*1
Submitted 1998. Jan.
Decided 1999. Reargument May 7, Denied *5 Dunham, Philadelphia, Carpenter. for J. Robert Brett Graci, A. York, Com. Robert Kelley, Thomas H. Atty. for Office of Gen. Harrisburg, ZAPPALA, CAPPY, FLAHERTY, C.J., Before SAYLOR, CASTILLE, NIGRO, JJ. NEWMAN OPINION NEWMAN, Justice. Henry
James Carpenter (Appellant) appeals from or- (PCRA ders the Court of Common Pleas York County *6 court) that denied petition his for relief under the Post Convic- tion Relief Act.
I. FACTUAL AND PROCEDURAL HISTORY Evidence adduced at trial revealed on 30, 1983, (victim) September Jimmie Taylor Lee was stabbed in the heart on South Penn in Street the of City York. He pronounced was dead York Hospital at at 10:58 p.m. that evening. The victim was found to have had a blood alcohol content of .356 percent.
The principal Commonwealth’s witness at trial was Appel- (Ms. Emmil). girlfriend, lant’s Ruth Helen Emmil Appellant victim, the who knew had harassed and threatened Ms. Emmil occasions, on several and he had spoken with the victim in an unsuccessful him attempt get stop harassing Ms. Emmil. victim, In May of the apparent without hit provocation, Appellant hatchet, face with a knocking the him unconscious jaw. and his fracturing
Ms. Emmil night September testified that the of 1983, she were Appellant drinking and in a together bar. bar, left They for another and were South Penn walking on Street about 9:30 when victim p.m. the crossed the street Emmil, of and carrying six-pack Appellant, beer asked Ms. if couple and another some anyone wanted beer. approached At this time the victim the and Ms. group that, shit,” the Emmil stated “I there don’t be no when hope altercation, an went on ahead to couple, fearing other then, Emmil, according second bar. It was Ms. and, pocket provoca- took a knife from his without Appellant tion, stabbed the victim in the chest. The four-inch blade sternum, knife the victim’s pierced through severed top his and him. heart killed with a handker- from the knife wiped the blood
Appellant over knife, handkerchief chief, and tossed it closed (The nearby of a house. owner yard into the back fence York, the knife found house, attorney City for the following morning.) garden in his tomato and handkerchief at the couple Emmil then met the other and Ms. Appellant bar, had some drinks. planned, as the police Emmil did not tell Ms. questioned, first
When did tell stabbing, eventually she knew about but what she Emmil victim. Ms. had stabbed them threatened that, stabbing, Appellant trial after the testified at To had add anyone happened. if what to kill her she told threats, her that he had killed his told credibility testified at Another witness ex-girlfriend. offered him 1983, that had July to kill the victim. $500.00 Ms. Emmil who testimony,
According Appellant’s *7 wiped then the provocation without and the victim had stabbed objects over the and threw the knife with a handkerchief to police did the because go fence. said he Appellant his He further stated protect girlfriend. wanted to a to a knife purchase he asked friend stabbing, after to the police to one used Ms. Emmil confuse similar sure, who, stabbing would him of the suspect he was animosity of his known toward victim. stabbing, Ms. Emmil’s jury
The believed version of degree of murder the first on guilty returned a verdict Code, a 20, Sentencing to sen- January 1984. Pursuant immediately conducted before the same tencing hearing was circumstance, that jury aggravating found one jury.1 The convictions in- felony had “a significant history Appellant (42 person,”2 or to the volving the use threat of violence 9711(d)(9)), § aggravating circumstance Pa.C.S. that the 9711(a). § 1. 42 Pa.C.S. history Appellant’s for criminal included a conviction murder degree girlfriend felony prior third of a and another conviction for by prisoner. assault a
442
outweighed any mitigating circumstance. jury, therefore, The sentenced Appellant to death. 9711(c)(1)(iv). § 42 Pa.C.S. post-trial motions, filed which the Court of Com- mon Pleas of York County denied, and he was formally on 25, sentenced June 1984. This Court his affirmed convic- tion judgment of sentence of 25,1986, death September Commonwealth v. Carpenter, 429, (1986), Pa. A.2d and we remanded the matter back to the Court of Common Pleas of York for County appointment of new counsel represent Appellant in post-conviction proceedings.
New counsel was appointed and the PCRA court held a
hearing
allegations
on thirteen
of trial counsel’s ineffective-
ness.
court
The
found that all of these allegations had no
foundation and
denied
relief. On
appeal
this
Court, Appellant
renewed twelve of
allegations
counsel’s
We
ineffectiveness.
also found these
claims
be
and,
19, 1992,
without merit
on November
affirmed the order
denying Appellant PCRA relief. Commonwealth v. Carpen-
ter,
(1992).
Pa.
