*1 lеtter, his Merrell definitively knew that he had not been job selected for the and that no action further would be Nonetheless, taken with regard application. July 21, 1999, (84) eighty-four days after receiving the letter District, from the Merrell filed his Complaint with the Court of Common of Allegheny Merrell, Pleas County. having already action, received notice of the Board’s and having no action, reason wait for further had no reasonable basis to sit on any right that to appeal he had the District’s decision to hire another candidate.
Appellants’ record, Brief at 31-32. view, On this in my School District is correct. reasons,
For these I 28,1999 would find that April letter adjudication constituted an from which thirty Merrell had days to mount any challenge. Merrell failed to do so in a timely manner. Accordingly, I would reverse the decision of the Commonwealth Court and reinstate the Common Pleas Court order dismissing Merrell’s complaint.
855A.2d 726 Pennsylvania, Appellee COMMONWEALTH of v. BRYANT, Appellant.
Robert Supreme Pennsylvania. Court of
Submitted Oct. 2002. Aug.
Decided 2004.
Reargument Denied Oct.
122- *8 Dunham, Bryant. for Robert Brett
Robert Amy Spangler, Denean Streily, Rebecca Wayne Michael Pittsburgh, Com. Zapp, NEWMAN, NIGRO, C.J., CASTILLE, CAPPY,
Before BAER, SAYLOR, EAKIN & JJ.
OPINION Justice CASTILLE. partial from the denial appeal
This is an Act Relief Post Conviction under petition relief court vacated (“PCRA”), § 9541 et The PCRA seq. 42 Pa.C.S. *9 sentencing a new and ordered sentence death appellant’s For for relief. other claims but denied hearing, not below, find that appellant we set forth the reasons and, affirm the order accordingly, to further relief entitled court. the PCRA at the State Correc- authorities prison
In November pro- information acting upon Pittsburgh, at tional Institution an also inmate, appellant, found Chapman, an Abe vided Prison authorities inmate, marijuana. possession to be in Housing Unit prison’s in Restrictive appellant placed (RHU) was released days. appellant of 120 When period for a RHU, officer who had to the correctional from the he stated it who had Chapman that knew was marijuana he found the of it.” N.T. him and that he would “take care on “snitched” later testified 3/27/87, same correctional officer at 200. The against Chapman remarks retaliatory made appellant occasions, “every stating point at one at three other least Id. day.” will have his dog 15, 1984, appellant another morning May
On the Greer, and killed him. inmate, Chapman’s cell Larry entered Greer, pounds, 195 and 200 held weighed who between eight- an appellant on his bed while used Chapman 130-pound in his victim fifteen times knife to stab long inch homemade attack, chest, back, In leg. frenzy face and wounds himself and upon also stab inflicted errant blood-type with Blood was consistent Greer’s Greer. cell, in the hanging on a trousers pair Chapman’s splattered jacket by appellant worn the time. and on the sleeve as Hill, in the same cellblock an inmate housed Joseph toward him running and appellant observed Greer Chapman, dripping Hill noticed blood his cell breakfast. he left location, Hill’s arm. As reached from Greer’s and told him carrying into Hill’s hand thrust the knife he was bag, in a which he placed rid of it. Hill the knife get A to breakfast. way of in a trash can on disposed bag Hill placing officer who observed correctional just Hill it odd that did thought testified that he can later can, rather, toss the package but “placed” it there. 3/26/87, N.T. at 170.
Greer ultimately fled to the shower area prison where *10 authorities later found blood consistent with his blood-type. meanwhile, Appellant, had returned to his cell and was seated on a stool with a handkerchief wrapped around his hand when inmate, Ezzo, another Joseph stopped to inquire whether appellant was going prison job that morning. According to Ezzo’s testimony, appellant not, answered that he was further just volunteered he had Chapman. killed At that point, prison authorities had been alerted to Chapman’s mur- der and had ordered inmates back into their cells. Moments later, Ezzo informed a correctional officer that appellant had admitted to killing. The correctional officer then went to appellant’s cell and observed a gash one-inch palm appellant’s hand. 16, 1986, April
On after a trial before the Honorable James R. MacGregor, a jury found guilty of murder degree first a returned sentence of death. On post- motions, however, verdict the trial granted trial, court a new finding that a potentially prejudicial police report had been improperly included with other exhibits jury consid- er during deliberations.
At
1987,
a second trial in March
before the Honorable John
O’Brien,
jury
W.
found
guilty of first degree
insistence,
murder. At his
appellant represented himself dur
ing substantial
portions
Eventually, however,
the trial.
agreed to permit appointed stand-by counsel, Alonzo Burney,
Esquire,
to take over. Following a penalty hearing, at which
trial counsel did not present
evidence,
mitigating
jury
returned
sentence
death on March
1987.1 This Court
affirmed
judgment
of sentence on May
1990. Com
monwealth v. Bryant,
(1990).
524 Pa.
1. The aggravating found one circumstance: murder a life prisoner, 9711(d)(10), § 42. Pa.C.S. mitigating and no circumstances. 3, 1996, On June appellant filed a se pro petition. PCRA Appellant requested the then Pennsylvania Post-Convic tion Defender Association2 permitted be to represent him as post-conviction court, counsel and the PCRA per Judge O’Brien, granted appellant’s request. 22, 1997, May
On appointed an counsel filed amended petition for corpus habeas and PCRA relief raising seventeen error, claims of trial court prosecutorial misconduct and trial counsel ineffectiveness. The Commonwealth filed a timely alia,- answer. The Commonwealth alleged, inter that it was prejudiced in responding to appellant’s specific claim that trial counsel was for failing ineffective to present mitigation evi- penalty dence phase—noting the years nine that had passed since conviction—and requested a hearing limited to that Judge issue. O’Brien ordered a hearing to consider the Commonwеalth’s claim that it prejudiced. *11 Judge O’Brien also issued a Notice Intent to Dismiss without a hearing regarding appellant’s remaining claims. Appellant’s counsel requested the expansion of the evidentiary hearing include expert lay testimony on the “deplorable conditions on death row in Pennsylvania” and appellant’s alleged borderline mental retardation and other psychological impairments. The request was denied. 27,
At a February 1998 hearing on grounds the limited sought by Commonwealth, the trial counsel testified that he could not recall investigated whether he possible mitigation for penalty evidence the phase. On the basis of trial counsel’s testimony, Judge O’Brien vacated the sentence of death and ordered a new sentencing hearing. Appellant’s guilt phase claims were In dismissed. a brief two-page opinion on filed 15, 1998, May Judge O’Brien failed to guilt address the phase claims individually, instead adverting to the Commonwealth’s then, answer, and noting, without referring to any particular claim, that “[t]he Court petitioner denied relief the reasons that his claims were alternatively insufficiently pled, were merit, without had been previously litigated or were not Appellant represented by is now Capital the Habeas Unit of the Philadelphia. Defender Association of 132 own petitioner as his at a time when the acted
preserved slip. at 2. op. counsel.” PCRA guilt- his claims for Appellant appealed the dismissal of did to the Cоurt. The Commonwealth phase Superior relief June grant penalty the relief. On appeal phase M. of the Court of Com- Bigley Honorable Gerard the the Commonwealth’s Allegheny County granted mon Pleas retrial Stay penalty phase for a request Supersedeas day, The appellant’s appeal. the outcome of next pending without Superior quashed appellant’s appeal prejudice, Court this matter to the noting that it was “constrained remand a trial trial court conduct court with directive hearing upon sentencing impose judgment sentence that, in the op panel at 4. The further appellant.” Slip, noted upon impose event trial court should sentence of death time, Court, third this than Superior for a rather Court, jurisdiction over appeal. would have 26, 2001, Superior this vacated the September
