matter of federal constitutional
law, and has neither required nor prohibited the use by trial courts of any particular form
of language when defining reasonable doubt within the ambit of our nation’s Constitution.
Accordingly, while we disapprove of the use of hypotheticals in the explication of the
reasonable doubt standard, there is no federal constitutional justification for outright
prohibition.
47 At the time that Fisher was decided, Justice Saylor had not yet assumed the role
of Chief Justice. Nonetheless, because he later held that title, we refer to him here as
former Chief Justice Saylor.
[J-17-2022] - 18
doubt.” Id. at 774 (Saylor, J., concurring). He deemed “inapt” the trial court’s analogy of
“a husband and wife arguing over the advantages and disadvantages of enrolling their
child in a private school.” Id. He perceived a difference “between making a future
personal decision and deciding whether facts offered by the Commonwealth surrounding
a past incident were sufficiently proven beyond a reasonable doubt.” Id. He explained
that illustrations of this nature risk suggesting “a preponderance of the evidence weighing
process, obfuscating the applicable burden of proof.” Id. at 773-74. The former Chief
Justice emphasized that this is why the Pennsylvania Suggested Standard Jury
Instruction Manual notes that its reasonable doubt instruction is “intentionally brief.” Id.
(citing Pa. SSJI (Crim) § 7.01, subcomm. note). The instructions subcommittee was
concerned that any further elaboration ran the risk of prejudicially confusing the jury. Id.
The subcommittee members, who undoubtedly spent countless hours discussing,
drafting, debating, and redrafting the model instructions, obviously did not believe that
hypotheticals were a viable explanatory tool for this nebulous yet critically important
concept. Neither did former Chief Justice Saylor.
Former Chief Justice Saylor criticized the practice of using examples to explain
reasonable doubt because “such examples tend to mislead the jury, trivialize its
responsibility, and understate the burden of proof.” Id. at 774. He then concisely
summarized the problem inherent in conflating the proof beyond a reasonable doubt
standard with hypotheticals concerning everyday human behaviors and thought
processes:
Moreover, most people do not make private decisions based upon a
reasonable doubt standard, as “deciding the wisdom of future action
involves a different type of judgment than that used in deciding whether
something did or did not happen.” Bumpus v. Gunter, 452 F.Supp. 1060,
1062 (D. Mass. 1978). Indeed, individuals often have minimal information
upon which to base important future decisions, and nevertheless act despite
reasonable doubts. A jury may also be inclined to accord undue weight to
[J-17-2022] - 19
an example, finding it easier to understand, and, during deliberations, may
simply compare a defendant’s conduct with the example.
Id. (footnote and some citations omitted).
The United States Court of Appeals for the Third Circuit similarly has recognized
the dangers of instructing jurors to draw upon their own personal feelings when deciding
whether the government has proven a defendant’s guilt beyond a reasonable doubt. In
United States v. Hernandez, 176 F.3d 719, 729 (3d Cir. 1999), the District Court had
instructed the jurors that the point at which evidence exceeds reasonable doubt can be
found “in your own head and your own soul and your own spirit and your own judgment.”
Hernandez argued that this type of instruction appealed to the jurors’ subjective instincts
rather than directing them objectively to review the evidence presented. Before assessing
the merits of the claim, the Third Circuit insightfully explained the realities of how
reasonable doubt can resonate in the minds of jurors, who are almost always non-
lawyers:
[G]iven the concerns about crime that are so prevalent in today’s society,
common sense suggests that it is particularly difficult for lay jurors to
understand that they must acquit a criminal defendant if the prosecution
does not establish guilt beyond a reasonable doubt, even if they feel that
the defendant is probably guilty. Jurors may well be reluctant to free
someone accused of a serious and violent crime “merely” because the
government didn’t prove beyond a reasonable doubt what they feel “in their
hearts” is probably true. Yet, due process is satisfied by nothing less than
a juror’s understanding that he or she may not vote to convict a defendant
based upon a belief “that the defendant is probably guilty. . . .” Sullivan v.