On while first PCRA appeal was still Court, in this pending petition filed for writ of corpus habeas in the United States District for Court Pennsylvania. Middle District of The stayed District Court corpus disposition habeas action pending of the PCRA appeal. When Court issued a decision on November 1992, denying Appellant’s appeal, the District lifted Court stay and permitted Appellant’s counsel withdraw. New counsel was who filed appointed petition an amended corpus granted discovery. habeas and was leave conduct an opinion The District Court issued regarding *8 Carpenter Vaughn, v. 28, petition habeas on November 1994. (M.D.Pa.1994). opinion, the the Court F.Supp. In (twenty-three twenty-four presented reviewed the issues of ineffectiveness) trial dismissed argued which counsel’s and for not ordered twenty-two having claims merit. The Court Later, remaining two briefing further on the issues. on 8, 1995, the directed on addition- February briefing Court one al issue. on three Appellant’s its decision issued District Court
The 30, 1995, petition denied his May and claims on remaining Vaughn, 888 F.Supp. Carpenter corpus. a of habeas writ to the Third Circuit (M.D.Pa.1995). appealed Appellant pro- ordered hold federal which Court Appeals, of Court aof second pending disposition the abeyance ceedings of York Pleas in the Court Common filed petition PCRA (the 11,1996 of which is before this appeal January on County today). Court above, Conviction filed his second Post
As stated 11, 1996, in which raised January on petition Act Relief 1997, court the PCRA January issues. On seventeen the claims raised dismissed, sixteen of hearing, without a (The forty-eight- court also entered a PCRA petition. claims.) to dismiss the its decision opinion explaining page on hearing held court directed that be The PCRA claim, Commonwealth know- remaining allegation presented and exculpatory knowingly evidence ingly withheld testimony. false At claim on March 1997. hearing
A was held this court found that the Common- hearing’s conclusion PCRA exculpatory had withheld evidence and knowingly wealth its han- testimony through false knowingly presented had not witness, Ms. Emmil. Commonwealth dling primary dismissal of appealed ruling, has now claims, to this Court. his other sixteen
II. ISSUES degree from his first 1. Is the entitled relief they and death sentence because were murder conviction witness, Emmil, Ms. whom the testimony based on the unreliable; provided below found because court witness; respect to this ineffective assistance with regarding of misconduct witness? investigate, trial counsel ineffective for Was
develop present mitigating evidence de- *9 prived neglected childhood, illness, mental cognitive defects and positive history work and social relationships? 3. Was trial counsel ineffective in his closing argument during penalty phase?
4. Does after-discovered evidence entitle to re- from sentence, lief his conviction and and was trial counsel failing ineffective for to call who witness would have provided exculpatory this evidence?
5. Did incorrectly the trial court charge jury on “du- explain ress” and fail to concept of “substantial domina- tion,” and was trial counsel ineffective for failing object to to these errors?
6. Did the improperly rely on Appellant’s conviction for by prisoner assault as an aggravating circum- obtained, stance when that conviction was unconstitutionally prior and were failing counsel ineffective for to litigate claim?
7. Was for to object trial counsel ineffective to the failing testimony of Parole Officer Jefferies when said that he “thought” Appellant might revenge seek Mr. against Taylor?
8. Were statements of Emmil in Ms. introduced at trial of law of prohibiting hearsay violation state the use Appellant’s right violation of confront the witnesses him? against Did court it jury
9. the trial err when failed to instruct imprisonment possibility life means life without Appellant’s dangerousness put after future parole, issue? his
10. Is entitled to relief from sentence jury sentencing phase because the instructions and death be unanimous improperly required jury sheet verdict .mitigating effect to evidence? give before could object failing ineffective for 11. Was trial each the above-cited errors? attorney ineffective appeal
12. 'Was direct herein, claims contained and is Appellant raise the appellate rights to restoration entitled simultaneously employed Attorney County District York counsel? appellate sentencing inaccurate jury give trial court Did the
information? *10 with of the trial court communication parte
14. Did ex process to due right Appellant’s violate the Commonwealth of his review adequate appellate him of and deprive of law and sentence? conviction because sentence be vacated death Appellant’s
15. Should that is uncon- circumstance aggravating based on an was stitutionally vague? testimony of from the notes
16. Were accurate, him of depriving not full and sentencing capital review? meaningful appellate from his conviction entitled to relief 17. Is errors described herein? of the cumulative sentence hearing? evidentiary entitled to an 18. Was III. DISCUSSION A. BACKGROUND denying review of an order This standard of Court’s examining whether is limited to post-conviction relief of the PCRA the determination supports evidence of record Com legal free from error. ruling court and whether the (1997). 516, Morales, 400, A.2d 520 549 Pa. monwealth v. must petitioner relief a eligible To be for PCRA or resulted from one that his conviction or sentence establish in 42 Pa.C.S. errors or defects listed more of the enumerated 9543(a)(2)3 § issues that he raises have been and that the 9543(a)(2), § filed his PCRA in effect at the time Pa.C.S. Petition, provided: following: the conviction or sentence resulted from on of
That
(i)
Pennsylvania or laws of this
A violation of the Constitution of
which,
of the United States
in
Commonwealth or the Constitution
case,
particular
so undermined the truth-deter-
circumstances of the
previously litigated. Commonwealth v. Crawley,
408,
(1995).
663 A.2d
An issue has been previously
if
litigated
highest
appellate court which
petitioner
could have had review has ruled on the merits of the issue or
the issue has been raised and
decided
a proceeding collater
Id.,
ally attacking
the conviction or sentence.
42 Pa.C.S.
9544(a)(2),(3).
§
If an
has not
issue
been previously litigated,
the petitioner
prove
must
then
the issue has not been
waived,
waived,
if
or
pursuant
conditions
to 42
met.4, 5
9543(a)(3)(h)
(iii)
§
Pa.C.S.
or
been
have
mining process
adjudication
guilt
that no reliable
or innocence
place.
could have taken
(ii)
which,
Ineffective assistance of counsel
in the circumstances of
case,
particular
truth-determining process
so undermined the
adjudication
guilt
no reliable
place.
or innocence could have taken
(iii)
unlawfully
plea
guilty
A
induced where the circumstances
likely
plead
make it
that the inducement caused an individual to
guilty.