On Court to Pa.R.A.P. and directed the pursuant Court’s order this Court. Superior appellant’s appeal Court transfer See January 29 appeal 2000. The was so transferred WAP 7, 2002. 6, 2003, to the
On this the matter February Court remanded reflecting of an preparation adequate opinion PCRA court its issues independent consideration raised v. accordance with Commonwealth petition PCRA amended Williams, and Com Pa.553, (2001), (Craig) A.2d Williams, Pa.207, v.(Roy) monwealth 732 A.2d *12 (1999). Thereafter, court, now the acting per the PCRA O’Toole,3 addressing an opinion Honorable Lawrence J. filed claims. appellant’s in thirteen
Appеllant’s following brief this Court raises the claims, essentially which are the same as the claims raised petition: his amended PCRA of to review the merits of appellant Whether entitled
all counsel prior of the issues raised because was ineffective O’Brien, longer original judge, Judge 3. The PCRA is no on the bench. and each litigate preserve to failing properly in this appeal? raised issues his state and federal denied appellant
2. Whether heard jury where process to due rights constitutional trial court but the criminal acts prior appellant’s of evidence mitigating instruction cautionary jury give to failed evidence, was counsel and effects prejudicial such evidence preclude to seek failing ineffective charge? appropriate an request pro- constitutional and federal state appellant’s
3. Whether and to incrimination, process to due self against tections the Com- violated when of counsel were assistance effective that, its case chief during introduced evidence monwealth his constitu- appellant exercised interrogation, during police right tional to remain silent? jury on to instruct the trial court’s failure
4. Whether and of his state deprived of alibi the defense and whether process to due rights constitutional federal instruction, ob- appropriate an request failures counsel’s omission, claim on denied appeal raise the its ject to assistance of counsel? appellant the effective consti- constructively denied appellant was 5. Whether rights as his effective to counsel as well rights tutional argument closing counsel’s trial of counsel where assistance case, consisted theory appellant’s to articulate failed statements, conceded essentially barely coherent guilt? assistance was denied the effective 6. Whether and present to consult with failed where counsel counsel the Common- could have refuted who experts forensic crime? theory of the wealth’s assistance denied the effective appellant was
7. Whether of a credibility challenge failed to where counsel glove of a with evidence witness crucial Commonwealth testimony present and failed from witness seized have serious- testimony would witnesses whose of numerous witness? testimony of the Commonwealth ly undermined *13 134
8. Whether was his appellant denied state and federal rights constitutional to due process prosecutor when the repeatedly to of sought credibility bolster the his witnesses through and impermissible use inadmissible evidence comments?
9. Whether the trial court his denying appellant erred state and federal constitutional to when rights process, due it jury instructed that they could consider lesser any n.ot they offense unanimously unless concluded that appellant was not guilty greater offense?
10. appellant Whether denied effeсtive assistance of appellate counsel where counsel neither nor obtained complete reviewed the record? Whether denied state and federal rights
constitutional process, due the effective assistance counsel, to a full and fair PCRA hearing where significant portions the record have either been never counsel, produced or have not provided been PCRA court discovery, where the PCRA failed to order necessary and where PCRA court to grant evidentiary refused an hearing?
,12. prior failing Whether counsel was ineffective for raise the presented petition issues the PCRA at trial and in post-trial motions and for to litigate failing these issues on appeal?
13. Whether is from entitled relief his convic- tion because the cumulative effect these errors? eligible PCRA,
To be relief appel under an lant must prove, among other things, the issues he raises have previously litigated been waived. Pa.C.S. not. (as 9543(a)(3) § 16, 1996). January amended effective Appel lant’s judice claims sub allege are waived to the extent they trial court prosecutorial error or misconduct since such claims (see three, could two, have been raised direct appeal issues nine). four, 9544(b). eight § Pa.C.S. See Common (2001) (‘Tf wealth v. 568 Pa. Bracey, A.2d allegations previously of error have not litigated, been petitioner also that those have allegations must demonstrate ‘if An allegation been waived. dеemed waived *14 trial, have to petitioner could raised it but failed do so before ....”’) trial, review, unitary at during appeal (quoting [or] statute). issues, however, of Several the waived include boil- (see two, erplate, tag-line ineffectiveness claims issues three four). Also, appellant’s and redundant first and twelfth issues global, boilerplate allegations appeal include that trial/direct counsel failing was ineffective to raise all the substantive though claims in his claim alleged brief—even eleven raises PCRA and has to his nothing prior court error do with ’ five, six, Finally, counsel. issues seven and ten to purport only assert claims which sound in the ineffective assistance of proceeding appellant’s counsel. Since the PCRA constituted first opportunity challenge stewardship the trial/direct counsel, appeal claims counsel ineffectiveness 9543(a)(2)(h), are 42 cognizable, § Pa.C.S. not and waived. will Accordingly, review two through we issues ten the extent in trial they alleged sound counsel’s ineffectiveness. (claim will remaining We also review substantive claim eleven), alleges which PCRA error. court
Appellant claims that
trial counsel’s ineffectiveness
deprived
his right
him of
to counsel under both the federal
Constitution and the Pennsylvania Constitution. The test for
counsel ineffectiveness under the two charters is coterminous:
it is the
performance
prejudice paradigm
by
set forth
Supreme
U.S.
its
Court
seminal decision
Strickland v.
668,
Washington,
2052,
466 U.S.
104
To better by looking both half of the test applied performance has counsel as well arguable lodged against of the claim merit taken, or not path objective as the reasonableness Thus, Bomar, E.g., taken, 826 A.2d 855 n. by counsel. requires the defen the constitutional ineffectiveness standard competence presumption professional dant rebut (1) arguable claim is of underlying that: his demonstrating merit; (2) pursued by of conduct particular course designed basis to effectuate did have some reasonable interests; (3) ineffectiveness, is a there but counsel’s proceedings outcome probability reasonable (Michael) different. Commonwealth v. would have been Pierce, (2001); Commonwealth Pa.186, 786 A.2d Kimball, (1999). v. A failure to Pa. 724 A.2d *15 require satisfy of the will any prong test ineffectiveness (Michael) Pierce, 186, 567 786 A.2d rejection claim. Pa. of the 203.4 fact that complicated by claims is the appellant’s
Review of
during
represented
his
to
and
himself
right
he waived
concluded
of his trial. The PCRA court
portions
substantial
that
[of
that “to
the
of waiver
the issues
ignore
now
issue
to
allow [appel-
trial]
failed
at
would
appellant himself
raise
guarantee
to
of
and
mockery
judicial process
lant] make
of
immunity
consequences
self-representation.”
from the
court
at 8.
share this сoncern.
slip op.
PCRA
We
'
knowingly
intelligently
A
who
and
criminal defendant
at
may represent
to counsel
that
himself
right
waives his
so
he
of
may
rely upon
expertise
trial
his own lack
legal
not later
California, 422
Faretta v.
See
trial.
U.S.
ground for a new
(“[A]
(1975)
806,
2525,
46,
834
45 L.Ed.2d
n.
95 S.Ct.
562
to
himself cannot
thereafter
represent
defendant who elects
to a
of his own defense
complain
quality
amounted
ineffectiveness,
approach
"layered”
as set
4. This Court’s
to
claims
3,
(2003),
Rush,
and
forth in
v.