Louisiana, 508 U.S. 275, 278 (1993) (emphasis added). Rather, an
impartial evaluation of evidence is required. “A juror is impartial if he or she
can lay aside any previously formed ‘impression or opinion as to the merits
of the case’ and can ‘render a verdict based on the evidence presented in
court.’” United States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992).
Reasonable doubt is, therefore, based upon reason rather than whim,
possibilities or supposition. Id. at 1286.
Hernandez, 176 F.3d at 728 (alterations in original).
[J-17-2022] - 20
An instruction that tells jurors to draw upon their personal beliefs (or to find the
answer in their hearts and souls) “clearly misleads the jury in a material way, to the
prejudice of the defendant.” Id. at 731. Beckoning jurors to draw upon their personal
lives not only misdirects them from their neutral task of objectively evaluating the evidence
presented by the parties, but also “allows each juror to judge the evidence by a visceral
standard unique to that juror rather than an objective heightened standard of proof
applicable to each juror. It allows jurors to convict based upon their individual ‘gut
feeling.’” Id.We recognize that a trial is not a sterile proceeding denuded entirely of all human
subjectivity. As the Third Circuit recognized, each juror must “subjectively believe that a
defendant has been proven guilty.” Id. at 732. But “that subjective belief must be based
upon a reasoned, objective evaluation of the evidence, and a proper understanding of the
quantum of proof necessary to establish guilt to a ‘near certitude.’” Id. The Third Circuit
in Hernandez concluded by specifically rejecting the contention that the balance of
correctly-stated instructions mitigated the impact of the unconstitutional portion of the
instruction:
An instruction which allows a juror to convict because of his or her
subjective feelings about the defendant’s guilt, without more, is clearly
inadequate. Here, . . . the District Court did tell the jury that their verdict
had to be based upon the evidence, and that the government had the
burden of proof. However, a likelihood of confusion remained as to the
quantum of evidence necessary to sustain a conviction, and the level of
certainty that a juror had to have as to the defendant’s guilt, because the
original explanation of reasonable doubt may well have remained in the
juror’s minds. Thus, a juror may well have concluded that a “gut feeling” as
to the defendant’s guilt was adequate to convict so long as that feeling was
supported by a preponderance of the evidence (or even less). The
reasonable likelihood that this may have happened is not mitigated merely
because jurors understood that the government had the burden of proof.
Id. (citation omitted).
[J-17-2022] - 21
There is no material difference between telling jurors to rely upon their own hearts,
souls, or spirits, and asking them to contemplate saving the life of a “precious one.”
Hypotheticals, illustrations, examples, appeals to jurors’ emotions, etc., all suffer the
same inadequacies, and all fundamentally misdirect the jury away from its solemn
undertaking. As former Chief Justice Saylor explained, there are few, if any, parallels
between real life decision-making and proof beyond a reasonable doubt. Not only does
the average person not require proof beyond a reasonable doubt before making important
decisions in his or her life, but often people press forward even though they harbor serious
doubt and uncertainty, particularly when changing jobs, buying houses, or assisting in the
health decisions of loved ones. These day-to-day decision-making processes are not
comparable, let alone equivalent, to finding proof of a crime beyond a reasonable doubt.
Methods of hypothetical explication and idiosyncratic analogy allow for significant,
subjective variance in how the criminal proof standard is executed. A criminal jury is
made up of twelve individuals tasked with deliberating and reaching a verdict. Each juror
arrives in the jury box with life experiences of his or her own. Each juror would act in his
or her own individual manner when a “precious one’s” life is on the line. Each juror would
bring to bear different religious, moral, and/or social beliefs in reaching that decision.
Juries are comprised of people of different temperaments, backgrounds and identities,
people who come from different regions and outlooks. Such diversity necessarily would
produce a different “gut feeling” in each juror about surgery decisions for “precious ones.”