(iv)
improper
The
obstruction
of the
officials
petitioner’s right
appeal
appealable
where a meritorious
issue
properly preserved
existed
in the trial court.
Constitution,
(v)
provisions
A violation of the
law or treaties of
*11
require
granting
the United States which would
of Federal habeas
corpus
(vi)
prisoner.
relief to a State
unavailability
exculpatory
The
at the time of trial of
evidence that
subsequently
has
become available and that would have affected the
outcome of the trial if it had been introduced.
(vii)
greater
imposition
The
of a sentence
than the lawful maximum.
(viii)
jurisdiction.
proceeding
A
in a tribunal without
9543(a)(3),
petition,
effect at the time
filed his
Section
provided:
allegation
previously litigated
one of
That the
of error has not been
following applies:
(i)
allegation
The
of error has not been waived.
waived,
(ii)
allegation
alleged
error has
If the
of error has been
in the conviction or affirmance of sentence of an innocent
resulted
individual.
waived,
(iii)
allegation
the waiver of the
If the
of error has been
proceed-
during
post-trial
appeal
or direct
allegation
pretrial,
or error
barring
procedural
Federal
a State
default
ings does not constitute
corpus
habeas
relief.
longer apply the "relaxed
recently
we would no
held that
5. This Court
capital
post-conviction proceedings in
appeals
waiver” rule in
from
Albrecht,
31,
(1998).
It is with these begin with a discussion allegations. We Appellant’s PCRA represen- counsel’s prior that include a claim that those issues tation was ineffective. OF COUNSEL INEFFECTIVENESS
B. CLAIMS OF Misconduct I. Unreliable Witness/Prosecutorial He claims entitle- first claim is multifaceted. was based the testimo- to relief because conviction ment witness, trial counsel was ineffective unreliable ny of an witness, and that the Commonwealth respect with to this with to this witness. respect committed misconduct Emmil, Appellant’s girlfriend, The witness at issue Ms. Taylor. saw him stab James who testified at trial she time investigators that Ms. Emmil told at the claims altercation there was an original investigation Taylor, supporting a claim between and James commit- the Commonwealth self-defense. He also claims that *12 testimony respect misconduct with to Ms. Emmil’s ted her to allegation permitted of self-defense and knew her further claims premeditated. offense was He testify the (and petition governed by pre-1995 version of the apply PCRA PCRA), appellant properly or when the raises claims of counsel’s ineffectiveness. provided ineffective assistance with respect this witness.
The PCRA court a held on the hearing claim that knowingly Commonwealth withheld exculpatory evidence and knowingly presented testimony false on March 1997. Ms. testified, Emmil as did Dennis Williams and William Small- wood, present two or former York County detectives who had investigated the Taylor prepared murder and the affidavit of probable cause to arrest the Appellant. hearing After all of witnesses, the Court made following decision:
In findings reference our factual reference had, hearing just that we we heard testimony Appel- from [sic], lant Helen Emel and from her testimony it was obvious to the Court that reference to her credibility she essentially any question was unable to answer that was not leading question, just responding essentially to the facts that defense counsel would into his put questions her. directly, you police,
When she was asked what did tell the was, I permit her don’t remember. We did her to response affidavit, have her recollection refreshed from her but we by testimony would note that the affidavit her was not by essentially by written her but was written the defense used in the affidavit is investigator, language totally any with Mrs. Emel speech patterns [sic]. inconsistent finding essentially make a of fact that Mrs. Emel [sic] We stand, on the and we did not find easily was an led witness her to indicate that testimony from any persuasive or exculpatory withheld evidence knowingly Commonwealth testimony false knowingly presented the Commonwealth of her. through handling Detective Williams and heard from Detective
We also that Miss Emel Smallwood, essentially indicated both who a situation of self- that this was informed them never [sic] and, of fact the defense, we find as matter accordingly, exculpatory withhold evi- knowingly did not testimony false knowingly present did not dence and
449 witness handling primary of the its through Miss Emel [sic]. 3/18/97, 54-55. pp.
N.T. basis absolutely upon with no us presented has Appellant PCRA findings of the any of the factual disagree with which court, to do so. and we decline regard- Appellant’s arguments with problem
An additional at trial was fact that his defense claims is the ing these Emmil who it was Ms. self-defense, instead the claim that but provocation. without Taylor had stabbed James victim, and stand, that he had stabbed denied took the in Ms. Emmil’s hands. crime solely knife and the placed assistance on his claim of ineffective To obtain relief (1) is that there counsel, is to establish required (2) claim, no reason that counsel had underlying merit to the (3) conduct, and that there course of for his or her able basis that, for the act or omission but probability is a reasonable been would have proceeding outcome of the challenged, the 175, Jones, 161, 683 A.2d Pa. 546 different. Commonwealth (1996). and the 1181, effective presumed Counsel 1188 Common otherwise. proving has the burden (1993). Marshall, 488, A.2d 1100 Addi 633 wealth v. failing ineffective for cannot be considered tionally, counsel v. Peter is without merit. Commonwealth raise a claim that denied, 455, (1994), 515 kin, 121 cert. U.S. Pa. 649 A.2d (1995). Pursuant to the 132 L.Ed.2d 115 S.Ct. only when it PCRA, provides claim relief an ineffectiveness that no reliable determining process the truth “so undermined place.” or innocence could have taken adjudication guilt 9543(a)(2)(ii). § Pa.C.S. was ineffective with re
The claim that counsel of Ms. Emmil does not meet the first gard questioning to his claim) (that or the underlying there is merit to the prong test, because prong three-part second ineffectiveness of con clearly had a reasonable basis for his course non-involvement). (the duct of total Ac Appellant’s defense is not on this claim. cordingly, entitled relief
2. Mitigating Evidence Next, Appellant claims that trial counsel was ineffective for investigate, develop, present mitigating evidence childhood, illness, of his traumatic cognitive mental deficits positive history work and social relationships. Appellant claims had trial counsel adequately prepared for the capital sentencing hearing, presented powerful he could have *14 mitigating evidence in these categories.