576 Pa.
137 ”); v. of counsel.’ Commonwealth assistance of ‘effective denial (1994); 1167, 447, Common 644 A.2d 537 Pa. Griffin, (1984) A.2d Szuchon, Pa. v. wealth a defen a situation wherein (“To create otherwise would hold assistance into his case ineffective dant, could build by design, for a new a basis claims, thus himself guaranteeing of counsel him.”). Burney Mr. to adverse if verdict were trial pro pre-trial most of the throughout represented pre-trial of all disposed court had the trial but once ceedings, his invoked complete, appellant jury selection motions Faretta, 422 See right self-representation. constitutional (defendant has Amendment Sixth 95 S.Ct. U.S. at defense). colloquy thorough In a his own right to conduct and intelli knowing waiver was whether determine on the nature trial court instructed gent, decision, him, possible consequences charges against as his own would assume rеsponsibilities and the counsel, following: including the as-
Now, somebody is that when thing I the other guess [sic] themselves defending responsibility sumes the trained, same by bound they are they’re legally knowledge to the same level they are held restrictions you law which who is trained means as a person court, Rules of Criminal the rules of have abide ... Procedure; of Evidence the Rules very importantly, you is an in which I out area again point and this have it; ways getting may and there be other are unskilled *16 disadvantage.... at a you that’s where would be stated appellant repeatedly N.T. at 62-63. After 3/25/87 decision, of his waiver significance that he understood the colloquy. supplement to prosecutor trial court invited the alia, inter wheth prosecutor appellant, asked Accordingly, to claim would be unable also understood he er he Appellant stated appeal. assistance of counsel ineffective thus Having this as well. consequence understood he counsel, to represent right appellant proceeded his to waived presentation through most the Commonwealth’s himself 138
its evidence with Mr. Burney serving stand-by as counsel.5 However, when an alleged problem dental rendered (cid:127) (or unable unwilling) counsel, to continue as his own Mr. Burney primary resumed representation. only The Common wealth witness who had not testified when Mr. Burney re sumed representation McAtee, Trooper State William an expert witness who testified regarding blood evidence. Be cause appellant right waived his to counsel and asserted right self-representation, which was honored after a collo quy, he may rely upon his own lack of expertise relief, ground for and consequently, we will not any consider ineffectiveness claims that arise from period of self-repre Faretta, See sentation. 46, 422 2525; U.S. at 834 n. 95 S.Ct. Szuchon, 484 A.2d further, however,
The Commonwealth goes argues that appellant is precluded from raising any trial counsel because, ineffectiveness claims once right waived his counsel, he right waived the for the remainder trial. We will not go this far.
“It is well established that a defendant can waive the right of self-representation it.” Buhl v. Cook asserting after sey, (3d 783, Cir.2000) 233 F.3d 800 see also cases); (citing Walker, Wilson v. 33, (2d Cir.2000) 204 F.3d 38 (petitioner initial request abandoned where subsequently had two lawyers different appointed and did not right again assert question after of self-representation had open been left Bartlett, discussion); further Williams v. (2d 95, 44 F.3d Cir.1994) (“Once ... asserted the right to self-representation may be through waived conduct indicating that one is vacillat ing on the issue or has abandoned request one’s altogether.”) Raulerson v. Wainwright, 732 F.2d (11th 803, Cir.) (defen dant waived self-representation right by proceeding with as- Davis, 274, 5. See Commonwealth v. 479 Pa. 388 A.2d 325 n. 3 (1978) (it advisable, strongly especially potential penalty death case, judge appoint "stand-by” that trial counsel to assist defendant permits); whatever extent defendant seе Wiggins, also McKaskle v. (1984) U.S. S.Ct. L.Ed.2d 122 (appropriate forjudge appoint "stand-by counsel” to through "steer defendant the basic trial.”). procedures of the
139 counsel), denied, 966, signed 366, cert. 469 U.S. 105 S.Ct. 83 (1984). Here, 302 L.Ed.2d when appellant announced that he was experiencing pain dental and was unable to with continue self-representation, the trial court ordered a recess dental Despite examination. two dentists’ conclusions to the contrary, appellant insisted that he was unable to In speak. following colloquy with appellant and Mr. Burney, appel lant affirmed that he wanted Mr. Burney serve as his again:
THE ... I suggested COURT: if you still felt that you on, carry could, were unable to that maybe if you we were agreeable, you let turn the case over to Mr. Burney and let him on carry with the case from this point and the Attorney District agreed had because the unusual case, circumstances of this that he agree would to do that....
MR you BURNEY: Are willing particular at this point n myself have now act as your trial counsel because problems medical you’re having; is that not correct.
MR. BRYANT: Yes. THE COURT: All right. yes; You said is that correct? MR. BRYANT: Yes.... Well,
THE okay Well, rate, COURT: any then. you are agreeable to Mr. Burney taking over at point? this MR. BRYANT: Yes.
N.T. at 293-95. 3/27/87
A court should indulge every reasonable presumption against waiver counsel. See Commonwealth ex rel. Rundle, McCray v. (1964). Pa. 202 A.2d Zerbst, Accord 458, 464, Johnson v. U.S. 58 S.Ct. (1938).
L.Ed. 1461 Although the trial court expressed some skepticism regarding appellant’s professed inаbility to contin counsel, ue as his own he was apparently satisfied that appel lant faith, was not acting bad and that he to proceed wished with counsel. Accordingly, the trial court expressly permitted counsel, with continue notwithstanding earlier right. waiver of the See Stano v. Dugger, 921 F.2d (en banc) (11th Cir.1991)
1125, 1143 to counsel (although right *18 affirmatively to and must be be automatically “attaches waived lost,” to does not “attach unless and right self-representation asserted”). course, appellant’s change it mid-trial until is Of matter, which, practical of mind created circumstances as a him to claims of prevail upon make it difficult for certain may Nevertheless, reject we Commonwealth’s ineffectiveness. submission that entitled to effective counsel Burney Mr. in. stepped once first that trial was ineffective for
Appellant alleges counsel object limiting instruc failing request cautionary, to and/or of his tions when the introduced evidence Commonwealth i.e., acts, his marijuana possession crimes or bad prior contends, and subsequent discipline.6 The Commonwealth concludes, previously court that this claim was opinion PCRA litigated.
A
if the
court
previously litigated
“highest appellate
claim
a matter
in which
could have had
as
of
petitioner
review
of
right has ruled on the merits
the issue.”
Pa.C.S.
9544(a)(2).
review,
§
On
this
direct
Court determined
crimes,
appellant’s
of
of
prior
namely
possession
evidence
result,
marijuana and
he
as a
discipline
received
were
Bryant,
to
a motive for
establishing
relevant
the murder.
(“Evidence
404(b)(2)
crimes,
at 594.
of other
A.2d
See Pa.R.E.
or acts
such as
wrongs,
may
purposes,
be admitted
other
intent,
motive,
plan,
of
knowl-
proof
opportunity,
preparation,
accident.”).
identity or
of mistake
edge,
absence
previously
that this claim was not
Appellant asserts
failure
focusing
because
is now
on counsel’s
to
litigated
he
instruction,
admissibility
than the
request
cautionary
rather
broad,
covering
Appellant's
ambiguously
apparently
addition-
6.
claim is
trial, including
"prior
appellant’s
al bad acts that came in at
criminal
allegations
Appellant
prior violent
Brief of
at
acts and
behavior.”
that,
Although appellant
concedes
the murder occurred in
"inevitable,”
prison,
id.
“[s]ome
this evidence
unavoidable”
19, 21,
prejudicial
some or all
this evidence was so
asserts that
cautionary
render its
without a
reversible
as to
admission
instruction
error.
this is a distinct
assuming
But even
of the evidence.7
impli
claim
to relief since
claim,
is not entitled
request
Failure
self-representation.
cates
con
introduction
evidence
upon
instruction
cautionary
failing
court
of trial
error
of a claim
a waiver
stitutes
v. Wal
instruction. See Commonwealth
cautionary
issue a
(trial
(1989)
failure
counsel’s
lace,
561 A.2d
522 Pa.
cautionary instruction
court did not issue
trial
object when
incar
prior
of defendant’s
of evidence
introduction
following
upon
based
claim error
any
in waiver of
ceration resulted
instruction); Common
cautionary
to give
failure
trial court’s
(issue
(1983)
waived
A.2d 739
Jones,
501 Pa.
v.
wealth
prosecutor’s
immediately objected
where defense
instructions).
or curative
mistrial
request
but failed to
conduct
the Common
was introduced
evidence
complained-of
The
*19
and
as his own counsel
acting
appellant
while
wealth
of that evidence
admission
object
to the
did
Appellant
cautionary charge.
contemporaneous
a
request
own
his
challenge
claims that
not raise ineffectiveness
may
46,
Faretta,
95
at 834 n.