When a trial judge tells the jurors to do anything other than objectively evaluate the
evidence, the court effectively creates twelve standards of review, each one different from
the next, silently generated in each individual juror’s mind based upon the individual lived
experiences and world views of that particular juror. For some, that standard might be
higher than the point at which reasonable doubt exists on a continuum. For others, it will
[J-17-2022] - 22
be far lower. That is where the constitutional violation occurs, down in the murky realm
that lies below proof beyond a reasonable doubt, where probabilities, whims, personal
defaults, shorthands, habits of mind, and suppositions exist.48
We have tried at length to envision some hypothetical that does not implicate these
concerns. We could not come up with a single usable one. We have no choice but to
conclude that the only way to minimize (or at least curb as much as possible) the potential
for confusion, misdirection, and constitutionally deficient consideration is to strongly
discourage the use of hypotheticals and examples as a means of explaining proof beyond
a reasonable doubt. The strongest method of avoiding these perils is the provision of
neutral, objective instructions that accurately portray the law, and that do not depend upon
idiosyncratic, subjective decision-making. While we decline to mandate one such charge
over the other here, we note that examples of sound instructions include, in addition to
the standard suggested instruction,49 the following instruction endorsed by Justice Ruth
Bader Ginsburg:
[T]he government has the burden of proving the defendant guilty beyond a
reasonable doubt. Some of you may have served as jurors in civil cases,
where you were told that it is only necessary to prove that a fact is more
likely true than not true. In criminal cases, the government’s proof must be
more powerful than that. It must be beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced
of the defendant’s guilt. There are very few things in this world that we know
with absolute certainty, and in criminal cases the law does not require proof
that overcomes every possible doubt. If, based on your consideration of the
evidence, you are firmly convinced that the defendant is guilty of the crime
charged, you must find him guilty. If on the other hand, you think there is a
real possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.50
48 See Hernandez, 176 F.3d at 728.
49 See Pa.SSJI (Crim) 7.01.
50 Victor v. Nebraska, 511 U.S. at 27 (Ginsburg, J., concurring) (citation omitted).
[J-17-2022] - 23
As stated, another example of an objective reasonable doubt instruction, one that “has
not been successfully attacked on due process grounds[,]” Pa.SSJI (Crim) 7.01, note, is
the primary recommended instruction found in the Pennsylvania Standard Suggested
Jury Instruction Manual. That standard instruction reads as follows:
Although the Commonwealth has the burden of proving that the defendant
is guilty, this does not mean that the Commonwealth must prove its case
beyond all doubt and to a mathematical certainty, nor must it demonstrate
the complete impossibility of innocence. A reasonable doubt is a doubt that
would cause a reasonably careful and sensible person to hesitate before
acting upon a matter of importance in his or her own affairs. A reasonable
doubt must fairly arise out of the evidence that was presented or out of the
lack of evidence presented with respect to some element of the crime. A
reasonable doubt must be a real doubt; it may not be an imagined one, nor
may it be a doubt manufactured to avoid carrying out an unpleasant duty.
Pa. SSJI (Crim) 7.01. It may be true enough that even objective instructions of this type
can never guarantee perfect clarity for jurors. But at least this may help to assure us that
verdicts, whatever they might be, are based upon proper and relevant considerations and
are premised upon a reasonable doubt assessment made within the correct parameters
rather than in wildly variable and subjective mindsets. Anything else engenders too much
risk that jurors will base their verdicts upon a quantum of proof lower than the Constitution
requires when the government seeks to deprive a person of his or her liberty.
* * * *
Notwithstanding our view that the use of hypotheticals, colorful examples,
illustrations, judicial yarns, and the like, to explain proof beyond a reasonable doubt
should be avoided, neither the United States Supreme Court nor this Court has construed
the United States Constitution or the Pennsylvania Constitution to require such a
prohibition. Thus, we return to the specific question of whether Drummond’s substantive
challenge to the “precious ones” instruction here has arguable merit for purposes of his
ineffectiveness claim.