We first note that counsel’s failure to present
evidence,
more,
without
is' not
se
mitigation
per
ineffective
554,
assistance of counsel.
v.
Beasley,
Commonwealth
(1996).
566,
773,
Additionally,
A.2d
778
for
eligible
be
must
petitioner
relief under the PCRA the
establish
not
v.
previously litigated.
issue has
been
matter,
In
has
Crawley, supra.
already
the instant
claim that trial counsel failed to present
had review of his
mitigating
Carpenter,
evidence. See Commonwealth
(1992),
Court,
40,
affirming
in which this
Pa.
Since litigated, been already evidence has mitigation to present on this claim. to PCRA relief is not entitled Argument Closing Phase Penalty 3. Trial Counsel’s a presented that trial counsel argues next him in several that harmed weak, argument closing sparse complained him. The including racially disparaging ways follows: reads as closing argument counsel’s portion of I think should find he lived in a different kind of you than we do. 1 don’t think should be community penal- what go ized because he does entertainment out on marijuana. and drink a little Friday night little and have a I will you eighty percent community think find of his does that. African-American,
N.T. at 29. who is Appellant, 1/20/84 abuse, that counsel converted his which argues substance should have been as one of the diverse frailties of seen death, mitigates humankind that against sentence into racially stereotyped community. attribute of his This claim is without merit. hearing
The PCRA court denied a
on this claim. The
PCRA court
language
closing
examined the exact
argument
“community”
and concluded that the
to which coun-
style,
sel referred was one of a social class and life
African-American,
specifically
comprising
but instead
a racial
diversity
cross-section.
It found this
apparent
relationship with Ms. Emmil and
close
others. We do not
disagree with the
determination
the trial court. Additional-
*15
ly,
ineffectiveness;
this issue is
as a
presented
claim
accord-
relief,
ingly, to
Appellant
obtain
must meet certain threshold
standards previously outlined. He has not
that
proved
there
claim,
is merit to the
had
no reasonable basis for
conduct,
his
or
probability
that there is a reasonable
but
act,
for the
different,
the outcome of his trial would have been
Jones,
Therefore,
supra.
Commonwealth v.
Appellant is enti-
Dennis,
tled to no further review. See also
(1998) (trial
4. Evidence After-Discovered Appellant next claims that after-discovered evidence shows that is he innocent the murder of Taylor James
that his trial counsel was ineffective for to call the failing provided exculpatory witness who would have this evidence. at The witness issue is one Frankie Stewart. Attached undated, handwritten, petition PCRA was a affida- Appellant’s vit of as follows: Ms. Stewart read
I, hereby verify Frankie Stewart do declare and as follows: York, I My
1. name is Frankie Stewart and live Taylor I knew Zee and James Car- Pennsylvania. Jimmy penter. drinking I house and I had been my
2. was at mom’s I my I mom’s house and saw just starting lot was to leave Carpenter fall. was not in the immediate Jimmy Zee James Jimmy area when Zee was stabbed. I that the facts set forth herein are hereby certify my personal knowledge, the best of
true and correct I statements and that makes [sic] information and belief to 18 Pa.C.S. subsection 4904. subject above claim, an evidence” Although captioned as “after-discovered his trial is ineffectiveness of actually argues what trial counsel was ineffective He claims that counsel. at trial exculpatory this witness and use investigate immediate area that he was not the evidence with his defense is consistent stabbing occurred when testimony. This Ms. Emmil’s trial and differs from incorrect. that she was with trial, Emmil testified
At Ms. defense was that Taylor. when he stabbed James fact, In took the the victim. Emmil who stabbed it was Ms. matter, he has Throughout testified. and so stand stabbed, Taylor was Mr. present when that he was claimed ineffective- him. To show stabbed Emmil who it was Ms. but have no counsel could ness, must establish A basis reasonable act or omission. for his basis reasonable *16 glar- of Frankie Stewart testimony introducing the not for Appel- have contradicted would testimony her ingly apparent; found ineffec- will not be Accordingly, lant’s defense. v. this witness. See Commonwealth to failing present for tive 453 (counsel (1997) Hardcastle, A.2d 541 Pa. who a witness as alibi witness failing to call for ineffective strategy.) defense have contradicted would to Explain Failure Charge and “Duress” Trial Court’s 5. Domination” “Substantial Concept the of was ineffec- claim, that counsel argues Appellant his next In the of charge duress object to the incorrect tive for argues of trial. He his during penalty phase the trial court the jury, for used court, in “duress” defining phase guilt-innocence for the definition of duress Crime Code’s prevent- error claims that the court’s trial. He further nonexculpatory effect to giving mitigating from jury ed mitigating from effect jury giving prevented duress or under the influence acted possibility However, already claim has Emmil. this of Ms. domination Specifically, no found to have merit. litigated and was been “du- in the claimed error petition, Appellant first his PCRA denied of the trial court. We reviewed ress” instruction of November opinion on this claim in our relief 51-52, 617 Carpenter, 1992. Commonwealth Thus, today. claim deny also A.2d at 1268. we by “Assault 6. Conviction Aggravating Factor Prisoner” as support Appel- by jury factor found aggravating The history of significant death was that he had lant’s sentence involving the use or threat violence. felony convictions 9711(d)(9). § been convicted previously had Pa.C.S. He prisoner.7 assault felony by murder6 and degree third assault guilty plea charge claims that now County Court of Com- prisoner, Montgomery entered 16, 1976, January knowingly Pleas on was not mon was not voluntarily Specifically, he claims entered. call rights (including right witnesses advised certain 2502(c). § 6. 18 Pa.C.S. § 2703. Pa.C.S.