422 U.S.
counsel. See
performance
Szuchon,
no relief
2525;
Accordingly,
A.2d at 1377.
484
S.Ct.
claim.
on this
due
trial counsel was ineffec
that
next contends
Appellant
address,
Troop
to,
State
object
or otherwise
failing
tive
appellant’s postM
testimony remarking upon
Knaus’
er Walter
should
trial counsel
asserts that
Appellant
iranda8
silence.
limine, in a
motion in
pre-trial
in a
raised the issue
have
mistrial,
instruction or
cautionary
a proper
request
belated
v.
decisions in Commonwealth
argues that
this Court’s
Appellant
363,
(1986)
v.
(I),
1167
Commonwealth
Pa.
508 A.2d
Buehl
510
493,
(1995),
(II),
claim is
771
refute that this
A.2d
540 Pa.
Buehl
(I),
in Buehl
Appellant
litigated.
*20
3/26/87, 255,
added).
N.T
260 (emphasis
Appellant avers that
the Commonwealth’s closing argument exploited his eventual
silence by referring to a “code of silence” among inmates:
Greer,
“Mr.
[appellant], not going
them,
to
see,
tell
but you
Mr. Chapman did ... and that’s why
3/30/87,
he died.” N.T.
clаim,
at 493.
In forwarding this
appellant argues that
this
case is “indistinguishable”
DiPietro,
from Commonwealth v.
538 Pa.
(1994),
The counters claim assuming Commonwealth even this is not as a of appellant’s self-representation, waived result Trooper Knaus’ response unsolicited to Commonwealth’s direct-examination was it permissible merely because referred to Further, how appellant concluded interview. Com- did argues monwealth that it in its exploit comment which to closing argument, merely appellant’s motive referred i.e., . killing Chapman: he was a “snitch” who failed honor “code of by appellant silence” followed and Greer.
The court concluded that PCRA this claim inef counsel is not fectiveness reviewable appellant acting because his own counsel Trooper when and Knaus-testified he failed object. Indeed, agree. appellant We implicitly concedes challenge he cannot testimony that was during admitted period self-representation by instead focusing upon those ie., stages counsel, of trial when appellant represented by pre-trial, jury However, charge, post-trial. and appellant, acting as his own counsel at the Trooper time Knaus actually testified, had full opportunity any objection to raise and/or request any relevant cautionary instructions what upon based actually transpired.10 do so Appellant’s contempora- failure to 9. We note that DiPietro did not exist when was tried in March of 1987. is a settled It rule that "we will not deem counsel ineffective failing anticipate change in the law.” v. Commonwealth Rollins, (1999). Hence, Pa. speak- 738 A.2d strictly here, ing, the DiPietro decision can command no result where the claim sounds in ineffective assistance. any advantage may It is by notable have achieved addressing appellant's alleged “post-arrest pre-trial silence” would have been undermined himself at trial since on cross- examination, appellant allegedly impermissible post- elicited the same Trooper arrest silence reference from Knaus: Q. you asked you you And me—do recall what asked me? Well, you your rights— A. after I read Q. you rights. my After read me I you A. Then asked you tell me what knew about the Abe Chapman killing. knew; Q. you told And I what I is that correct? said, up point quit A. me you You told to a I'll see in court. 3/26/87,
N.T. at 272.
144
See
Pa.
issue.
testimony
with
waived the
neously
the
Burkholder,
119,
v.
Pa.
302(a);
528
Commonwealth
R.Crim.P.
(failure
(1991)
objection
contemporaneous
to raise
An “a alibi is defense defendant involved at a than the scene place time different relevant impossible for therefrom to render it and so removed as Mikell, party.” v. guilty 556 him to be Commonwealth v. (1999) Commonwealth 566, Pa. (quoting A.2d (1996)) Kolenda, (emphasis 544 Pa. A.2d added). introduced, has a defen such been “Where evidence danger an alibi instruction to alleviate the dant is entitled to prove a failure to jurors impermissibly view might Mikell, 729 A.2d guilt.” a sign of the defendant’s defense at 570. allege
Initially, we note that does mandatory trial to file failing counsel was ineffective 573(C)(1)(a) pursuant alibi to Pa.R.Crim.P. notice of defense in (then-rule 305), who that: “A defendant provides which shall, at the time of alibi trial tends to offer the defense ... notice omnibus motion required filing pretrial [file in no Accordingly, position of Alibi Defense].” if event, testimony, In charge. any demаnd an alibi Greer’s believed, elsewhere appellant’s presence did not establish *22 the killer. Greer— to be impossible it was and of the crime at the scene found both blood-type was whose Chap- with was alone that he jacket—testified on He entered. assailant when a masked in cell Chapman’s man and attacks assailant’s knife that, off the fighting after claimed hand, alone with Chapman he left cuts to his left sustaining where prison range, other end to the assailant fled sink: slop in a his clothes washing sawhe Now, [Chapman’s] you when left Counsel:] Q. [Defense this did see you or cell, Chapman Mr. you did see going what was you or did hear you as left person anything? him as I left? Did I see
A. [Greer:] mean, left; you I left the anything you you Did see Q. any indication— cell, you do have saying I’m back; no, sir. A. I didn’t look know what don’t you look back so You didn’t Okay.
Q. him that? after happened No,
A. sir. left, go? did you where you Q. When um, have and, the—they near Range B I down to A. went to, um, try I there stopped divide. And a sink at the know, there, I you hand. Someone my wash on to and I continued it was cut how bad wanted see I is, um, I think which range side of the the other to the just kept running And if I’m correct. Range block. back of the your bad to see how to the divide you You said went
Q. sink? to use the you was cut and wanted hand Yes, sir. A. know who was there? you you And said—did
Q. time there at Um, individuals couple it was a A. and, bar um— just they pulled because just you, Now, questioning were police] Q. [the when identify you did ever now; you asked I’ve general anybody the divide you past where ran it you where said there was one or two individuals or whatever? A. I identify Did ever anyone? Yes.
Q. Who was that? A. I told—he asked me I before did seeing recall [appel-
lant] there and I told yes. them He was there washing I clothes. told them I when get tried to wash my hand, like, stopped know, me you get out of way, no he didn’t want blood on his clothes or something. 3/26/87, 358, N.T. believed,
Greer’s if testimony, certainly exculpa tory, as it was eyewitness man, testimony that a masked *23 not appellant, was the killer. This was affirmative in evidence appellant’s course, favor. Inferentially, of testimony that “A” is the killer excludes all others. But it does not place any of at any particular those others place, so as to establish an alibi. Indeed, since Greer was not in once, two places at but rather at only crime, of scene was in position no anyone’s establish presence elsewhere, much less an “alibi.” “Trial cannot counsel be held to be failing ineffective for take futile actions raise a meritless claim.” Commonwealth Howard, 86, (1994). v. 538 Pa. 645 A.2d Since testimony alibi, Greer’s did not establish an counsel was not ineffective.
Appellant next second-guesses trial counsel’s closing argu- ment, alleging that he was ineffective because he supposedly conceded involvement in the murder and failed to appellant’s theory articulate of the case. On review of the record, the PCRA concluded that this claim lacks .court merit. agree. We
As Supreme the U.S. Court recently noted unani in mously Yarborough v. Gentry, 540 U.S. 124 S.Ct. (2003) curiam), L.Ed.2d 1 (per review a defense attorney’s summation highly is deferential: right
The to effective assistance extends to closing argu- Nonetheless, ments. counsel has wide in deciding latitude how to represent client, best and deference to counsel’s presentation tactical his closing particularly decisions is important range of legitimate because broad defense strategy stage. arguments at that Closing “sharpen should fact,” clarify and issues for resolution the trier but which sharpen clarify issues to and how best to them are Indeed, questions many with it might reasonable answers. sometimes make sense to forgo closing argument altogether. of a attorney’s Judicial review defense summation there- highly fore deferential.... (citations 5-6, omitted).