[J-17-2022] - 24
In assessing the impact of the errant instruction here, this Court does not need to
conclude that the jurors understood the instruction in a way that in fact caused any or all
of them to apply a diminished burden of proof. Given the confidentiality of jury
deliberations, and the prohibition against jurors testifying about the deliberative process,51
proving definitively that the jury used an unconstitutional standard is effectively
impossible. All that this Court must decide is whether there was a “reasonable likelihood
that the jury has applied the challenged instruction in a way that violates the
Constitution.”52
We first consider how the instruction in this case conflicted with the trial court’s
other directives. The trial judge repeatedly admonished the jurors to think and act
objectively, to keep their personal feelings out of the process, and to rely only upon the
evidence that came from the witnesses. The judge told the jurors that: (1) she would
give them the law “evenhandedly and, most importantly, accurately,” N.T., 12/12/2010, at
10; (2) their “decision about July 13, 2007 at 2:21 a.m. is to be based only on that evidence
which was presented in this courtroom, the facts as you determine them to be and the
logical inferences that flow from those facts,” id. at 12; (3) “your determination of the facts
in this proceeding must be based not on empathy or sympathy, not on prejudice for or
against anyone,” id. at 14; and (4) “[w]hat matters is the evidence. This is a dispassionate
analysis that you undertake and as you evaluate the evidence, you are only to focus on
whether the Commonwealth has proven each and every one of the elements of the crimes
that are before you beyond a reasonable doubt.” Id. at 14-15.
51 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017) (explaining the
parameters and origin of the “no-impeachment” rule).
52 Boyde, 494 U.S. at 381.
[J-17-2022] - 25
After thus urging the jurors toward an objective frame of mind, the court’s
hypothetical demanded otherwise. Now, the jurors were told, they were supposed to
consider their task not objectively, but on a very personal and emotional level. Their
examination of the facts no longer was about being evenhanded, logical, or
dispassionate. Their assessment turned instead to how each individual juror would react
if one of his or her own “precious ones” was at a very real risk of death. The jurors were
given free rein to do what the court had been telling them all along they were not allowed
to do. Nothing but confusion could result from that 180-degree pivot. There is no
reasonable possibility that the jurors ignored the emotional effect of the instruction and
that they instead acted only in accordance with the other, objective instructions.
We recognize that the problematic aspect of the trial court’s reasonable doubt
instruction was bookended by other, correctly-stated and objectively-based reasonable
doubt instructions. We do not overlook our practice of assessing instructions in the
context of the trial judge’s instructions as a whole, rather than in isolation.53 We have
considered all of the relevant instructions provided to the jury in this case in their entirety,
and in the manner in which the instructions interact. Such analysis does not ameliorate
the error, nor does it undermine our conclusion that it was reasonably likely that the jury
here considered the evidence using a lower standard of proof. The principle of
considering instructions as a whole might suffice to salvage a charge when a judge has
made a minor misstatement in some peripheral instruction. But this approach offers no
safe harbor when the misstatement confuses and distorts the most fundamental principle
in our criminal law and when it instructs jurors to perform their otherwise objective task by
likening it to an impassioned, last-ditch plea to save a loved one. Under these
circumstances, comparing the valid portions of the instruction against the invalid ones
53 See Hawkins, 787 A.2d at 301.
[J-17-2022] - 26
does not suffice to neutralize the prejudicial effect of the error. If it did, there never could
be a successful challenge to an errant reasonable doubt instruction so long as the judge
correctly mentioned the standard somewhere—anywhere—in the record. If that were the
case, then the Fourteenth Amendment would be toothless in this context.