454 behalf)
on his and that trial counsel was ineffective for failing to litigate the validity of this conviction.
The PCRA court denied on Appellant relief claim, concluding that trial counsel was not ineffective for final, failing place prior conviction at issue before the sentencing jury. The PCRA court also noted that whether guilty plea, the in entered a different was county, knowing and voluntary was not properly before it. agree. We alsoWe note that has apparently never attempted chal lenge the voluntariness of in plea the in it court which was Further, it entered. is well established that a “showing of prejudice injustice order manifest is required before withdrawal a guilty plea [of after sentencing] is properly justified.” 346, Shaffer, 342, Commonwealth v. Pa. 498 446 (1982) omitted). A.2d (emphasis citations Final ly, although Appellant claims that he was not advised of rights during certain guilty plea colloquy, he does not claim that his did contain colloquy not the six inquiries man Dilbeck, dated this Court Commonwealth v. (which (1976), A.2d case was two filed months after guilty plea now challenges). Considering the presented,
circumstances we do find that trial counsel was ineffective failing challenge guilty plea Appel that the formally lant himself has involuntary. never as challenged Testimony Parole Officer Jefferies Next, Appellant claims trial counsel was ineffec object testimony tive for to the Parole Officer who met with Appellant Jefferies testified when he shortly jaw, after the victim had broken revenge seek James “thought” might against that Appellant testimony as Taylor. The unfolded follows: to him who done this to him? Q. you Did talk about had Yes, sir, I A. did.
Q. conversation? What him happened. A. I asked him if he—I asked what He he was hit with rear side of an axe handle. said handle? Q. An axe said, it?” I “Who did Street. alley In around Penn
A. an said, “James, why I it. And know who did He said he didn’t togo police it we will who did and you just tell me don’t be supposed way care of the situation and take person, charges against file of. We’ll taken care way.” right do it the we’ll I he would do. thought what I I was afraid of
Because *18 him, afraid,” “I afraid I told was said, I was “Because said, do, I “If you of him” care you’ll go out and take that kill him.” may you you? did he tell
Q. And what him with the axe who hit didn’t know A. He said he handle. as point, at this objected 48. Defense p.
N.T. 1/18/84 do. would thought Appellant said he what Officer Jefferies to and instructed the from the record trial court strack that The Testimony continued: disregard to it. jury who did it? said didn’t know Q. And he he Yes, sir. A. police him to the go to try persuade Did
Q. you matter? him I think about 40 minutes I it with
A. discussed broken, I and was jaw had his I was concerned that he day. IAnd in retaliation. something happen would fearful that him. try say something to did to go police? to the Q. Would No, A. sir. examination, Mr. Jefferies 49. On redirect p.
N.T. 1/18/84 testified: warning him that he shouldn’t
Q. you express Did take this on himself? I Yes, remember
A. I did. At least on two occasions I I making can’t remember the exact words. a statement. what by yourself, do it this is something you said like can’t we have for. police my is, This is what job help you out with the situation.
N.T.
p.
1/18/98
Appellant argues that trial counsel was ineffective for failing
object
to the second and third instances of Mr. Jefferies’
(Mr. Jefferies)
testimony that he
was concerned that Appel-
lant would
against
retaliate
Mr. Taylor. Appellant
claims
opinion
evidence
highly
prejudicial and irrelevant.
note, however,
We
that what he does not do
any
is cite
support
argument,
nor
attempt
does he
to establish that trial
object
counsel’s failure to
was unreasonable. See Common-
(1981) (ineffec-
McIntyre,
wealth v.
8. Hearsay Violation argues hearsay that a Appellant next and Confrontation Clause violation when Lavilla Enriquez occurred witness testi- by fied made Ms. Emmil on the of regarding night statements Ms. had with stabbing. Enriquez the been and Ms. Emmil in killed. drinking night Taylor bars on the James was In from Ms. response question to a the about what prosecutor evening stabbing, Emmil had said to her the of the Ms. Enriquez said Jim in his responded: go pocket “She she seen it something do with knife and clean it off and throw and the p. the N.T. 74. Defense counsel did over fence.” 1/18/84 Later, court, in by to a object. response question go that Ms. Emmil “said she seen James witness testified him. pocket pull in out the knife and stab And then and p. and throw over the fence.” N.T. clean knife 1/18/84
457
hearsay, which
were
that these statements
claims
consistent
“prior
“excited utterance” nor
met neither the
rule,
that his trial
hearsay
to the
and
exception
statement”
admission.
object
to their
was ineffective
hearsay
is an out-of-court
classic
The
definition
the matter asserted.
the truth of
prove
offered to
utterance
(1974).