Id. at 4 S.Ct. A review trial argument counsel’s in its closing entirety demonstrates that counsel adequately discussed the Commonwealth’s burden of proof, the and presumption degrees innocence homi- cide, the deficiencies weaknesses the Commonwealth’s evidence, end, and the defense To that trial theory. counsel noted that key the Commonwealth’s witnesses were fellow law, inmates who had violated jury reminded the they were free disbelieve suggested them. Counsel witnesses, key Ezzo, two Commonwealth Hill and may have received favorable treatment for their cooperation with au- thorities and jury asked the to take this into account when considering Moreover, the truthfulness of their testimony. the jury reminded that Hill’s testimony provided the sole link between and the “shank” used to kill Hill Chapman, only but that person who had actually been seen with murder weapon. Counsel further observed *24 Hill, that the Commonwealth had to investigate despite failed his admitted of disposal weapon, the murder argued and that authorities have may judgment rushed to by focusing their investigation exclusively upon appellant. Finally, counsel as- that serted theory Commonwealth’s regarding appellant’s motive—ie., Chapman that was a snitch—was by undermined the fact that had promised Ezzo that he would not him, him, hurt and indeed did not though hurt even he knew Ezzo was a “snitch” himself who had in implicated appellant the murder.
In attacking performance, counsel’s appellant now baldly abject states that “[c]ounsel’s failure to competently portray in his theory forth put and a coherent defense evidence counsel a constructive denial of closing argument constitutes of at 40. notion Appellant that mandates Brief of The relief.” defense stressed the constructive denial meritless. Counsel evidence, and reminded points, attacked the Commonwealth’s impartial. its fair and responsibility to be jury under Nor claim succeed Strickland does as whole and analysis. Indeed, closing rather than view the highlighting insists on perspective, appellant from counsel’s example, out of context. For fragmеnts argument, taken argument portion closing cites following where, contends, jury’s to draw the he trial counsel failed witnesses, to two and John adequately attention defense Greer McAndrews: advised custody, in interviewed already
Mr. Greer. He had cuts on his hands. Commonwealth rights well, explained. He says, you get how did these cuts? He anything that could didn’t the Commonwealth really give particular point. that Common- help the Commonwealth at did Mr. Mr. essence wealth not use Greer. Greer cooperative. McAndrews, course, didn’t Mr. He said he testified. anybody you why. tell at first. He told Commonwealth said, all All this time you you mean this time? waited Seems like the doesn’t want before? Commonwealth but by two “inmates” who are the defense believe called inmates you would have believe that called the Common- are somewhat wealth different. 3/30/87, per-
N.T. in this nothing 480-481. We see deficient Rather, point counsel formance. made effective only sup- inmates who Commonwealth chose call those its the Commonwealth ported theory, suggested could be deciding standard in which inmate employed double lawyer may made the Simply believed. because another have point differently closing does not counsel’s ineffective. render
Appellant improperly also trial avers credibility for the Hill and Ezzo when he stated vouched *25 that one of them say “I neither can’t closing argument: mean, say here and I I cannot stand truth. telling the are 3/30/87, at truth----” N.T. you the they telling not that are of context since statement out But takes this breath, that, trial counsel in next very to the fails note he witnesses: credibility those the questioned ... on 15th But at See, May not back I was there because wasn’t Larry telling I can’t Greer say same time truth in the telling wasn’t truth or McAndrews John Ezzo, Hill, jail. They in out of Mr. and same vein. Mr. jail, parole. out on back We’re parole, have been out can, maybe we we can’t. Maybe them? supposed to trust lawyer they event, against who any jurors may Id. In react and, thought limit their freedom blatantly trying think is is thus, strategy jury’s autonomy that stresses the low-key “a 10-11, at 7. S.Ct. Gentry, unreasonable.” U.S. not unwisely that invited Appellant further claims gave that him the testimony Hill’s jury believe weapon: murder opposed hearsay to look at evidence right
You have a to; but of course has said and then testified what someone something physical, is stronger would be when evidence something that’s physical has a in the sense versus backup you hearsay doesn’t evi- just hearsay, ignore mean dence, just when Hill took the mean because JoJo doesn’t knife; gave and so so doesn’t stand he said me it could be the truth.... you because ignore mean 3/30/87, appellant’s argument is again, at 458. Once N.T. on a he does the remainder reading; quote based selective sentence, it last which continues as follows: “but means else; something you with as if that’s not substantiated in a Id. Again, look into that harder sense.” viewed should context, jurors they effectively trial cоunsel reminded and, doing, in so testimony stress were free discount Hill’s truth. “This telling that no could be sure who ing one argument.” Gentry, of a very essence reasonable-doubt 10-11, 124 at 7. 540 U.S. at S.Ct. *26 trial
Appellant further asserts that counsel “aban when, him in discussing testimony, doned” Ezzo’s he “essen tially acknowledged [appellant] given that had the knife to JoJo Hill”: course, if Mr. Ezzo? have of a killing,
Without We there was gave we have in that Mr. Hill [appellant] fact the knife. He didn’t Mr. Hill what he tell did with the knife. He didn’t fact, a anyone happened. tell else what As matter Ezzo, Mr. have no no without we motive. We have first murder; mentioned, degree and as I that’s my opinion now. 3/30/87, N.T. is .Again, ignored, 472. context for trial counsel Hill; indeed, challenged specifically credibility the he sug- gested may that Hill a suspect himself have been the murder, but for his cooperation with authorities. See N.T. 3/30/87,482, 483.
. Additionally, that appellant charges trial counsel appellant by “inviting jury “abandoned” the to convict his client,” with following the statement: “Of course it wouldn’t be convicted; if tragedy right person was for you and that’s hammer decide. It’s not for me to it you into that to. 3/30/87, is not N.T. at [appellant] guilty.” 455. But again, this is not all that counsel said. Counsel went on to explain question guilt that the for innocence is the jury: prosecution It’s not for the it you hammer into that ishe It’s guilty. you positions to understand the that we take it’s you you and to decide because when back out come make; and and I at you stand there look the decision as long as you gonе through have process, gone out there beliefs; holding your firm to as far as you what think decision; this is making you case won’t any have with me. problem any problem Shouldn’t have with the you as long uphold your Commonwealth duty. Id. Trial did counsel not concede In appellant’s guilt. this turning on credibility, case reminded the that jury theirs, decision was not the Commonwealth’s. Trial counsel’s to profess appellant’s failure body innocence before the towas make decision “precisely the sort of calculated risk that at the of an lies heart advocate’s discretion.” Gen 8-10, 124 try, 540 at U.S. S.Ct.
Finally, appellant asserts that trial “com counsel pounded drawing jury’s abandonment” attention possibility the victim’s blood was coat when the evidence demonstrated that blood could have belonged to the victim. This allegedly abandonment occurred emphasized when inconclusiveness of blood evidence, as follows:
What have far as we here as blood he testified three types different blood as far as [appellant], Chapman Mr. *27 Greer; and Mr. but you notice he also said it’s exact. not [appel- We don’t know whether the blood that was on actually Chapman’s. lant’s] was coat Mr. It consis- was tent with his and 150 in approximate others terms. 3/30/87, added).