We find further support for our conclusion that Drummond’s claim has arguable
merit in United States District Judge Gerald McHugh’s analysis in the federal habeas
corpus proceeding of Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. 2017) (unreported).
Brooks involved a similar instruction (given by the same Common Pleas Judge). We find
Judge McHugh’s examination of the instruction to be particularly compelling. We also
agree with Judge McHugh’s conclusion that the instruction diminished the applicable
standard of proof.
Judge McHugh first noted that, at Brooks’ trial, the trial court’s reasonable doubt
instruction had begun “without issue,” as the instruction mirrored the Pennsylvania
Suggested Standard Jury Instruction. After the “proper introduction,” the trial judge issued
to the jury the “precious ones” surgical analogy, and had then completed her instruction
with an accurate statement describing reasonable doubt. Id. at *3.
Judge McHugh found that this instruction violated due process because it allowed
the jury to interpret the relevant burden in a way that was a “degree of proof below” proof
beyond a reasonable doubt. Id. (citing Cage v. Louisiana, 498 U.S. 39, 41 (1991)). The
instruction, Judge McHugh concluded, was an act of discretion by the trial court that
“distort[ed] the controlling legal principles.” Id. He explained:
To test the constitutionality of the instruction given here requires
consideration of how a reasonable juror would analyze the hypothetical
decision presented in the court’s charge. In a case involving a “life
threatening” condition affecting someone “absolutely precious” to a juror,
where this is only one “known protocol” or “best protocol,” what level of
doubt would need to exist before a juror would deny them a chance at life?
Necessarily, one would need a profound, if not overwhelming, doubt to deny
a loved one their only or best opportunity for cure. But this is problematic
[J-17-2022] - 27
because the Supreme Court has held that elevating the level of doubt a juror
must have before acquittal is required violates the Due Process Clause. In
Cage v. Louisiana, 498 U.S. 39 (1990), after the trial court had defined
reasonable doubt as “grave uncertainty” and “substantial” doubt, the
Supreme Court ordered a new trial. In doing so, the Court observed: “It is
plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly
understood, suggest a higher degree of doubt than is required for acquittal
under the reasonable doubt standard.” Cage, 498 U.S. at 41.
Brooks, 2017 WL 3475475 at *4 (citations modified). Judge McHugh acknowledged that
the trial judge did not use words identical to those at issue in Cage, but nonetheless found
that the hypothetical produced the same effect: elevating the level of doubt necessary to
acquit. By using this instruction, the trial court “communicated the same concepts [as in
Cage] by means of a powerful and emotionally charged metaphor. Objectively speaking,
any person of decency and morals would strive to put aside doubt when faced with a
single life-saving option for a loved one.” Id. (footnote omitted).
Consistent with the well-established practice, Judge McHugh noted that, typically,
reviewing courts must consider a trial judge’s instructions in their entirety, rather than
focusing on an isolated portion thereof. However, in this instance, the “precious one”
hypothetical was the “centerpiece of the charge.” Id. at *5. It was not “ancillary to the
court’s charge, but rather was conveyed to the jury as a model for understanding the very
concept of reasonable doubt.” Id. The problem, Judge McHugh explained, is that when
reasonable doubt is expressed in this way it requires an “excessively high degree of doubt
to reach an acquittal.” Id. The hypothetical portion of the instruction is “structured in a
way that would encourage the jury to resolve” doubts, rather than assess the
reasonableness of the doubts and acquit if necessary. In other words, it creates “a strong
motivation to act,” which is not the jury’s job. If there is reasonable doubt, the jurors must
acquit, and the case is over. By contrast, the “precious one” instruction allows for an
acquittal to occur only after the jury finds a very high degree of doubt, not just a
reasonable one. See id. at *4.