112,
Coleman,
Pa.
suddenly subject overpowering made occurrence, which that shocking and unexpected some witnessed, in or and person just participated closely had in which phase of that occurrence made reference some be so near the he and this declaration must made perceived, in and the likeli- place occurrence both time as exclude in or in from his having part of its emanated whole hood faculties... reflective 550, 559, v. Pa. 692 A.2d Washington,
Commonwealth (1997), Stokes, quoting (1992). 242, 258, argues that the 615 A.2d evening statements were made later the victim’s death, stabbing at a removed from the bar scene testimony that no was offered at trial that the statements of the incident so as to exclude place were so close time they from Ms. the likelihood that emanated Emmil’s reflective Thus, claims, the statements were inadmissible. faculties. disagreed. opinion dismissing The PCRA court In its court majority Appellant’s allegations, PCRA addressed proper application exception the excited utterance concerning determined while it not clear the amount *20 that elapsed stabbing time between the and the statements by made Ms. Emmil Ms. Enriquez, the fact the statements not immediately stabbing were made after the was 458 dispositive of their admissibility, and the statements could been
have admissible. agree. Hess, We In Commonwealth v. 501, Pa.Super. (1979), A.2d 830 Superior Court affirmed the judgment defendant’s after sentence review- ing, dismissing, and his claim that the trial court committed by error admitting certain pursuant statements to the excited utterance exception to the hearsay rule. The statements were made approximately one-half hour after “unexpected shocking that, occurrence.” The Court although determined incident, statements were not made immediately after that did not necessarily require exclusion, their reiterating occasions, that “[o]n numerous this court had previously ap- proved the admission into evidence such not- declarations withstanding periods interim comparable to or even greater 507, than that in involved case.” Id. present at 411 A.2d Later, Penn, at 834. Commonwealth v. (1982), testimony
A.2d
we held that
by a minister as to a
statement
the child of a murder
made
victim within approx-
imately
admissible,
thirty minutes of his mother’s attack was
stating
fact that the boy’s statement was not made
“[t]he
immediately
stabbing
preclude
after the
does not
its spontane-
Id.
ity.”
at
Because established merit, arguable eighth claim ineffectiveness is of this claim must therefore fail.8
9. means Instruction “Life Life” claim, Appellant argues In his next that he is entitled sentence vacated because the trial court have death means jury prior that “life life” and failed instruct In were ineffective for raise issue. Appellant's of the statements constituted claim that admission simply Ms. separate violation is incorrect because Confrontation Clause trial, testified, present was cross-exam- Emmil by Appellant’s ined counsel.
459 Supreme United States cites to the this claim he support Carolina, 512 U.S. v. in Simmons South decision Court’s (1994), a that when which held 2187, 129 L.Ed.2d 114 S.Ct. issue, he or she has dangerousness is future defendant’s parole ineligibili his or her informed of jury to have the right ty- in was decided in Simmons sentenced 1984. was
Appellant 192, 217, 656 Pa. Christy, v. In Commonwealth 1994. that, Simmons (1995), held Court this A.2d not to be Pennsylvania, in was rule of law a new announced sentences. attack of retroactively to collateral applied that, is not ineffective “counsel Further, went on to state we find, law.” Id. We change predict to a for this claim. therefore, relief on entitled to Slip Jury 10. Instructions Verdict Next, court, in to charge its that the Appellant claims any jury juror sufficiently advise the jury, did not weigh could individually mitigating found a circumstance who aggravating circumstances against circumstance found, unanimity if as to the even there was not unanimously circumstance, prior and that coun- mitigating of that existence by failing litigate to this assistance sel rendered ineffective claim. reviewed, in opinions our previously
This Court has denial of his first PCRA Appellant’s direct and on appeal on found the jury instructions the trial court’s petition, presents error. now instructions be without however, instructions; as theory regarding jury new of relief PCRA, a eligible to be under the previously, stated relief been must that the issue raised has not petitioner establish A Crawley, supra. litigated. previously by advancing PCRA cannot obtain relief under the petitioner litigated alleging and then previously variations of claims presenting for not these prior ineffective assistance claim, supra. This Beasley, theories. See Commonwealth v. it, no those affords relief. like before 11. Trial Counsel’s Ineffectiveness Appellant next proffers general claim that his trial counsel was ineffective for failing object each the above-cited errors. For the previously reasons outlined opinion, is not entitled relief this claim. Appeal Direct Counsel’s Ineffectiveness
In Appellant’s final
claim,
ineffectiveness
he argues
that his direct appeal
attorney
ineffective for failing to
errors,
raise
the above-cited
combined with the fact
*22
that
a
attorney
position
took
with the York County
Attorney’s
District
office
his
during
representation
Appel
of
lant,
him
entitles
to the restoration of his direct appeal rights.
He
alleges
further
that his
appeal
direct
counsel
no prior
had
experience
cases,
with murder
filed a “grossly inadequate”
brief, spent
case,
“shockingly little” time on his
argues
and
that
of
in
counsel’s conflict
interest
accepting
position
a
with
office,
the district attorney’s
and actually beginning employ
ment with the office before this Court’s decision on his direct
decided,
appeal was
“taint
the fundamental
fairness of the
appellate
proceedings.”
entire
review
Appellant’s brief at 81.
court,
claim,
The PCRA
in
on
denying relief
this
made several
findings.