N.T. at 459 The (emphasis Commonwealth concedes that trial in misspoke stating counsel that the blood found on appellant’s coat was consistent with Chapman’s blood, However, than rathеr Greer’s. counsel noted correctly that fact just prior to in appellant the misstatement .cites brief: cell, that
You know guards [Chapman’s] when went to there was that evidence a crime had been committed. You know that were of samples there that was clothing taken and sent to the Lab though Crime even we in didn’t see those here knife, court. There analysis was of analysis the of a piece clothing [appellant] of of spot had a that nickel Larry blood that testified was consistent with that of shoulder; Greer on his you and I notice when said consis- tent we take certain basis and expand then we sometimes far as what our theories are. added). course,
Id. (emphasis jury, of The was that reminded arguments are not evidence. This mis- single statement, context, did render counsel ineffective.
Trial counsel’s summation reflected a reasonable approach stressing jury autonomy, downplaying of sus- testimony witnesses, pect and attempting plant seeds reason- necessarily which attends
able doubt. Given deference trial inherently subjective aspect lawyer- an of such review claim fails. ing, appellant’s that trial counsel was ineffec
Appellant next contends a present expert, with and forensic failing tive for consult i.e., have supposedly could refut splatter expert, a blood who case. Common theory The ed the Commonwealth’s proposed a identify that failed to respоnds wealth The petition. in his PCRA PCRA expert witness amended that “did and concludes opinion agrees, court further prove would expert how from such an report not establish a times in his not stab Mr. fifteen Chapman did [appellant] slip at op. cell.” PCRA Williams, v. Pa. A.2d Commonwealth
In that, (1994), rule this the well-settled Court noted test, claims addition to the ineffectiveness defendant “[w]hen trial, have been introduced expert testimony should was must available defendant articulate what evidence willing who to offer such evidence.” identify the witness Id.; Holloway, see also Commonwealth v. 524 Pa. (1990). petition failed Appellant’s A.2d 687 amended PCRA this testimo- identify willing expert to offer witness who Ñute, Ph.D., that H. Dale ny. Appellant simply now asserts has testimony in this has reviewed case concluded *28 appellant to splatter is warranted. Since failed analysis blood Moreover, below, it cannot make now. proffer make this he Dr. expert testimony bald that Nute’s appellant’s assertion theory the blood could have refuted Commonwealth’s splatter to show how purely speculative. Appellant of the fails case evidence, evidence, of other would have light this the claim fails. Accordingly, of the trial. this changed the outcome that most the two ineffectiveness claims We next address during self-repre- clearly challenge appellant’s performance seven, sentation, In in violation of issue Faretta/Szuehon. challenge to that trial counsel failed the appellant contends Hill, who of the Commonwealth witness testified credibility him and told him to gave weapon that the murder appellant cross- should have it. avers that counsel Appellant of dispose in the was discovered glove Hill a that concerning examined weapon. Appellant murder with the discarded bag along declares, unexplained that “the explanation, without further glove Hill had worn the the that glove suggests of presence In at 48. Appellant Brief of stabbed the deceased.” while he that trial argues eight, appellant claim in issue a similar when failing object prosecu- for to was counsel ineffective credibility his wit- to bolster sought “repeatedly tor and impermis- evidence through use of inadmissible nesses court at 51. The Appellant Brief of PCRA sible comments.” that claims failed both of these because determined of these witnesses. We the cross-examination conducted own lack of rely upon expertise not Appellant may agree. Faretta, at 834 n. for 422 U.S. relief. See ground Szuchon, 2525; A.2d at S.Ct. seven, however, also that argues part
As issue to addi- failing present for nine trial counsel was ineffective witnesses, at appellant’s whom testified tional inmate seven trial, could undermined Hill’s credi- who have supposedly first circumstantial evidence provided as a bility witness and/or did not Although Hill was killer. the PCRA court claim, we conclude directly part address this thus, to thereby proceed impeded, that our review is the merits. counsel was
To on a claim trial ineffective prevail witness, a must present to defendant demonstrate failing (2) existed; (1) was either aware that: witness (3) existence; should have been aware witness’s on behalf of the willing cooperate was and able witness (4) defendant; testimony necessary proposed Begley, defendant. Commonwealth v. prejudice avoid (2001). Appellant provides Pa. 780 A.2d of the nine Even as these only affidavits five witnesses. five, proposed testimony fails to their demonstrate *29 necessary prejudice. to avoid
These
conflicting
witnesses offered
versions of events
cases,
which,
many
in
were also
with
inconsistent
the wit
individual
prior
testimony.
nesses’
Three
witnesses—
Johnson, Craig
Arthur
and
in
Henry
Miles Gabler—aver
Hill,
that it
affidavits
who killed
appellant,
Chapman.
present
vastly
But
claims
the
these inmates are
different
at appellant’s
from their
first
trial.11
testimony
Appellant
knew,
known,
allege
does not
that counsel
have
should
contradictory
the new and
accounts of
In
the witnesses.
directly
addition
the fact that
versions
new
would be
trial,
with
impeached
testimony
from the first
each witness
his
impeachable
significant
with
criminal
and
history
credibility—factors
questionable
exploited
Commonwealth
securing
at
conviction
the first trial.
Given
outcome
trial,
first
testimony
of these three witnesses cannot
be
rationally
necessary
prejudice
characterized
to avoid
affidavit,
In Johnson’s
he avers that when Hill arrived at SCI-
Huntingdon,
Chapman
Bryant
he
up
“he told me
had
set
killed
and
testimony
appellant's
it.”
such
Johnson offered no
at
first trial. Rath-
that,
er, Johnson testified
while he and Hill
were
RHU at SCI
Huntingdon, Hill
that
stated
authorities had
him
transferred
from SCI
Pittsburgh
placed
testily against
him in RHU because he refused to
appellant.
Henry’s affidavit
that "he
claims
overheard a conversation between
couple
talking
setting Bryant
Hill and
other inmates. Hill was
about
that,
around,
up
further
for a murder.” He
claims
“When I turned
I
pulling
showing
saw Hill
a shank out of
coat
it to other
But,
trial,
that,
Henry
only
at the first
night
inmates.”
testified
murder,
"piece
before the
observed a
of steel” in Hill's coat as Hill
some
gym.
sat with
fellow inmates in the
He could not describe it in
that
detail and maintained
it remained in Hill's coat. On cross-
examination, Henry
conceded that he did not inform
of this
potentially exculpatory information until two weeks before trial—more
4/9/86,
years
than two
after the murder. N.T.
at 354.
Gabler's affidavit
that
states
confessed to me that he
"[Hill]
had killed
Chapman
SCI-Pittsburgh,
someone named
but someone else was
it,
going
Bryant,” though
take the
fall for
he failed to mention this at
There,
only
trial.
first
Gabler testified
told me
"[Hill]
he was
get
going
jail
testifying
against [appellant].