[J-17-2022] - 28
Judge McHugh then offered the following passage from Scurry v. United States,
347 F.2d 468, 470 (D.C. Cir. 1965):
A prudent person called upon to act in an important business or family
matter would certainly gravely weigh the often neatly balanced
considerations and risks trending in both directions. But, in making and
acting on a judgement after so doing, such a person would not necessarily
be convinced beyond a reasonable doubt that he had made the right
judgment. Human experience, unfortunately, is to the contrary.
Judge McHugh found that this “insight applies with particular force where the personal
situation the jury is told to use as a benchmark is a potentially life or death medical
decision for a loved one.” Brooks, 2017 WL 3475475, at *5. Thus, Judge McHugh
concluded, it was reasonably likely that the jury applied a diminished burden of proof, and
that Brooks’ claim had arguable merit.
In accordance with Judge McHugh’s opinion, and based upon all of the foregoing
reasons, we conclude that Drummond has satisfied the arguable merit prong of the
ineffective assistance of counsel test. Drummond has advanced a legal claim that
manifestly has arguable merit. The hypothetical presented to the jury in this case
conflicted with the court’s other instructions to remain objective and neutral, tugged at the
jurors’ heartstrings in a powerful and intimate way, and directed the jurors to reach a
verdict using a real-life scenario that rarely, if ever, is (or even could be) resolved by proof
beyond a reasonable doubt. Much more frequently, the average person charts the course
of his or her life using a much lower burden of proof. With the trial court’s instructions
here, it was not merely reasonably likely that the jury used an unconstitutional standard;
it was almost a certainty.
* * * *
Drummond’s successful demonstration that his underlying claim has arguable
merit does not mean that he is entitled to relief. He still must prove that counsel lacked a
[J-17-2022] - 29
reasonable basis for failing to object to the instruction.54 It is well-settled that counsel
“cannot be held ineffective for failing to anticipate a change in the law.”55 At the time of
Drummond’s trial in December 2010, no Pennsylvania court ever had invalidated jury
instructions that used the hypotheticals which we disapprove of today. To the contrary,
at the time, the Superior Court had upheld such instructions, albeit in non-precedential
decisions,56 and this Court had never addressed the issue. Thus, based upon the law
extant in 2010, counsel was under no reasonable obligation to raise a challenge to the
instruction, as any such objection would have lacked a then-existing legal foundation.
Counsel was not required to anticipate, nor could he have foreseen, that this Court would
find the instruction to be constitutionally defective over a decade later. For this reason,
counsel cannot be deemed ineffective.
The order of the Superior Court is affirmed.
Chief Justice Todd and Justices Dougherty and Brobson join the opinion.
Justice Donohue files a concurring opinion.
Justice Mundy files a concurring and dissenting opnion.
54 See generally Commonwealth v. Mitchell, 105 A.3d 1257, 1266 (Pa. 2014). In
addition to the reasonable basis prong, Drummond also would have to demonstrate
prejudice. As to that prong, Drummond maintains that, because erroneous reasonable
doubt instructions constitute structural errors, see Sullivan, 508 U.S. at 281 (citing Rose
v. Clark, 478 U.S. 570, 577 (1986)), prejudice should be presumed. The Commonwealth,
on the other hand, argues this is not one of the rare circumstances where Strickland
prejudice can be presumed, and that Drummond has failed to demonstrate prejudice in
light of the compelling evidence of his guilt. Because we resolve this case on the
reasonable basis prong, we need not address prejudice. We express no opinion on
whether prejudice should be presumed under these circumstances.
55 Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009) (citation omitted).
56 See, e.g., Commonwealth Gant, 1612 EDA 2007, slip op. at 9 (Pa. Super. Sept.
21, 2009) (unpublished memorandum); Commonwealth v. Clarkson, 2859 EDA 2003, slip
op. at 12 (Pa. Super. Aug. 25, 2004) (unpublished memorandum); and Commonwealth v.
Johnson, 1639 EDA 1999, slip op. at 3 (Pa. Super. Aug. 23, 2000) (unpublished
memorandum).
[J-17-2022] - 30