It first
specific
found that
coun
Appellant’s appeal
sel’s representation
adequate.
was
It also refused
find
that
time spent
produced equated
and volume
with
repre
effective
Finally,
significantly,
sentation.
and
it pointed
Appel
out that
lant had offered no
that he
prejudiced by
evidence
had been
(to
in accepting employment
counsel’s actions
be commenced
date)
aat
later
with the district
office.
his
attorney’s
In
brief
Court,
this
Washington,
cites to
v.
Strickland
668, 692,
(1984),
U.S.
104 S.Ct.
L.Ed.2d 674
and
argues
showing
no
of
be
prejudice
need
made
that
presumed
is
under
circumstances.
prejudice
Relief will not be
on this claim. We first note that
granted
Strickland,
in
Supreme
discussing
Court
effective assis-
counsel,
actual conflict
interest
tance
stated
an
adversely affecting
lawyer’s performance
renders assistance
692, 104
ineffective.
Id. at
2052. No actual conflict of
S.Ct.
adversely
performance
interest
affected counsel’s
counsel did
appeal
direct
matter because
the instant
present
had
until he
office
attorney’s
district
work in the
not begin
Court. See Com-
case
Appellant’s
argued
briefed
(1969), in
159,
The answer to that I recommendation. you talk about gentlemen, ladies *23 mean, you. I assume exactly but you don’t know what before, jury a at this you I told as you what remember life of death or making a recommendation point are not I that. imprisonment. hope you understand sentence, and not the the actually fixing folks are You you mark It a Whether Court. is not recommendation. nothing there is death, the sentence and there that’s it. to do on nothing it. The Court has Court can do about nothing is this Court you imprisonment, If mark life there it, about because that decision can do about it or wants do So, hope I entirely you jury. as members of the up is recommendation, a a it is you understand that it is not you fix and bind all of us here to whatever sentence that will very or simply imprison- it’s to have to be death life going absolutely And question parole ment. the irrelevant. I you that. hope understand N.T. at 45-46. Appellant claims that an 1/20/84 accurate response to question would have included an instruction that “life imprisonment” always means life imprisonment with guarantee no parole, and that “because trial court supplied jury with materially inaccurate infor- sentencing mation about the meaning of ‘life imprisonment’, jury mistakenly believed that if it sentenced to life he day would one be eligible for parole.” Appellant’s brief at 38. This argument has been previously litigated, rendering Ap- pellant ineligible for PCRA relief on this claim under § Pa.C.S. 9543. Specifically, this Court rejected reviewed and claim, in Appellant’s contained first PCRA petition, trial counsel was ineffective for object to the trial court’s answer to jury question the above-cited explanation trial court’s misled the into jury believing that if they handed down a life sentence there would a possibility be of parole. See v. Carpenter, 533 Pa. at A.2d at 1269.
2. Ex Parte Communication Next, Appellant requests relief on claim that the ex parte court’s communication with prosecution right violated his to due process law and him of deprived adequate appellate review of his conviction and sentence. He trial, claims in the midst the court indicated that it had parte an Attorney. ex communication with the District The following chambers, communication in occurred with and his attorney present, and concerned the testi- mony of Parole previous Officer Jefferies who had testified the day. Officer had Jefferies testified that he was a parole officer, objection, without and the trial court wished to provide opportunity request cautionary an instruction. testimony, addressing The notes of with the trial court Appel- specifically, lant read as follows:
Now, is a my research there case court appellate remedied, cases that that can be the fact this was *24 officer, out, brought that it was a it can be parole remedied by instructing jury the Court that are not to they you or not are all; the issue of whether that at
consider that; that that has not to think about they are parole, on or innocence. And nothing your guilt to do with absolutely to instruction to such an are entitled you I believe glad give to it I that I will be you to know jury, and want I, personally, to And it. you I think are entitled because protection. it own ought your to for you have think to Mr. coin, I have talked But, on the other side it, and is trial about Flinchbaugh counsel] [Appellant’s stage, may at this it said that respects. in some He correct it may not have jury picked prejudicial be more So, at this may forgotten. have parole, they up; about jury to have the date, you to prejudicial be more may late not. than parole on this business instructed to And the we decide. question that have And that’s the your here with you I talk to on the record want to reason Ness, Attorney, is District counsel, incidentally, Mr. But I engagement. talked has another not here. He him, in fairness and to do. I think going I was about what I you, will I think in fairness you, fair to trying I’m be you an opportunity I will up you. give decision leave the by your I will Flinchbaugh it. abide talk to Mr. about decision. added). at (emphasis
N.T. 3-4 1/19/84 parte Ex is as: defined for, in behalf .party; or for one done only; by side
On one judicial A of, of, only. one application party or etc., parte order, said to be ex injunction, proceeding, instance and granted or when it is taken to, or contesta- without notice party only, of one benefit any person adversely interested. tion Ed.1979). Dictionary 5th (p. Black’s Law presided had over judge first note the who We to review judge in 1984 was also first murder was, therefore, petition; PCRA the court Appellant’s communica- familiar -with the circumstance personally court, claim, discussing opinion tion. The PCRA its that it had: stated
464
a procedural issue that the court wanted convey to to counsel. Because the Commonwealth was unavailable to meet in chambers with [Appellant’s] counsel, trial [Appel- court, and the lant] the court informed the Common- of wealth what the court was going to do. The trial court
placed on the record that the court had talked prior Commonwealth meeting with [Appellant’s] trial counsel and [Appellant]. was parte There no ex communi- case; of instead, cation procedural there was a issue brought to counsel’s attention in progression.