they
out of
He said
help
get
jail,
[appellant]
would
murder,
him
out
didn't commit the
saying
but he was
he did.” Id. at
Two additional George Brown and Albert Byrd—neither of whom at testified the first trial—also claim in Hill, affidavits that it was not appellant, who killed Chap man. Neither Indeed, inmate saw the killing.12 Brown does not claim to any first-hand, have personal that Hill knowledge Further, committed the murder. Brown’s claim that he saw Hill dispose of something the trash is cumulative of other and, testimony indeed, is Hill’s consistent with own testimony that he disposed of the murder weapon. affidavit,
Byrd’s which claims that he was with appellant at murder, the time of the by appellant’s undermined previous offer of proof at trial. During pre-trial conference, while appellant was acting counsel, as his own appellant stated that Byrd would testify that only John Bradley, a Commonwealth witness, like, “made a statement he should get [appellant] they because locked me up doing something to his friend ” which was Abe Chapman. 3/25/87, N.T. at 82. Appellant presented the following statement from Byrd:
To I, whom it may concern: Albert D. Byrd, do admit the following statement is true and exact to the best of my knowledge. one, Number I know John Bradley. Number two, John Bradley made a statement to me concerning an Greer, 12. Brown’s hands, affidavit states that he saw with blood on his stumbling away crime; from the scene of the "putting that he saw Hill something bins”; in one of the prison trash that initially authorities suspected murder; and, that he was the “lookout” for the that ”[m]ost guys of us knew Chapman that Hill disputed killed drug over a deal Chapman because going Hill drugs.” cut off from the Brown allege does not the basis for knowledge. that Brown further claims that investigators only were interested in stories that corroborated their theory appellant that guilty, they any-' that "never asked me thing about Hill.” Byrd's affidavit appellant claims that he was with at the time of the clearly murder: "I [appellant] remember that long and I had a conver- morning sation that talking and we were when the commotion started about the Chapman.... murder of right away I knew that Hill was responsible Chapman's Byrd murder.” say likewise did not how he “knew” Hill was the killer. early during involved SCIP [appellant]
incident .... D. May, Byrd Albert part Respectfully, would suggested Byrd Id. Appellant at 81-82. never murder, with at the time testify he was nor Hill the murder. Byrd implicate did he state that would have Nor now that counsel should suggest does alibi, than to the Byrd testify would rather known that motive of a Commonwealth witness. corrupt should have next that trial counsel
Appellant asserts Harris, Johnston, testimony of Andre presented the Bruce *31 sub not George Appellant Graves and Brooks. does Bennie witnesses, upon mit but instead relies affidavits from these trial, that first testimony appellant’s suggests their at trial. at the they impeached testimony could have Hill’s second prom- that had said that authorities Johnston testified Hill against appellant. if ised him favorable treatment he testified convicted on that he was Johnston conceded cross-examination him killing potential against of six homicides for six witnesses and that he had separate burglary charge, with a connection a N.T. killing with inmate. recently charged been fellow 4/9/86, at 444-45. that Hill him whether he knew
Harris testified asked on buy he could a shank.” Harris conceded “somewhere two prison that been at the for only he had cross-examination yet at of Hill’s maintained alleged request, weeks the time also “weapons that a man.” Harris reputation he had about that had not told or authorities admitted he years almost two alleged request weapon Hill’s a until friend, his had accused after whom he said was been appellant, murder. Id. at 323. that Hill claimed have had a sexual Graves testified to him” discov- with and would “fix after relationship Chapman, in a with Chapman relationship that was ering involved sexual cross-examination, explain could not else. On Graves someone Hill, why time who was a friend only this was the that Moreover, his, homosexuality had his with Graves. discussed to had Hill’s he that he revealed statement conceded never con- Further, that he had been Graves admitted authorities. falsehood. involving various crimes victed for that, thief, not a “I’m a but first trial claimed at the Brooks that had told him he liar,” that Hill id. at and maintained to this information He too failed share Chapman. had killed authorities, “duty” that it was but maintained with is framed another being of an “who testify on behalf inmate owes pathetic—he blatant it’s whose character so prisoner liar.” up. He homosexual. He’s everybody. locks He’s Id. at 398. no as to whether these witnesses
Appellant proffer made trial, at testify appellant’s and able to second willing were if they to their Even much would stick stories. they less with consistently their earlier willing testify did so were trial, say first we cannot given the result testimony, obliged again. to call counsel was them his claim that trial prevail cannot Accordingly, appellant present witnesses. failing these ineffective which often proffered testimony, nature Given the as nec- cannot characterized contradictory, testimony their be A.2d at essary appellant. Begley, to avoid prejudice claim, In ninth trial counsel argues *32 failing object progres to to trial court’s was ineffective the jurors to consider the most charge, sion which instructed any on to charge moving serious of criminal homicide before jury this kind of charges. Appellant lesser contends “presents process by suppos a serious due issue” instruction jurors opposed convicting who a edly coercing might be voting into for conviction before lesser offenses higher charge In the Commonwealth response, can be considered. even provided it argues charge that the because the proper a within consider jury logically with framework which to the of PCRA of the homicide. The degrees different elements charge proper. court concluded that the trial court’s that progression The has determined Superior Court in homicide cases. Commonwealth v. charges proper are 158
duPont,
denied,
Appellant’s tenth and allege eleventh claims that was provided complete “a trial Appellant record.” avers PCRA court required should have production following copies documents: pre-trial motions and answers trials, filed at first and second and the notes testimony from proceedings in which trial court considered those motions; “copy of all discovery provided materials to trial counsel”; history the criminal records of wit- Commonwealth Hill, Ezzo nesses “a Bradley; copy of all exhibits entered into during evidence trial or penalty phase” and crime-scene photographs; copy of the verdict jury sheets for the guilt phases trial; and penalty of testimony *33 1, (1976); 91, Ogden, 396 Mich. 238 6 Or.App. N.W.2d State v. 35 580 (1978). P.2d 1049 court so obliged. Appellant were claims that he needs these to search for possible documents additional trial errors.
The Commonwealth that appellant counters has failed establish the requisite “good cause” for post-conviction discov- Also, ery. the Commonwealth avers that appellant failed provide proof any his pleadings as to the existence records, relevant other than those at trial al- revealed ready Further, available. the Commonwealth asserts many of the requested items not in Attorney’s are the District possession, or are available from other sources. Com- The monwealth further notes that the photographs crime-scene are Pennsylvania possession. State Police’s It maintains that appellant there, should have directed its request rather than expecting District Attorney to obtain the documents “as a paralegal behalf.” at Appellee, Brief
The PCRA court opinion that appellant concludes failed to establish the requisite “good for discovery cause” 1502(E)(2) (now-Rule 902(E)(2)). under Pa.R.Crim.P. We agree. We review the denial of discovery request in post- conviction proceedings an discretion. See Com abuse Chambers, monwealth v. 3, (2002). Pa. A.2d 902(E)(2) Rule of that, Criminal Procedure provides in a first PCRA petition case, counseled in a penalty death “no discov ery permitted shall be any stage the proceedings, except upon of court leave after a showing of good cause.” Pa. 902(E)(2). showing “[A] of good cause requires R.Crim.P. just generic more than for potentially demand exculpatory ” Chambers, 889; evidence.... 807 A.2d at see also Common Abu-Jamal, wealth v. Pa. 720 A.2d 91-92 n. 15 & (1998) (“wholesale discovery of whatever information [petition er] to exist ‘believed’ of entire files so that could and/or discern whether his assertions were true” permitted exceeds discovery). Appellant makes no effort good to show cause and, indeed, 902(E)(2). fails even to Rather, cite Rule appel lant merely speculates errors, as to possible trial court evidence, potentially exculpatory that may be if discovered post-conviction has opportunity review “the *34 and and unfocused documents” materials. Such
requested 902(E)(2)’s satisfy cannot speculation unsubstantiated Rule cause” “good requirement. materials,
Moreover, to why fails certain explain jury and testimony “pre-trial notes of from selection including by appeal had not proceedings” requested been trial/direct time, to bald at other than offer the appropriate counsel the to do so. failing that trial was ineffective assertion counsel may again obliquely speculates that there Although appellant errors, any identify trial he does not as-of-yet-undiscovered be made, could have appeal claim that counsel specific trial/direct made, cannot upon should have based the notes. Counsel v. Edmi- in a vacuum. See Commonwealth be held ineffective (Pa.2004). ston, to the A.2d has failed rebut Appellant was in this regard. that counsel effective presumption dismayed, by appellant’s and not a puzzled, We are little documents, and his allegation missing by that he is certain obliged produce suggestion the Commonwealth are, him, them for as our review that those documents reveals fact, brief example, in the For avers appellant’s record. denied, of mo- repeatedly requested, copies that he quash tions to dismiss to Rule 1100 and pursuant motions, as jeopardy, pre-trial well other ground double trial. documents are appellant’s that were filed at first These find Although copies pre- in the we unable to record. are trial, is no trial at second this doubt appellant’s motions filed “re- by merely orally fact that trial counsel explained trial, explained the motions from the first which he newed” At the supporting “in the with briefs. already were record” pre-trial trial' proceedings, argued, second motions, record—previously argued trial court denied—on motions to dismiss to Rule including pursuant renewed ground jeopardy. pre- and to on the double Other quash again first trial and trial motions that counsel raised which argued at the second trial—but does for trial mention a motion specifically brief—include jury petition and a death prohibit qualification bifurcated 3/23/87, too are in the N.T. at 1-50.14 These jury. See review other briefs. Our reveals supporting with record also in documents, verdict are jury slips such as requested Court, court duty this or of the PCRA It not the record. is matter, sort of shot through irresponsible, to sift here, already what that was made see gun request if is not. most not all items and what Since available for failing counsel blame the Commonwealth which record, appellant’s in the in fact available to deliver are *35 claim fails. discovery/due process also the assertion that forwards related
Appellant
to
“the
duty
had a
disclose
materials
Commonwealth
the
83, 83
Brady Maryland,
v.
373 U.S.
S.Ct.
requested” under
(1963).
1194,
Brady,
Supreme
In
10
215
the U.S.
L.Ed.2d
by the
of evi
prosecution
held that “the suppression
Court
an
violates due
upon request
accused
dence favorable
guilt
or to
the evidence is material either
process where
faith prosecu
faith or bad
irrespective
good
punishment,
87,
For a
to establish a
tion.” Id. at
whether this Accordingly, purely spec- fails. ulative claim
Appellant also argues the cumulative effect of the him errors herein a alleged denied fair trial. “[N]o number may collectively they failed claims attain if merit could not do Williams, individually.” 265, so Commonwealth v. 532 Pa. (1992). A.2d we Because have determined that there relief, no warranting appellant’s allegation were errors (cid:127) error fails. cumulative
Finally, appellant alleges cursory a manner that court holding hearing PCRA erred a on certain of A arguments. may PCRA court deny petition without a if, hearing following a review it petition, determines a 1509(C)(1) hearing would serve no purpose. Pa.R.Crim.P. (now 909(C)(1)). codified as Rule Because we have deter appellant’s meritless, mined that claims are either waived the PCRA court did not abuse its discretion denying petition first holding hearing. without Common Thomas, (2000). wealth v. Pa. A.2d reasons, For forgoing we affirm the order the PCRA court.
Justice SAYLOR files a dissenting opinion.
Justice SAYLOR.
DISSENTING OPINION I with agree majority that a criminal defendant charged with the consequences a knowing, voluntary, and intelligent waiver of at сounsel trial. majority appears The to consequences frame these categorically, Majority Opinion, see 146-47, (“Because at op. A.2d at 741-43 appellant waived to right counsel and asserted his right self-representa- to tion, ... will any not we consider claims ineffectiveness period arise from the of self-representation.”), without any express consideration of line of in Appellant’s cases cited holding brief that a part failure on the of standby counsel adequately perform assigned by role to him a limited trial court can errors implicate of constitutional dimension. See Brief of at 18-19 n. 14.1 Appellant Appellant & Since has terms, at one of his in such see presented least issues Brief of 54, I Appellant believe that the Court expressly should in question light address the of the relevant arguments and authorities. On review with the the record and relevant mind, in principles in I to join majority’s end am able ultimate of this disposition claim.
I also differ with the majority’s approach Appellant’s witnesses, claim of ineffectiveness the failure to call Ias believe that Appellant should have been an afforded evidentia- ry hearing. Pennsylvania Criminal Rule Procedure 909 an requires evidentiary said, hearing, unless it can be inter alia, no genuine there are issues of material fact 909(b). dispute. See Pa.R.Crim.P. has Appellant alleged ineffective assistance counsel to present failure trial, witnesses at and has submitted an evidentiary proffer which, which includes affidavits from if five witnesses credited finder, fact by would implicate another individual as the Therefore, 909(b), killer. under I Rule believe that a hearing Williams, was warranted. Accord Commonwealth v. 557 Pa. 207, 231-33, (1999) 1167, 732 A.2d 1180-81 (remanding post-conviction court hold a an hearing make indepen- credibility dent determination as to recantation testimony). The out a majority lays fairly compelling to support case its proposition proffered that the affidavits simply are credi- therefore, and, ble an evidentiary hearing is not necessary. determination, however, This is made from the van- appellate Bloom, 669, People See also v. Cal.Rptr. Cal.3d 774 P.2d (1989) ("To prevail acting on a claim that counsel in an assistance, advisory capacity or other limited has rendered ineffective self-represented perform defendant must show counsel failed to competently scope assigned within the limited of the duties to or ” omitted)); (emphasis assumed .... see also Ali v. United States, *37 (D.C.Cir.1990) (same); Downey People, A.2d 379-80 v. 1200, (Colo.2001) (same); Thomas, 671, 25 P.3d State v. 331 N.C. 473, (1992) (same); 417 S.E.2d Poulin, Anne Bowen The Role of Twilight Standby Counsel in Criminal Cases: In Zone of Criminal (2000). 75 N.Y.U. L.Rev. 725-735 System, Justice instance, record, cold without the benefit
tage in first on a majority fact does the from a finder. Nor any input will not concerning it will and general rule when articulate evidentiary claim on an summary of a based permit disposition believed, reliability of the that, if undermine the proffer would that if the The thus to be appears verdict and sentence. rule this four members of court believes that least pleas common say do not believe the eviden- ultimately they Court will tiary necessary. then no proffer, hearing to the
My give is that the Court would better effect position essential regularity and fairness that are values more consistent function closer and judicial by requiring procedures designed have been adherence convictions, particularly reliability criminal ensure arena, is at its reliability where need for capital evidentiary I for an greatest. Accordingly, would remand finding making at appropriate fact and decision hearing regarding Appellant’s proffer. pleas the common level
855A.2d DEPARTMENT OF PUBLIC WELFARE Hospital, Appellees, v. Clarks State Summit SCHULTZ, Individually and Executrix of the Lena Schultz, Deceased, Appellant. Estate of Steven Supreme Pennsylvania. Court of
Argued April 2004. Aug. Decided notes previously prior of evidence unsuccessfully appealed the trial court’s admission review, (II), then, successfully post-conviction in Buehl on crimes and regard- cautionary instructions to issue the trial court’s failure appealed authority only are ”[c]ases axiomatic that ing evidence. It is 18, MacMillan, Taylor, v. 304 Pa. Inc. they Hill & questions decide.” (II) (1931). previous never discussed The Buehl Court 155 A. argument Accordingly, fails. this litigation of the issue. Arizona, L.Ed.2d 694 S.Ct. 384 U.S. v. 8. Miranda (1966). in a post-verdict trial, motion. At Trooper and/or Knaus testified regarding invеstigation murder, of Chapman’s noted that appellant had signed form, of rights” “waiver gave brief statement and then refused to cooperate further: Q. ... [appellant] [Prosecution:] did give you type some statement as to his involvement in the death of Mr. Chapman? gave He me a A. short statement and then [Knaus:] quit. elected to Now, Q. you before him, conducted this interview with did you go through any procedure with him? A. Yes. Normal procedure is a waiver of rights “Your Rights” form time, which is basically a place, my name, witnesses and all his rights. All Q. right. What was it that [appellant] you told regard to— A. [Appellant] explained to me that Abe Chapman was a his; friend of that he knows that Mr. Chapman on at least two him; occasions snitched on and he didn’t' particularly like that. That day incident, up another cell to an talking inmate named particular Smith and point cancelled the interview and said he would see inus court.
Notes
notes from proceedings involving post all verdict motions and sentencing; and, copies all pleadings filed party during either It appeal. direct is difficult to from appellant’s determine approach scattershot who obliged he believes is to secure him, these items He why. appears argue that the duty; however, Commonwealth has the his PCRA petition, Commonwealth, suggested that the trial counsel and the trial Appellant authority jurisdictions cites disapproves from other which jury requiring acquittal instructions unanimous conviction on a higher Hurst, considering People offense before lesser See v. offenses.