PCRA Court Opinion at 48-44. We agree This, with the of characterization the court. cou- pled with the absence of by any claim of prejudice communication, because of the convinces us that claim this is without merit.9
D. MISCELLANEOUS CLAIMS
1. Aggravating Circumstance Appellant next claims that his death sentence should it be vacated because was based on an aggravating circum (that Appellant significant
stance
had “a
history
felony
of
involving
convictions
the use or threat
of violence
§ 9711(d)(9)),
42
person”
Pa.C.S.
which is unconstitutionally
Florida,
vague.
v.
Espinosa
1079,
cites to
505 U.S.
2926,
(1992),
112 S.Ct.
9. See Commonwealth v. 432 A.2d 40 639 (1994), Superior grant which Court a new trial refused on a parte ex defendant’s claim of communications between the trial court attorney no on and the Commonwealth’s found evidence way judge any record that the trial influenced the communi doing parte ex cation. In so the court stated "even if the improper, were in the absence evidence of influ communications 492, ence, grant a new Id. at there is no basis for the trial.” 639 25, 27, Bradley, 501 A.2d at 44. See Commonwealth v. Pa. 459 also (1983), only parte A.2d wherein this Court held "that those ex jury likely prejudice communications between a court and which are party require will reversal.” the claim that rejected reviewed and already This has Court 9711(d)(9) § 42 Pa.C.S. circumstance aggravating Rivers, vague. See unconstitutionally Therefore, (1994). no is due relief A.2d 710 Pa. claim. Testimony 2. Notes of review is meaningful appellate argues next of the trial transcript and accurate a full without impossible transcripts baldly states that the and then proceedings, court full accu- are not sentencing proceedings his trial *26 argument in or information no further provides He rate. support of this claim. January court, in in its addressing this issue
The PCRA 31, 1990, July its of prior opinion to referred opinion, had not transcript that the trial found as a fact wherein detriment. anyone Appellant’s to by altered been and no finding, no reason disturb us with presented has fact, are, in transcripts provided that the to conclude reason full and accurate. not Error” Claim
3. “Cumulative if we find even claim is penultimate claim raised any particular relief on not that is entitled the cumula above, entitled relief he is nevertheless a fair trial. He cites deny him of errors was tive effect of this argument support no authority makes no Further, determined that the PCRA court proposition. record, Appellant’s conviction totality, supported its taken in no sentence, reason to presented been with and we have ruling. disturb Claim Evidentiary Hearing
4. raised in his that all claims Finally, Appellant argues a full and hearing require evidentiary an petition PCRA resolution of the issues. fair Procedure, of Pennsylvania
The Rules Criminal petition, provided Appellant filed PCRA effect at the time hearing a on all material judge order that the PCRA should of issues fact raised in the petition answer. Pa.R.Crim.P. However, Rule 1507 (“Disposition Without Hearing”) (a) provided at subsection judge “[i]f is satisfied from [his or review her] [of that there record] are no genuine any issues concerning material fact and that the defendant is not post-conviction entitled to relief, collateral and that no purpose would by any be served further proceedings”, a hearing required. “The of purpose Rules 1507 and 1508 is to assure that an evidentiary be hearing post- held on a conviction if petition there are factual issues be resolved. However, where there disputed issues, are no factual an evidentiary hearing is not required under the rules.” Com Morris, monwealth v. 306-07, 1037, 1042 684 A.2d (1996) (citation omitted). addition, In if a petition presents not, some issues that require hearing and some do Rule 1507(c)provides judge “may that the dispose only of part motion a hearing ordering without dismissal of or granting raised, relief on only some the issues while ordering a on hearing the other issues.” matter, court,
In the instant the PCRA after review the pleadings, dismissed the majority with- Appellant’s claims out a court hearing. The did however order a hearing claims that the Commonwealth knowingly exculpato- withheld ry knowingly evidence and presented testimony through false *27 hearing Ms. Emmil. The on was held March witness 1997, at the end of which the court found as fact that the Commonwealth did not withhold knowingly any exculpatory or evidence false evidence its of Ms. through handling present Emmil. Accordingly, view fact that the PCRA court an grant evidentiary hearing did on issues those fact, that raised material issues of he is not entitled to relief final claim.
IV. CONCLUSION claims, reviewing we find no basis Appellant’s After each Accordingly, on which him affirm the grant relief. we orders the PCRA court. Concurring Opinion.
Justice NIGRO files concurring. NIGRO, Justice, to address separately but write join majority opinion, I testimony regarding Enriquez’s that Ms. claim hearsay. inadmissible Emmil were by Ms. made statements Enriquez, he of Ms. examination During prosecutor’s evening of to her on the Emmil had said Ms. asked her what said [Ms. Emmil] “She responded: Enriquez Ms. killing. with something and do in his go pocket [Appellant] seen she fence.” N.T. it over the it off throw knife and clean in footnote holding majority’s agree 74. I with p. 1/18/84 not violate the Confrontation did response Ms. Enriquez’s cross-examined and was Emmil testified since Ms. Clause Likewise, Ms. Emmil testified since at his trial. Ms. testimony as to trial, Enriquez’s Ms. I suggest would into admitted properly out court statement Emmil’s to the exception an evidence, it meets regardless of whether hearsay rule.
725 A.2d Pennsylvania, Appellee, v. COMMONWEALTH ANDERS, Jr., Appellant. Wayne Joseph Pennsylvania. Supreme Court of 19, 1998. Submitted Nov. Feb.
Decided